Plenary Session #2 Professor Kirsten Anker

1. Plenary Session #2Professor Kirsten Anker • Indigenous law? • Aboriginal legal orders? • First Nations jurisprudence? • Chthonic legal tradition?

2. Lecture Themes • Status of indigenous law in Canada • The method question • The justice question • Two specific legal traditions

3. Hoebbel and Llewellyn How to investigate Cheyenne law? • The ideological path – rules, ideal patterns, right ways • The descriptive path – actual patterns of behaviour • The trouble case – the view that prevails when things go wrong, what is imperative and not just proper

4. “What do you mean by your “law”?” … Witness: “I’m asking too: what is ‘the law’ means? … Counsel: “ You said ‘Under our law, we line the turtle shells up.’ … W: “When I’m using English, well, you should know better than me… I just pick up the English, ‘law.’ The law been there forever. You call it law; I call it rom.

5. Absence of Law? Maurile de Saint-Michel 1652: “Ils n'ont ni foi,ni loi, ni roi.” Hobbes 1660: “During the time men live without a common power to keep them all in awe, they are in that condition which is called war; and such a war as is of every man against every man.” Locke 1690: “Thus in the beginning all the world was America.” De Vattel 1758: “Their uncertain occupation of these vast regions cannot be held as real and lawful possession.”

6. Hudson Bay Co Charter 1670 • And further We do by these Presents for Us, our Heirs and Successors, make, create and constitute the said Governor and Company for the time being, and their Successors, the true and absolute Lords and Proprietors of the same Territory, limits and places, and all the other Premises.

7. Recognition, non-Recognition and Prohibition of Aboriginal Law • Trade • Treaties • Royal Proclamation • Marriage and adoption • Indian Act prohibitions • Aboriginal title and rights • Sentencing • Civil damages • Questions of subjective state of mind

8. James Sakej Henderson (Director, Native Law Centre, University of Saskatchewan) “Comprehending First Nations Jurisprudence” Paper presented at University of Toronto, January 26, 2007 (http://mediacast.ic.utoronto.ca/20070127-IndLaw2-3/index.htm#)

9. James Sakej Henderson • “On our terms” • Law as a dream (vs ideology, trouble or description) • Protocol dilemma relating to ceremonies • No instinct for being universal, no privileged position on the law • The “flux” or implicate order • The opera analogy

10. John Borrows • FN law is a fact of life that has persisted • Canadian law on Aboriginal peoples evolved from “inter-societal” law • FN law forms part of the family of legal traditions in Canada, can be a more general resource • FN legal sources can be translated to be accessible to outsiders

11. Functional/Structural Approach • Llewellyn & Hoebel, The Cheyenne Way • The killing of a Cheyenne by another Cheyenne is a sin which bloodies the Sacred Arrows and endangers the people; it is a crime against the peace and the people, and normally within the exclusive jurisdiction of the tribal authorities.   • The rule that the kin of the victim of a killing are privileged to seek self-redress in their own right, or to retaliate, is no longer law. However, the authorities are directed to take due account of the natural feelings of the victim's kin.   • It is the expected duty of every citizen, and especially of the military societies, to intervene in disputes before they reach the stage of killing.

12. Functional/Structural Approach • Casimel v Insurance Co of BC (1993) • Grandparents were effectively parents under customary adoption • Delgamuukw v BC (1997) • Proving “organized society” • R v Gladstone (1996) • Intertribal trade characterized as “commercial” right • R v Marshall; R v Bernard (2005) • Translating use of land into “exclusive occupation” • Neowarra v Western Australia (2003) • Existence of rules (on “right way” marriage) demonstrated by conforming behaviour and disapproval of breach

13. Interpretive Approach • Clifford Geertz – haqq, adat, dharma • Delgamuukw – “due weight to the perspective of aboriginal peoples” • R v Marshall; R v Bernard (Le Bel J) – “aboriginal conceptions … should be used to modify and adapt the traditional common law concepts of property”

14. Gitxsan Daxgyet – power Wilp – “house” Lax’wiiyip – territory Ayuuks – symbols of title Adaawks – formal history Ayook – precedent Li’ligit – feast Wams – status names

15. Poetic translation… • Invisible translator • “Hanging above the hall they chant their song of hate” • Lattimore’s translation of Agamemnon • The mark of the foreign • “They hymn their hymn – within the house close sitting – the first beginning curse” • Browning’s translation of Agamemnon

16. My points… • Law is translation – the trickster rather than “our terms” v assimilation • Translation is an constructive activity, in a context • The visible translator – centaur idiom makes space for new meaning

17. Ngurrara Canvas 1997

18. Song lines…

19. Arrernte • Altjeringa – the “dreaming”, men of old, eternity, story • Tjuringa – sacred object • Impatye – footprint, tracks • Kwertengerle – managers • Pepe – God’s law

20. The “skin” system