Assistant Professor Darcy Lindberg, a specialist in nêhiyaw (Plains Cree) constitutionalism at the University of Alberta Faculty of Law, examines how Indigenous legal traditions can expand our understanding of laws and constitutions in his latest publication.
His commentary, "Drawing upon the Wealth of Indigenous Laws in the Yukon," appears in a special issue of the peer-reviewed publication, the "Northern Review."
Lindberg advocates for more recognition of the positive potential of constitutional pluralism, where multiple legal systems overlap and coexist in one place.
He uses the Yukon as his case study, a territory where there are multiple legal traditions and Indigenous and non-Indigenous peoples have close, interdependent relationships.
The Yukon is a unique case study because of its Final Agreements, in which the federal government, the Yukon government and individual First Nations enter into "modern day treaties," and also its Self-Government Agreements, which give First Nations the power to enact their own laws.
Under these agreements, First Nations establish their constitutions.
Indigenous constitutions are living and ever-changing expressions of a particular nation's knowledge and principles, grounded by their territory. Constitutions express what it means to be a member of that community, says Lindberg.
But Indigenous legal traditions and constitutions do not always translate well to the non-Indigenous concept of written legislation.
Lindberg challenges lawyers and non-Indigenous Yukoners to approach Indigenous legal practices with a broad understanding of constitutionalism, outlining three approaches: linguistic, source of law and storied.
The "linguistic approach" centres on how language brings a depth of meaning to Indigenous legal traditions. The "source of law approach" places legal traditions in their contexts. The "storied approach" recognizes how stories allow deeper understanding of legal principles.
Each approach requires meaningful engagement with a nation's knowledge, traditions, practices and peoples.
"Working through the potential conflicts that the overlapping operation of common law and Indigenous legal practices create provides an opportunity for non-Indigenous Yukoners to access, understand, and walk in a correct way toward Indigenous legal traditions." writes Lindberg. "This is a substantive form of reconciliation."