Table Of ContentReclaiming
the
Language
of
Law:
The
Contemporary
Articulation
and
Application
of
Cree
Legal
Principles
in
Canada
by
Hadley
Louise
Friedland
A
thesis
submitted
in
partial
fulfillment
of
the
requirements
for
the
degree
of
Doctor
of
Philosophy
Faculty
of
Law
University
of
Alberta
©
Hadley
Louise
Friedland,
2016
Abstract
The
Truth
and
Reconciliation
Commission
of
Canada
states
the
revitalization
and
application
of
Indigenous
laws
is
vital
for
re-‐establishing
respectful
relations
in
Canada.
It
is
also
vital
for
restoring
and
maintaining
safety,
peace
and
order
in
Indigenous
communities.
This
thesis
explores
how
to
accomplish
this
objective.
It
examines
current
challenges,
resources
and
opportunities
for
recovering,
learning
and
practicing
Indigenous
laws.
It
develops
a
highly
structured
methodology
for
serious
and
sustained
engagement
with
Indigenous
legal
traditions,
based
on
reviewing
existing
methods,
then
combining
the
methods
of
two
leading
Indigenous
legal
scholars,
John
Borrows
and
Val
Napoleon.
This
method
approaches
Indigenous
stories
as
jurisprudence.
It
uses
adapted
legal
analysis
and
synthesis
to
identify
Indigenous
legal
principles
from
stories
and
oral
histories
and
organize
these
principles
into
a
rigorous
and
transparent
analytical
framework.
These
legal
principles
can
then
be
readily
accessed,
understood
and
applied.
This
thesis
demonstrates
this
adapted
legal
analysis
method
is
teachable,
transferable
and
replicable,
using
research
outcomes
of
Cree
legal
principles
responding
to
violence,
harms
and
conflicts.
Through
the
example
of
a
foundational
Cree
legal
principle,
“wah-ko-to-win”
(our
inter-‐relatedness),
it
demonstrates
how
this
method
can
also
deepen
our
understanding
of
background
or
‘meta-‐principles’
within
Indigenous
legal
traditions,
which
can
help
us
interpret,
apply
and
change
laws
in
legitimate
ways.
It
then
demonstrates
how
the
research
outcomes
from
this
method
may
be
understood
and
applied
by
Indigenous
communities,
through
a
case
study
exploring
the
development
of
a
contemporary
Cree
criminal
justice
process
ii
based
on
Cree
legal
principles,
by
and
with
the
Aseniwuche
Winewak.
Finally,
it
examines
the
current
narratives
about
the
appalling
rates
of
violence
against
and
over-‐incarceration
of
Indigenous
people
in
Canada
and
the
existing
gap
between
legitimacy
and
enforcement.
It
proposes
Indigenous
legal
reasoning
as
a
bridge,
and
develops
the
conceit
of
the
“reasonable
Cree
person”
to
examine
whether
principled
Cree
legal
reasoning
can
be
explicitly
recognized
and
implemented
within
Canada’s
current
political
and
legal
systems.
It
concludes
that,
while
there
are
many
potential
spaces
for
doing
so,
more
intellectual
work
is
necessary
first,
in
which
both
Indigenous
and
non-‐Indigenous
people
engage
with
Indigenous
laws
as
laws.
It
is
this
kind
of
deep
engagement
that
is
necessary
to
effectively
and
respectfully
operationalize
the
Truth
and
Reconciliation
Commission’s
compelling
calls
for
greater
recognition
of
Indigenous
laws
in
Canada.
iii
Preface
This
thesis
is
an
original
work
by
Hadley
Friedland.
The
research
project,
of
which
this
thesis
is
a
part,
received
research
ethics
approval
from
the
University
of
Alberta
Research
Ethics
Board,
Project
Name:
“Reclaiming
the
Language
of
Law:
Exploring
the
Contemporary
Articulation
and
Application
of
Cree
Legal
Principles
in
Canada”,
No.
