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How can a story be law?

Updated: Dec 7, 2023



“We take the stories that have actually been brought down for generations because they have value. Even though some of them sound horrible and terrible to different cultures, for the Omushkego culture it is a necessary type of teaching system. It saves lives. It saves the families. It saves the children” -Louis Bird, The Spirit Lives in the Mind [1]


Tansi Ninôtemik,


Welcome to ReconciliACTION’s last week of posts for 2023. We hope you’ve enjoyed our new format, and are looking forward to our upcoming plans for the new year.


Today’s post introduces the Narrative Analysis Method for engaging with Indigenous laws. Research methods for engaging with Indigenous laws have been transformed over the years. Dr. Hadley Freidland and Dr. Val Napoleon’s iteration is what we will be exploring today.[2]


The Narrative Analysis Method is built on the idea that stories, and oral histories are a source of Indigenous Legal Traditions. Just like a piece of legislation, a story can articulate, transmit, and encourage fidelity to a community’s legal values. In Indigenous traditions, the purpose of repeating oral accounts of the past or telling stories is broader than that of written history in western societies.[3] Telling stories functions to educate, communicate aspects of culture, socialize into the cultural tradition or validate claims.[4] Omushkego storyteller Louis Bird compares the stories of his people to religious laws, such as the Ten Commandments. However, rather than telling people what not to do, “[w]ith the First Nation Omushkego, they tell you the stories that actually happened - and in listening to it, we learn to avoid it.”[5]


Indigenous stories can take a number of forms, including formal and collectively owned, legal cases (both ancient and recent), recordings of relationships and obligations, recordings of decisions and resolutions, outlines of legal norms, grantings of authority, outlines of legal processes, personal anecdotes and records of violations or abuses of powers, including the responses and consequence of these breaches.[6]


Courts first recognized oral history as a source of law in the title case Delgamuukw.[7] Oral histories are rich and can have multiple interpretations. The purpose or meaning of a story may vary based on the context or circumstances in which it is told, the identity and role of the storyteller, and the interpretation of the listener.[8] For instance, as written about previously, Inuit communities repeat and adapt stories in order to teach children based on the lesson they need to learn, until they become developed as a part of the child’s personality- called Inunnguiniq- or part of the process of making a human being.[9]


The Narrative Analysis Method was developed to fill a gap and engage with Indigenous laws in a meaningful and respectful way, supplementing rather than replacing current approaches.[10] This method supports communities by extracting the rich law embedded in their stories. Lawyers and legal scholars trained in the western tradition may find this method useful in order to keep abreast of Indigenous legal reasoning.


Dr John Borrows first created a single case story analysis, which was built on by Napoleon in a multi-case context and built upon by Friedland, who shaped it into a Story Analysis and Synthesis. Napoleon and Friedland then created the Narrative Analysis Method after seeking and receiving community feedback and engagement.[11]


In order to use the Narrative Analysis Method, a researcher should start with a narrow and grounded research question focused on resolving a real-life problem.[12] This Method helps the researcher ask better questions, which leads to deeper discussions and more substantive results. A researcher can be anyone, from a community member to a student, as long as engagement is done in a respectful way rooted in honest communication.


Once the question is considered, a case analysis will occur. This includes case briefing stories and oral histories from multiple sources, making sure specific Nations and individuals (if possible) are cited. The case analysis can also include stories, interviews, practices and more, organized in a transparent manner.[13] A case brief asks about the main human problem (the specific research question previously determined), the relevant facts, the actions that resolved the problem, the stated and unstated reasons behind this decision, and a bracket for questions or context which are not necessary to analyzing the main issue.[14]


When the analysis is complete, a framework will be created in collaboration with and between communities.[15] A framework should be able to be built upon and should give context to the reader. Communities often have very different interpretations of stories, or feedback which will add context to an oral history. A framework will eventually look like a large summary which should organize all the information in an easily accessible way.[16]


Before a framework is finished, it must be brought back to the community to clear up questions, interview knowledge keepers, and eventually to be approved by them. Once the framework is modified based on community engagement, a final report is prepared. The report should be applied to the original question, and allow for feedback and reflections from those implementing it. The idea behind this framework is that it can be updated and built upon in the future.[17]


We will be using this method to analyze stories from the Secwépemc Nation on Friday.


See you then!


-The ReconciliACTION YEG Team


CItations

[1] Louis Bird, The Spirit Lives in the Mind ed by Susan Elaine Gray at 23 McGill-Queens University Press (Montreal, Quebec, Kingston 2007)

[2] Hadley Friedland and Val Napoleon, “Gathering the Threads: Developing a Methodology for Researching and Rebuilding Indigenous Legal Traditions.” (2015) 1(1) LLJ at 33 <https://www.uvic.ca/law/assets/docs/ilru/Gathering%20the%20Threads%20Lakehead%20Law%20Journal%202015%20Friedland%20Napoleon%20.pdf>.

[3] Report of the Royal Commission on Aboriginal Peoples: Looking Forward, Looking Back, vol 1 (Ottawa: Supply and Services Canada, 1996) at p 38 [RCAP].

[4] Ibid.

[5] Supra note 1 at 4.

[6] Supra note 3.

[7] Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010.

[8] Val Napoleon and Hadley Friedland, “An Inside Job: Engaging with Indigenous Legal Traditions through Stories” (2016) 61:4 McGill LJ at 738.

[9] Joe Karetak, Frank Tester & Shirley Tagalik, eds, Inuit Quajimajatugangit: What Inuit Have Always Known to Be True, (Halifax & Winnipeg: Fernwood Publishing, 2017) at 4.

[10] Supra note 2 at 30.

[11] Ibid.

[12] Ibid at 20.

[13] Ibid at 22-23.

[14] Ibid at 23.

[15] Supra note 2 at 27.

[16] Ibid at 29.

[17] Ibid at 28.


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