████ ████
Professor ████
INDG 343
27 November 2021

Indigenous v. Aboriginal Law: Oppression v. the Oppressed

In Canada, there are two separate legal concepts and by extension systems that have a hand in legislation that involves Indigenous people: those two legal systems being Aboriginal law and Indigenous law. Despite apparent similarities in their names and in what they involve themselves in, one has been used as a colonial tool of cultural suppression and oppression while the other is a historically oppressed and appropriated expression of said culture. Treating Indigenous law as if it is simpler than it truly is, or lumping it in with the Aboriginal law that was created to exert control over Indigenous people, rather than being a system that is created and controlled by them, however, is a great aid to the colonial perspective: assuming a reductivist standpoint abets continued oppression that may be less severe but still impactful on the general perceptions both of those less involved with legal systems and those who are part of them. Indigenous law is not treated with the complexity it deserves and is instead appropriated and underrepresented, while Aboriginal law and its consequences continue to be overrepresented, affecting Indigenous people and their lawmaking negatively to this day.

Indigenous law is a complex and fluid legal system created and maintained by various Indigenous groups. While it bears similarities to Western law as a whole, many of these similarities can either be taken to be coincidental or the result of misappropriation thanks to the ongoing impact of colonization: it is not uncommon to see Native-born legal traditions adopted into the Western legal canon with little acknowledgment as to their genesis. The expression of Indigenous legal traditions, and by proxy Indigenous law, varies between different cultural groups (tribes), but at its core it is Indigenous-led justice that takes a much more dynamic, fluid approach to law than the static and rigid system of the West. For example, Indigenous philosophy is a "philosophy of constant motion" (Little Bear 79), and stresses the "value of wholeness or totality." (79). It looks to the value the group over the individual, for the good of all. Despite inter-community differences in approaching justice, Indigenous law is built upon stable principles like this that give it common ground between groups so as to facilitate justice and dealings inside and between tribes, especially historically-- for example, the use of treaties was an Indigenous legal tradition shared between many tribes. This is primarily because the creation of treaties was always a crucial part of peacemaking, and thus had to be universally understood; their knowledge was thusly shared with the European settlers and incorporated into Canadian legal policy. The legal traditions that the lawmaking of Indigenous peoples are based upon are diverse but comprehensible. ReconciliAction YEG summarizes the five sources of Indigenous law that John Borrows brings to the table in their blog post on the subject: those being sacred, natural, deliberate, positivistic, and customary law, all of which play their own unique and important roles in Native decision making. Indigenous law has throughout the years and at the very least been looked down upon as a more primitive way of approaching the law, primarily because of institutional racism and ingrained colonial opinions. For example, a connection with the land, as Indigenous spirituality and thus Indigenous law advocates, is seen as improper and uncivilized. Indigenous law wants restoration, a relationship with the earth, and the involvement of the community. Western law, meanwhile, is less concerned with the input of an individual's community as a whole and more so concerned with a disconnect from the land, in service of punishment and vindictiveness, with courtrooms and prisons essentially serving as both a physical and psychological barrier between the legal system and the rest of the world.