Pro00049208,
April
27th,
2015.
Chapter
2
of
this
thesis
has
been
published
as
Hadley
Friedland,
“Reflective
Frameworks:
Methods
for
Accessing,
Understanding
and
Applying
Indigenous
Laws”
(2013)
11
(2)
Indigenous
Law
Journal
1.
Parts
of
this
thesis
are
reproduced
in
reports
that,
while
unpublished,
are
publically
available.
The
Cree
legal
summary
in
Chapter
3
has
been
reproduced
in
Hadley
Friedland,
The
AJR
Project
Cree
Legal
Traditions
Report
(May
2014),
prepared
for
the
Accessing
Justice
and
Reconciliation
Project,
on
file
with
the
University
of
Victoria
Indigenous
Law
Research
Unit,
the
Indigenous
Bar
Association,
the
Truth
and
Reconciliation
Commission
of
Canada,
the
Ontario
Law
Foundation,
and
the
Aseniwuche
Winewak,
online:
http://indigenousbar.ca/indigenouslaw/wpcontent/uploads/2012/12/cree_summ
ary.pdf.
I
relied
on
research
and
interviews
conducted
by
Kris
Statnyk,
Aaron
Mills
and
Carol
Wanyandie.
Maegan
Hough
and
Renee
McBeth
edited
it.
Some
of
the
results
and
discussion
in
Chapter
4
have
been
reproduced
in
Hadley
Friedland,
Aseniwuche
Winewak
Justice
Project
Report:
Creating
a
Cree
Legal
Process
Using
Cree
Legal
Principles
(October,
2015),
prepared
for
the
Aseniwuche
Winewak
Nation,
on
file
with
the
University
of
Victoria
Indigenous
Law
Research
Unit
and
the
Aseniwuche
Winewak.
I
relied
on
interviews
conducted
by
Kris
Statnyk
and
Carol
Wanyandie
and
research
conducted
by
Margot
Bishop,
Margaret
Lovely
and
Kris
Statnyk,
funded
through
the
Indigenous
Law
Research
Unit,
University
of
Victoria
Faculty
of
Law.
iv
Dedication
This
dissertation
is
dedicated
to
the
Aseniwuche
Winewak.
It
is
also
dedicated
to
the
memory
of
those
Aseniwuche
Winewak
elders
and
friends
who
had
an
enormous
influence
on
my
work
and
my
life,
and
passed
on
during
this
project.
Dean
Wanyandie
was
my
first
law
teacher,
and
started
me
on
this
path
with
a
story
by
a
river
many
years
ago.
He
never
flinched
from
talking
about
the
tough
stuff,
insisted
on
common
sense,
and
pushed
me
to
trust
myself
and
speak
honestly.
Lucy
Wanyandie’s
strength
and
endurance
was
unparalleled,
and
Marie
McDonald
embodied
love
and
acceptance.
My
brother-‐in-‐law,
James
Wanyandie,
a
gifted
and
gentle
man,
and
wonderful
father,
taught
me
so
much
about
the
power
of
kindness
and
generosity.
I
am
very
grateful
for
all
I
learned
from
you
during
your
time
here.
I
hope
you
recognize
the
rightness
and
dignity
of
your
decision-‐making
in
these
pages.
v
Acknowledgements
Many
people
and
organizations
supported
this
thesis.
This
project
would
not
have
been
possible
without
support
from
the
Social
Sciences
and
Humanities
Research
Council,
including
a
Vanier
Canada
Graduate
Scholarship
and
an
Impact
Talent
Award.
My
participation
in
the
Legitimus
Project
has
been
beneficial,
on
many
levels.
I
rely
heavily
on
my
learning
from
the
research
process
and
research
results
from
the
Accessing
Justice
and
Reconciliation
Project,
a
partnership
between
the
Indigenous
Law
Research
Unit,
University
of
Victoria
Faculty
of
Law,
the
Indigenous
Bar
Association
and
the
Truth
and
Reconciliation
Commission
of
Canada,
funded
by
the
Ontario
Law
Foundation.
