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.

Intergenerational injustice

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 past reports on stemming the violence perpetrated against Indigenous women and girls.

The Department of Justice website about the purpose of law asks the reader to “imagine the chaos — and the danger — if there were no laws. The strongest people would be in control and people would live in fear.” As a non-Indigenous legal scholar, who lives in relation with Indigenous loved ones as a partner, mother, aunty and friend, this is actually not something I have to work very hard to imagine.

Behind the studies and statistics, there is story after story after story of Indigenous lives not mattering, suspected murders where no one is ever charged, charges laid, then dropped, or inexplicable acquittals. The response of my Indigenous contemporaries to the Stanley trial verdict was most typically a list of similar stories from within their own lifetimes, families and social networks. Another common story is that police don’t come when you call, or when they do, they may brutalize loved ones or otherwise increase the safety risks. Where there is non-Indigenous-on-Indigenous violence, theft, threats or property damage, there is often a sense that there is just no point in calling at all — it’s not effective. Calling the police rarely helps solve the problem or stops the violence. If it does, it does so only momentarily. So Indigenous people are too often left with a roll of the dice, in matters of life and death.

Revitalizing and drawing from Indigenous laws

Despite being dismissed for so long, Indigenous laws continue to exist and persist in Canada, and the intellectual processes, ceremonies and practices are valuable resources that can be drawn on to resolve conflicts and restore peace. The TRC final report states that “establishing respectful relationships…requires the revitalization of Indigenous laws and legal traditions.”

We did not see Cree legal decision-makers, legal procedures or principles recognized or applied in the Stanley trial. However, we did see the principled application of Cree legal principles in the actions of Red Pheasant Nation members who sat with Boushie’s family through the Stanley trial, in the outpourings of support, in the peaceful protests. We were witnessing Cree legal responsibilities in action when Chief Bobby Cameron of the Federation of Sovereign Indigenous Nations called for peace at the request of Boushie’s family, when memorial feasts took place for Boushie, when Boushie’s family spoke at rallies, and when they talked to Justice Minister Jody Wilson-Raybould, Assembly of First Nations National Chief Perry Bellegarde and others about preventing future harms.

As it has been taught to me, in Cree and Métis legal traditions, wahkohtowin is an overarching legal principle that roughly translates into “relatedness” or “interdependence” and describes a world of relationships rather than a society of strangers.(While I have been gifted with many teachers, my greatest teacher regarding wahkohtowin has been my mother-in-law, Adelaide McDonald, who was a respected elder from the Aseniwuche Winewak Nation.) The Métis elder Maria Campbell explains that wahkohtowin includes “responsibilities and reciprocal obligations” we hold in relation to one another. While a legal concept like wahkohtowin is complex and encompasses many principles, it includes responsibilities from relationships within treaties and between communities, as well as responsibilities to one’s own family and community.

During the Stanley trial, the people that came to support Boushie’s family and the Stanley family sat divided in the courtroom. The two groups were virtual strangers to one another, although many live in close physical proximity and all are in an underlying treaty relationship that was supposed to establish the conditions for “peaceful coexistence.” Their relationships with each other, and the territory they were on, were invisible. No question was raised, or was even possible, of what their reciprocal obligations were toward restoring right relationships in the wake of the terrible loss of Colten Boushie.

Following the verdict, there were ugly expressions of hate and racism. But we also saw the building of relationships as many non-Indigenous Canadians spoke out, wrote letters, attended protests and called for justice for Colten. Serious engagement with Indigenous legal concepts, like wahkohtowin, may deepen our understanding of our responsibilities to one another, and could address the aspects of trauma and violent loss that no Canadian criminal trial ever can: overcoming the distrust and disconnection between people.

This article is part of What can we learn from the Stanley trial? special feature.

Photo: Colten Boushie’s uncle Alvin Baptiste raises an eagle’s wing as demonstrators gather outside of the courthouse in North Battleford, Sask., on February 10, 2018. THE CANADIAN PRESS/Matt Smith


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