Abstract
In this paper, I explore several issues emerging in the discourse about the recording of indigenous law by drawing on several examples of my research and work with indigenous law in Canada. This is an important inquiry because there are limiting and disturbing fundamentalist premises underlying the debate regarding the recording of indigenous law. To take up these issues, I analyse and articulate the law and legal processes from two indigenous oral histories. The question under consideration is whether by this recording and analysis, I have somehow damaged Gitxsan law. In other words, did I break it?
Highlights
To take up the issues concerning the recording of indigenous law, I begin with two Gitxsan2 oral histories which I analyse to identify, articulate and restate the law and legal processes they contain
The work with indigenous law must begin in the experience of indigenous reality – where people are at today as opposed to some idealised version of the past
This means that engagement with Indigenous law must move to thoughtful rebuilding, and this generates two questions: (1) What are the terms for this thoughtful rebuilding process with communities? and (2) What are the intellectual processes in each Indigenous society that historically enabled people to deal with and account for change?
Summary
Possible responses depend on which indigenous society is being considered when posing the question and at what point in history It depends on who is asking the question and what legal lens enables the asker to see or not see (eg, civil or common law, Cree law or Gitxsan law, etc). The aim is to explore some of the messy issues concerning the recording of indigenous law by drawing on examples of my research and work with indigenous law in Canada for the past several decades. To take up the issues concerning the recording of indigenous law, I begin with two Gitxsan oral histories which I analyse to identify, articulate and restate the law and legal processes they contain.. For a comprehensive discussion of the indigenous legal methodology employed here, see the trilogy: Napoleon and Friedland 2016 McGill LJ 725; Friedland and Napoleon 2015 Lak ehead LJ 33; and Napoleon and Friedland "From Roots to Renaissance"
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