Bridging Voices of Indigenous Law Scholarship: Reflective Notes of a Law Student

By Author - Yeji Kim

Susa Creek, Aseniwuche Winewak Nation. Photo by Jacquie Page

Yeji Kim is a graduating law student and Research Assistant at the Wahkohtowin Law and Governance Lodge. As the eldest daughter of a Korean immigrant family, Yeji brings her diverse perspective and legal knowledge to the research team.

In early July, I was able to attend the University of Alberta Faculty of Law class LAW 589 Wahkohtowin Intensive: Miyo-wîchêtowin Principles and Practices held primarily at Susa Creek, located in Aseniwuche Winewak Nation territory near Grande Cache, Alberta. The course, which centers its pedagogy on the practice of traditional moose hide-tanning, also provided immersive Indigenous law learning opportunities through picking berries, collaborating with community youth to assemble a photobook of teachings, and participating in a round dance. Before traveling to Susa Creek, students also engaged with a range of seminar readings, some of which I bring together here to connect to a broader conversation on Indigenous legal discourse.

In my experience, a limited familiarity with existing scholarship on Indigenous law can hinder meaningful engagement before it even has the opportunity to develop. As Hadley Friedland observes, “even people who want to engage more deeply with Indigenous legal traditions struggle to understand how to do so” (Friedland, “Reflective Frameworks: Methods for Accessing, Understanding and Applying Indigenous Laws” at 3). This course offered a great starting point for this engagement. When looking at the depth of Indigenous legal literature, I found that these texts can be read relationally, as part of an interconnected body of discourse illuminating the multi-layered challenges Indigenous communities face in sustaining their legal traditions but also the gifts in doing so.

In a fast-paced world driven by technicalities, we often forget what law is. It is easy to become overly preoccupied with justifying the current reality – a reality where, as Harold Cardinal observes, “[t]hose who sought to maintain and strengthen their original identity became, over time, the minority” (Cardinal, “Nation-Building as Process: Reflections of a Nihiyow [Cree]” at 68). To recenter my understanding, I return to Dr. Val Napoleon’s article, “What is Indigenous Law? A Small Discussion,” where she defines law as [...] a distinct form of governance” that “[...] is essential to social order in all societies” (Napoleon at 4). As Napoleon emphasizes, “[i]n its best form, the enterprise of law centres on human beings as interpretive agents who are capable of purposive action, and who are deserving of dignity” (at 4). 

Like all law, Indigenous law strives for this ideal. And again like all law, it is not without internal dissonance. John Borrows identifies at least five sources of Indigenous law, including natural laws (law from the earth), but cautions against viewing each as “separate or artificially watertight” (as cited in Napoleon at 3). Rather, these sources themselves can be analyzed critically and relationally, as they interact in a complex practice of legal principles. Such engagement requires neither their uncritical acceptance nor their reduction to “breakable” entities under the pretense of undoing colonialism, but instead a robust examination of how they evolve and acquire meaning within the broader legal landscape. 

What I am still learning is that Indigenous law is a form of governance sustained through living practices that are transmitted across generations. Lindsay Borrows and Jessica Eisen’s work in “Our More-than-Human Constitutions” reflects this intergenerational repository of legal traditions. They state that regions governed by multiple legal orders must address planetary legal issues collaboratively, “even as this truth embeds all of us in histories of tragedy, violence, resilience, and renewal” (Borrows & Eisen at 178).  Importantly, an “interjural” conversation does not mean ignoring the realities of historical injustice on one end of the spectrum or the illusion of absolute juridical incompatibility on the other. Rather, it compels me to ask: how might we reimagine an evolving Canadian legal theory?

Through this course, I sought to engage with Indigenous legal scholarship by approaching it as an interconnected web, which encourages me to explore “within and across legal orders” to overcome “the limits of the human gaze, and [uncover] the potential to extend those limits through diligence and openness to lessons from the Land and those who know her well” (Borrows and Eisen at 208). Borrows and Eisen’s interpretation of “our” to describe the interconnected constitutional relations between human and Earth points to an interspecies law already well developed in Indigenous constitutional theory. To me, the commitment to govern and sustain “our” shared life on this planet is the purpose of Canada’s legal system, and for which an interjural management is critical. This course offered a stepping stone on this reflection – that is, thinking about what a reimagined legal paradigm could look like.

Until next time, 

ReconciliACTION YEG