Reclaiming Law as Care

It would be so simple if all we had to do with laws was follow them. At a fundamental level, of course (one largely unacknowledged by colonial legal systems) this is true: the natural world is our universal, unavoidable legislator. Nature’s decrees, conditions and judgments – especially judgments – can be harsh and unpredictable, but as most peoples across most times have known or learned, her authority cannot long be denied. Among my reasons for deeply respecting Indigenous legal orders is in how they both recognize and work with Earth (land, water, air and all other-than-human beings) as one of law’s most important sources and authorities. There are stories in every tradition that caution of the consequences of forgetting this.

At the same time, law is also an essentially human practice. As my old boss and forever-mentor Val Napoleon says, it is something people actually do. And it can be done in many ways: some that nourish people’s dignity, agency and relationships, and some that undermine them. Laws, just as humans, are fallible and vulnerable to the manipulations and corruptions of those who use them with designs to keep or acquire power over others (including, in our hubris, Creation herself). So we check, we balance, we devise systems that attempt to prevent strength and law from too closely coinciding. But these, too, as we’re seeing down south, can be twisted towards failure.

While liberal democracies may be (to paraphrase Churchill) the least worst option for nation-states trying to maintain their rules of law, Indigenous societies have long practiced other (but arguably no less democratic) means for upholding laws that meet human needs and centre human dignities, while also respecting the relationships that bind all life. This is law, not as talisman of human power, but as visible testament to human care.   

Last month I attended a two-day conference on these themes, “Jurisdiction Back: Restoring Indigenous Governance through an Ethic of Care”. I won’t (and can’t) sum up the richness of these discussions. Here I simply draw on a few threads that show how law, so often seen as a sword or a shield, can actually work as an embrace.

It is important to understand that although the images may be soft, the work is often hard. Brianna Bear, a lək̓ʷəŋən artist and member of Victoria’s City Family of Songhees, Kosampsum and urban Indigenous relations, spoke of the trust that Victoria had to build before the Nations allowed the city to bring their people into its formal reconciliation work. The city had to unlearn and relearn expectations of shared governance. The City Family held firm to implementing Salish governance structures within the municipal framework. Authorities unused to hearing “no” had to accept, step back and start again. This patient, ongoing (re)building, Brianna said, is starting to show what it means to responsibly care for the Indigenous people, lands and laws that persist in newer jurisdictional spaces.

Turtle Mountain Ojibwe Professor Heidi Kiiwetinepinesiik Stark looked squarely at caring’s (inconsistent) application within contexts of conflict and harm. Indigenous people have had to contend with coercive, externally imposed approaches to justice (predicated on punishing wrongdoers) that are often in abject tension with the need to re-establish right relations in such situations. But, she said, when people can use law “as a means to build the world we want to live in”, this tension lessens. It starts with empowering a fact: we are all, already, in relationship. Law, as a generative, internalized framework, can be the guide for living our relationality, even (especially) in the most challenging circumstances. Heidi sketched an outline of how Anishinaabe law’s “relational web of kin obligations” generates accountability, working to restore wholeness from the binary schisms of interpersonal harm and inter-generational trauma. But returning to embodied practices, in the fraught context of many communities, can be uneven, uncomfortable, sometimes unsafe. She told us an Anishinaabe story of a woman who, wounded by a love gone wrong, hid her heart in her toe and turned into a bear of unquenchable rage. She could not be killed, but nor could she care. To be whole, Heidi ended, isn’t necessarily about being completely healed, but “to have access to all that we are”. Wholeness is personal and collective: repairing and upholding Indigenous laws and governance must happen simultaneously (and is even synonymous) with restoring kin relations.

Tanana Athabascan scholar Dian Millian reflected on living outside her own territory, of working to be in right relationship with “the land that governs us” and the order she and other urban Indigenous people recognized as upheld by their host Nations. This recognition, she said, brings people into relations of care and makes possible a deep coherence within the diversities and complexities of a shared space: “an order develops anyplace we care about each other”.

Law’s living bedrock of Indigenous lifeways was a recurring theme. As Suniimtunaat, Stephanie Atleo, told us, “we know how to take care (of babies, families, communities, territories)”. The work lies in bringing the tools, skills and knowledge Indigenous peoples have always had into the systems they now have/have to work with. The work also lies in pushing against and pushing past these systems. Because, as one speaker reflected, “embodying who we are is always contrary to colonial orders. Their systems are always anonymizing systems”.

 In this spirit, people used specific teachings, in specific languages, to share how this ethic of care manifests in specific legal orders. I relished the spread as I did the convergences. Both are essential to recovering the Canada that legal pluralism has – and can– build. We were fed with Haudenosaunee thanksgivings, Hulq’i’minum reciprocities, Dakelh accountabilities to land and kin. We learned about Tsilhqot’in care through fire and Anishinaabe care for Naame (sturgeon) and Nibi (water) along the Attawapiskat River. How living, flowing networks, on the land as in families, persist in opposition to the dismemberments of reserves and the inducements of extractive industries. As powerful as these machinations have been, they have not displaced the river’s fluid homelands nor the relationships that connect its length. And relationships are the lifeblood of Indigenous law.   

These languages, these concepts, these experiences of and as “law” may sit strangely for those of us hardened by its black letters, by the books and boxes by which many legal professionals find clarity, comfort, control and expertise. While conversations across these divides are quickening, several speakers told of the distortions that still mark courts’ and other non-Indigenous legal institutions’ “recognitions” of Indigenous laws. They described a typical hourglass: how the full breadth of Indigenous laws and lifeways is squeezed into a distillation of what an external authority might use in a specific case, with the broader, often unintended aftereffects of these interpretations (however well-meaning) born by communities. How to undo these distortions? How to re-establish and protect laws’ integrity? There must be limits, some said, to the generosity that leads Indigenous peoples to gift what is precious.    

For those, like myself, who are such eager recipients of these gifts, it is clear that we need to accept them humbly, respectfully and with a commensurate ethic of care: laws, like people, possessions, or any properties of land or thought, never stand alone. To engage is to relate. To relate is to be responsible. Every one of us has a part here. We need to be careful about how we play ours.