I
am
grateful
to
have
had
the
opportunity,
in
my
role
as
research
coordinator,
to
apply
this
method
on
such
a
scale,
in
such
a
meaningful
project.
I
was
privileged
to
work
with
incredible
colleagues
and
participate
in
many
rich
conversations
in
communities
and
events
across
Canada.
These
people
and
experiences
have
all
contributed
immeasurably
to
this
work.
The
Aseniwuche
Winewak
Nation
was
a
true
partner
in
my
research.
This
thesis
is
deeply
informed
by
the
leadership,
elders
and
community
members’
goals,
vision,
guidance
and
generosity.
Thank
you
for
trusting
me
to
hear
and
honour
your
words
and
wisdom,
and
for
always
being
so
willing
to
contribute
your
unique
knowledge
in
order
to
teach
and
enrich
the
broader
community.
My
co-‐supervisors
and
committee
are
an
extraordinarily
brilliant,
inspiring
and
kind
group
of
scholars,
who
have
all
been
generous
with
their
time,
knowledge
and
support.
Thank
you
to
my
co-‐supervisor,
Val
Napoleon.
You
connected
worlds
and
opened
new
ones.
You
were
the
perfect
teacher
and
mentor
for
me.
You
provided
countless
unique
learning
opportunities.
Thank
you
to
my
co-‐supervisor
Mathew
Lewans,
for
your
staunch
support
and
encouragement,
as
well
as
your
advice,
insights
and
adept
infusion
of
legal
theory
that
so
enriched
my
work.
Thank
you
to
my
committee
members,
John
Borrows,
Janine
Brodie
and
George
Pavlich,
for
making
time
for
me
despite
your
many
responsibilities
and
other
demands.
I
also
must
say
that
my
own
work
would
not
even
be
imaginable
without
both
Val
and
John’s
groundbreaking
work
and
willingness
to
kindly
and
generously
support
and
guide
so
many
younger
scholars,
including
me.
I
hope
any
good
in
my
work
stands
as
a
tribute
to
your
own.
The
University
of
Alberta
Faculty
of
Law
has
been
a
warm
and
collegial
place
to
work
from.
Special
thanks
to
Mr.
Justice
Russell
Brown,
who
was
a
great
co-‐
supervisor
before
being
called
to
the
bench,
Eric
Adams
for
ably
chairing
both
my
candidacy
and
final
exams,
Linda
Reif,
who
was
a
smart,
kind
and
collegial
mentor,
during
and
after
her
time
as
Associate
Dean
of
Graduate
Studies,
and
Ted
DeCoste,
vi
who
taught
a
graduate
seminar
we
argued
our
way
through,
only
to
end
up
co-‐
writing
a
paper
together
by
the
end.
I
am
grateful
to
have
also
had
an
amazing
circle
of
diverse
interlocutors
during
this
work.
I
am
thankful
for
mentorship
and
role-‐modeling,
as
well
as
many
influential
and
enlightening
conversations
over
the
years
with
elders
and
community
members
from
Aseniwuche
Winewak,
including
Danny
McDonald,
Rachelle
McDonald,
Tom
McDonald,
Alice
Moberly,
Marianne
Moberly,
Edna
Wanyandie,
Robert
Wanyandie,
Vicky
Wanyandie
and
Brenda
Young,
as
well
as
elders
Adelaide
McDonald,
Mary
McDonald
and
Mabel
Wanyandie.
David
MacPhee’s
arguments
(and
our
more
serious
conversations)
have
been
especially
helpful.
Hilda
Hallock’s
fearless
and
compassionate
discussions
of
the
unspeakable,
and
Carol
Wanyandie’s
insights,
advice
and
translation
as
community
coordinator
were
essential.
Over
the
last
six
years,
too
many
people
to
name
have
graciously
invited
Val
Napoleon
and
myself
into
their
communities
to
share
this
method.