Aboriginal law, meanwhile, is an extension of this more rigid, detached Western law; Canadian law is derived not only from Indigenous law but from the legal systems of the French and English as well, and has historically been the source of many of the ills that Indigenous peoples in Canada have faced. Aboriginal law finds its genesis within the first treaties made between the settlers and the Indigenous populations living within Canada during colonial times; this treaty system was then absorbed into Canadian law and turned on its head, being flipped and used to oppress the very Native population who had shared it. Nowhere is this more clearly seen in the Indian Act, perhaps the most stark example of Aboriginal law and the consequences it has had and continues to have upon Indigenous peoples in Canada, in all aspects of their lives. The Indian Act, itself steeped in outdated terminology, has been used as a tool of control: and, historically, "Indian policy and legislation was devised largely without Indian consent or participation" (Leslie 23), because they were not so much groups of equals as they were uncivilized "savages" to be civilized, made like Europeans. To this day, the Indian Act still exists, though it has itself been rewritten and altered. While many of the systems Aboriginal law has historically used have been simplified and some of their harsher measures abolished or toned down, Aboriginal law still exists and is still often used as a tool to gatekeep Indigenous identities and culture in all aspects. It is supposed to be a method of communication, a relationship between Indigenous peoples and the Crown: in practice, however, it seems to do little good as it stands now. Indigenous land remains stolen, and at worst Indigenous land that has been "given back" is still largely subject to Canadian law and thus Canada still builds on and develops land that should not belong to them. Indigenous peoples still must have legal status as First Nations peoples in order to be considered "truly Indian"; and in the past, voting or (for a registered Indian woman) marrying a non-Indian man could result in the easy, fast loss of this status. The long-term violence that was inflicted by Aboriginal law upon Indigenous peoples has left trauma that persists today: Indigenous peoples are still forced to fight legal battles for their lands, inside and outside the courtroom; they face marginalization from others, and poverty from the system, and even abuse from traumatized families; and they are often still underrepresented in the legal system, despite what some may claim.

John Borrows' idea that "Canada has a strong tradition of tolerance and respect for difference" (167), while a nice concept, is often far from the case in practice and instead more of a stereotype than anything. Indigenous peoples still find themselves underrepresented in positions of power in the Canadian legal system, particularly Canadian juries; despite not being in represented in positions of power, however, they account for a quarter of those incarcerated. This is yet another manifestation of the systematic maltreatment of Indigenous peoples at the hand of the Canadian government and its reigning legal systems, and shows off even more of the difference between Aboriginal and Indigenous law. Aboriginal law, even if it affects individuals less harshly than it once did, has still led to this outcome: it has made Indigenous people into either criminals or victims, either causing harm or being caused harm as a result of institutional, systematic biases that have infiltrated every aspect of life thanks to the precedent put in place by legislation like the Indian Act (and its offspring, like the Sixties and Seventies Scoop) that essentially made it legal to abuse Indigenous peoples and their rights based on the assumption that they were a lesser breed of man meant to be subjugated and controlled. Aboriginal law is a relic of the past, while Indigenous law is very much not: Indigenous law is an expression of Indigenous culture, and must be allowed the same respect that any other form of law is given. Indigenous law needs to receive more representation in courts, and in legal systems at large even beyond the courtroom; more attention and thus care must be paid to revitalizing Indigenous legal traditions and giving them the respect that they have always deserved.

If we are to reach reconciliation, in any form, we must pay more care to the representation of Indigenous peoples, especially their methods of approaching the legal field. The legal systems that currently exist underrepresent Indigenous law and instead overrepresent the consequences of Aboriginal law; they do not do enough to mitigate the harm that has been caused by anti-Indigenous legislation and instead their lack of attention only serves to deepen the wound. Aboriginal law requires extensive rework and restructuring in order truly give Indigenous law and by extension Indigenous peoples the rights (and land) that they deserve.

Works Cited

Borrows, John. “Indigenous Legal Traditions in Canada.” Washington University Journal of Law & Policy, vol. 19, Jan. 2005, pp. 167–223.

Ewanation, Logan, et al. “The Issue of Indigenous Underrepresentation in Canadian Criminal Juries.” https://www.apadivisions.org, American Psychology-Law Society, June 2017, https://web.archive.org/web/20220630173514/https://www.apadivisions.org/division-41/publications/newsletters/news/2017/06/indigenous-underrepresntation.

Leslie, John F. “The Indian Act: A Historical Perspective.” University of Calgary D2L, https://doi.org/10.5250/amerindiquar.42.2.0162. Accessed 6 June 2023.

Little Bear, Leroy. “Jagged Worldviews Colliding.” University of Calgary D2L, https://doi.org/10.1155/2014/321604.

ReconciliAction YEG. “John Borrows & the Five Sources of Indigenous Law.” Blog, 9 Feb. 2019, https://ualbertalaw.typepad.com/faculty/2019/02/john-borrows-the-five-sources-of-indigenous-law.html.