Indigenous Legal Traditions and Indian Residential Schools: Law, Sovereignty and Reconciliation in Translation

Abstract

One of the foundations of the Truth and Reconciliation Commission (TRC) of Canada is the need to respect Aboriginal legal principles and practices. It is explicit in the mandate that Commissioners should recognize “the significance of Aboriginal oral and legal traditions in its processes.” It is implicit in the description of the TRC’s commitment to “establishing new relationships embedded in mutual recognition”, and in the goal of providing “culturally appropriate” spaces for Indian Residential School (IRS) survivor testimony, and is alluded to in the goal of “witnessing” truth and reconciliation events. Given that the historical policies of assimilation aimed at the destruction of Indigenous languages and culture were based on a brute lack of respect for Indigenous law and sovereignty, it is fitting to consider that state-sponsored reconciliation must include a genuine engagement with Indigenous legal traditions. This paper proposes to investigate some of the resources offered by the great variety of Indigenous traditions in Canada with a view to rethinking “reconciliation.” The goal of the exercise is not to find neat equivalents as translations – to take at face value, for instance, the Haudenosaunee Great Law of Peace as an exercise in political reconciliation in bringing warring communities into a peaceful federation – but to engage in a hermeneutic process that will reflect back on the English terms, attending to the ways in which culturally located words and practices are brought to the fore in the to-and-fro processes of translation, explanation, representation and interpretation that comparison entails. Thus recognising Canada’s multi-juridical legal culture in the context of the Truth and Reconciliation Commission involves not simply imagining the contribution of Indigenous law to processes already set and framed by a particular understanding of reconciliation, but requires having inter-cultural conversations from the ground up.