Understanding and applying Indigenous legal concepts could address the distrust and disconnection between people in a way criminal trials do not.
Colten Boushie was Cree. He was a member of Red Pheasant First Nation and lived in Treaty 6 territory, but we did not see Cree legal principles applied in the aftermath of his death, in the investigation or in the trial of Gerald Stanley for killing him.
The Department of Justice Canada explains that a primary purpose of law is to “ help to ensure a safe and peaceful society .” Yet one of the broader narratives behind the specific legal issues and legally relevant facts in the Gerald Stanley case is one of fear and lawlessness. Some people maintain that the issue is not about race or racism, but rather about rural crime and farmers living in fear on isolated farms. Other people see the issue as one involving a deep-seated racism that dehumanizes Indigenous peoples and devalues Indigenous lives. Both groups appear to feel that Canadian law has failed to deliver on its promise of a peaceful and safe society. Could Cree law have made a difference?
The myth of a lawless Indigenous people
Speculating on how specific Cree legal principles might be applied to the facts of this case is less useful than considering how the recognition and application of Indigenous laws, generally, can play a part in restoring a sense of a peaceful and safe society. Indigenous laws can be deeply rooted or newly developed rules, principles and processes that Indigenous peoples think through and use to manage relationships, resolve disputes and maintain safety, peace and order within and between communities. As the Cree legal scholar Val Napoleon points out , while each society’s laws are unique, all laws are intellectual resources that are concerned with the same universal human concerns that Canadian law is, “including community safety, fairness, and accountability.”
Indigenous laws predate other legal sources in Canada, and the Supreme Court has recognized that Indigenous laws continue to be valid, along with Canada’s other legal traditions: the common law (from England) and the civil law (from France). There are documented examples of non-Indigenous people during the time of the fur trade deferring to Indigenous laws and legal authorities, and even following them in matters of trade or marriage.
Indigenous laws stopped being recognized as laws when colonial interests turned from the fur trade toward land acquisition and western expansion, which was not reliant on good relations with Indigenous peoples. Several influential European thinkers, most of whom had never been to North America, let alone met an Indigenous person, developed a myth of lawless Indigenous people as a trope in their political and legal theories. This myth was not logical — there is no such thing as a group of people with no social or moral order. This myth also ran counter to what was experienced and witnessed in what is now Canada by Indigenous peoples for thousands of years and by non-Indigenous people for hundreds of years.
What has followed this myth of lawlessness can most aptly be described as intergenerational injustice for Indigenous people. Legitimate, effective, pre-existing Indigenous laws that Indigenous peoples relied on to maintain safety, peace and order were derided, dismissed or even criminalized in some cases. At the same time, Indigenous people have never had adequate access to the promises of safety, peace and order from the Euro-Canadian legal system. A sense of the scale of this injustice can be found in the Missing and Murdered Indigenous Women and Girls Inquiry’s 233-page master list of recommendations , collected from […]
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