Your
active
engagement,
insights,
questions
and
advice
have
improved
and
developed
my
own
thinking.
Kelly
Connor
and
Bonnie
Leonard
from
the
Shuswap
National
Tribal
Council
took
this
method
further
than
anyone
else,
including
myself.
I
have
learned
a
lot
from
you
and
your
work
has
informed
my
own.
I
am
sure
I
will
miss
some
names,
but
am
deeply
appreciative
of
the
many
conversations
about
this
work
with
a
welcoming
community
of
experienced
scholars
and
contemporary
academic
colleagues,
including
Elizabeth
Adjin-‐Tettey,
Jessica
Asch,
Hannah
Askew,
Cathy
Bell,
Andree
Boisselle,
Lindsay
Borrows,
Gillian
Calder,
Estella
Charleson,
Gerry
Ferguson,
Lori
Groft,
Al
Hanna,
Maegan
Hough,
Rebecca
Johnson,
Shalene
Jobin,
Johnny
Mack,
Renee
McBeth,
Aaron
Mills,
Astrid
Perez-‐Pinan,
Pierrot
Ross-‐Tremblay,
Judith
Sayers,
Kerry
Sloan,
Emily
Snyder,
Kris
Statnyk,
Jim
Tully
and
Jeremy
Webber.
I
have
had
the
benefit
of
open–minded
and
illuminating
discussions
with
colleagues
in
the
legal
profession
about
this
work,
including
Associate
Chief
Justice
John
Rooke,
who
has
been
very
supportive,
Judge
John
Higgerty,
Judge
Donald
Norheim,
Jim
Kindrake,
Amy
Martin-‐LeBlanc,
Ron
Stevenson,
and
many
other
colleagues
from
the
Department
of
Justice,
Canada.
Last
but
not
least,
I
want
to
thank
my
family
–
my
remarkable
children,
Davita
and
Asher,
my
partner,
Ken,
my
mom,
Joan,
and
my
sister,
Jess,
for
all
of
your
incredible
support,
insights
(and
patience)
through
this
long
journey.
Thank
you
to
my
brother
Eli,
for
your
insightful
feedback,
and
my
brother
Amos,
who
convinced
me
to
start
law
school
in
the
first
place,
and
never
doubted
me,
even
when
I
doubted
myself.
And
thank
you
to
my
very
special
little
niece,
Gemma,
for
giving
me
the
opportunity
to
live
this,
for
reminding
me
that
love
is
the
answer,
and
love
is
an
action.
I
would
do
it
all
over
again
in
an
instant.
You
are
a
bright
light
who
infuses
our
lives
with
joy
and
hope.
vii
Table
of
Contents
Chapter
1:
Introduction
–Law,
Suffering
and
Reconciliation……………………………1
Chapter
2:
Ay-si-mam-iko-siya:
Methods
for
Accessing,
Understanding
and
Applying
Indigenous
Laws………………………………………………………………………………12
1. Introduction:
The
First
Stream
2. Approaches
to
Engaging
with
Indigenous
Legal
Traditions:
Resources,
Challenges
and
Analytical
Frameworks
a. Identification
of
Legal
Resources
b. More
Challenges
for
Increased
Practical
Engagement
with
Indigenous
Legal
Traditions
c. Indigenous
Scholars’
Analytical
Frameworks
for
Accessing,
Analyzing
and
Applying
Indigenous
Laws
3. Next
Steps
for
Legal
Scholars
a. Learning
from
and
Building
on
the
Frameworks
b. A
Case
Study:
Applying
Legal
Analysis
and
Synthesis
to
a
‘Deep
Slice’
of
Cree
Law
for
the
Wetiko
(Windigo)
Legal
Principles
Project
c. The
Project:
Wetiko
(Windigo)
Legal
Principles
d. Legal
Resources:
Sifting
through
the
Stereotypes
e. Method:
Applying
Legal
Analysis
and
Synthesis
to
Learn
about
the
Wetiko
Legal
Category
f. Research
Results
g. How
This
Method
Addresses
Challenges
4. Conclusion:
Another
Stream
Chapter
3:
Applying
the
Method
–
The
Accessing
Justice
and
Reconciliation
Project
and
the
Cree
Legal
Synthesis………………………………………………………………72
1. Introduction
2. The
AJR
Project
3. The
Cree
Legal
Summary
a. Legal
Processes:
Characteristics
of
legitimate
decision-‐making/problem-‐
solving
processes
b. Legal
Responses
and
Resolutions:
What
principles
govern
appropriate
responses
to
legal/
human
issues?
