Reclaiming the Language of Law: the Contemporary Articulation and Application of Cree Legal Principles in Canada

Reclaiming 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

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