c. Legal
Obligations:
What
principles
govern
individual
and
collective
responsibilities?
What
are
the
“shoulds”?
d. Legal
Rights:
What
should
people
be
able
to
expect
from
others?
viii
e. General
Underlying
Principles:
What
underlying
or
recurrent
themes
emerge
in
the
stories
and
interviews
that
might
not
be
captured
above?
4. Conclusion
Chapter
4:
Wah-ko-to-win:
Laws
for
a
Society
of
Relationships…………………152
1. Introduction:
Rich
in
Relations
2. Bringing
out
the
Background
3. The
Concern:
Distortions
4. Wah-‐ko-‐to-‐win:
Relationships
as
Central
and
Foundational
a. Living
within
Larger
Relationships
b. Recognizing
the
Fact
of
Relationships
c. Relationships
as
Rationale
d. Relationships
as
Resources
5. Conclusion:
Wah-ko-to-win
Chapter
5:
Creating
a
Cree
Justice
Process
using
Cree
Legal
Principles…….…196
1. Introduction
2. A
Cree
Justice
Process
for
the
Aseniwuche
Winewak
–
History
and
Aspirations
of
the
Proposal
3. Methodology
for
Community
Feedback
4. A
Contemporary
Cree
Justice
Process
–
General
Feedback
a. Analysis
b. Discussion
5. Using
Cree
Legal
Principles
in
a
Cree
Justice
Process-‐
Specific
Feedback
a. Analysis
b. Discussion
6. Conclusion
ix
Chapter
6:
Navigating
Through
Narratives
of
Despair:
Making
Space
for
the
Cree
Reasonable
Person
in
the
Canadian
Justice
System……………………………262
1. Introduction
2. The
Reasonable
Cree
Person
3. A
Logical
Starting
Point
4. The
Cree
Legal
Tradition
as
a
Reasoning
Process
5. The
Cree
Reasonable
Person’s
Tools
for
Practical
Reason
a. Wah-‐ko-‐to-‐win
b. Good-‐Heartedness,
Kindness,
Generosity
and
Hospitality
c. Education,
Guidance
and
Support
d. Case
by
Case
Reasoning
through
Cree
Legal
Principles
6. Narratives
about
Violence
against
Indigenous
Women
and
Children
a. The
Media
Narrative
b. State
Law’s
Narratives
c. The
Trauma
Narrative
7. Spaces
for
Indigenous
Laws
in
the
Canadian
Justice
System
a. The
Supreme
Court’s
Gladue
Principles
and
Directives
b. Current
Access
to
Justice
and
Community
Justice
Initiatives
for
Aboriginal
People
c. Challenges
and
Critiques
of
Community
Justice
and
Healing
Programs
8. Safety
First?
9. The
Reasonable
Cree
Person’s
Place
in
the
Current
Justice
System
10. Restarting
the
Conversation:
Recovering
Indigenous
Legal
Traditions
11.
Conclusion
Bibliography…………………………………………………………………………………………………..333
Appendix
A:
AJR
Project
Community
Participant
Information
Package…………......350
Appendix
B:
AWN
Cree
Justice
Project
Participant
Information
Package…………...352
x
Description:Reclaiming the Language of Law: The Contemporary Articulation and . Indigenous Law Research Unit, University of Victoria Faculty of Law, the
