Critical indigenous legal theory

Title: Critical indigenous legal theory
Authors: Lindberg, Tracey
Date: 2007
Abstract: Beginning with the understanding that knowledge is empowering (rather than power), the initial chapter begins by grounding the paper in Indigenous methodology and understandings in Neheyiwak (Cree) philosophies, principles and law (Neheyiwak law as home). Researching and detailing the understandings related to Indigenous legal traditions as home allows for the development and discussion of Indigenous law as normative. The first section of the paper constructs a lexicon for the regular fantastic of Indigenous law. Putting Indigenous laws at the forefront of the work allowed for the discussion of our laws with Canadian laws as comparative law and conflict law, a meaningful re-establishment of the boundaries of our legal imaginations. Looking for home in Indigenous terms and in accordance with Indigenous/ Neheyiwak laws led directly to a discussion (and the second chapter of this work) of home, land and territories in the context of Indigenous authorities and obligations related to the same. Researching and discussing Indigenous conceptualizations of "something more than Sovereignty" allowed a discussion of Indigenous understandings, laws and principles related to our relationship with our lands. This enabled a discussion of international and Canadian conceptualizations of sovereignty and land holdings; the juxtaposition of Indigenous understandings of our relationship with our land contrasting with non-Indigenous notions of the crystallization of sovereignty. Examining non-Indigenous cases where Indigenous understandings of our holdings and experiences leaked through the double filter of foreign laws and foreign jurisdictional review allowed for a discussion of the construction of land as home, home as land, and land as land claim in a non-Indigenous paradigm. Grounding notions of "something more than sovereignty" in home allowed for conceptualization and ideological establishment of an Indigenous constructed paradigm of Indigenous laws related to our homelands. The next chapter involves the search for Indigenous citizenship in an Indigenous legal context. Outlining the Indigenous/Neheyiwak laws related to relationships, family, and citizenship enables a thorough discussion of the placement of identificational home for Indigenous women. Then, examining Canadian law and its impact on our ability to honour our laws related to women, womanhood, and citizenship leads the paper to a discussion of the Canadian legal/legalized deconstruction and devaluation of Indigenous womanhood as a causal factor in the actual erasure (effect) of Indigenous women through Canadian Indian membership determination and physical devaluation/violence. The work examines the link between legal and actual erasure of Indigenous women. Addressing Indigenous/Neheyiwak laws related to inclusion and obligation allows for discussion and analysis of the responsibility of lawmakers for the laws they make when they have an overwhelmingly negative impact on racialized and gendered populations. The next chapter deals with modern day Canadian legal constructions of Indigeneity and the historical constructions of images of the same perpetuated through colonizer laws. In assessing section 718.2 of the Criminal Code and the proposed suite of legislation Canada drafted to address "Indian accountability", the paper draws upon a critical Indigenous legal analysis of the historical Canadian legal construction of Indigenous illegality in criminal law and as related to our economies. In order to address the nonsensical notions of constructions of race through Canadian law, the research and analysis address the construction of an historic and legal path which led to settler identities and legal existences. Finally, the paper examines how to address the critical analysis and the critical tools required to assess Canadian legal understandings from an Indigenous/Neheyiwak place. Constructing/re-constructing an Indigenous legal home as a place from where we can view and assess Canadian law, the paper examines how to address home when definitions and constructions of home run contrary to Canadian law. Looking for reconciliation and rejecting legal translation (as the colonial legislative and legal history is too profoundly entrenched in Canadian law and legal history) as a tool, the paper discusses intellectual and legal emancipation and liberation from an Indigenous place. Promoting ways and means to learn how to learn Canadian law, the paper comes full circle and addresses Indigenous knowledge, legal systems and ways of knowing as the mainstay of Indigenous critical legal theory. Starting from home, being aware of and fluent in Indigenous philosophies, principles and laws is the most empowering place to be. (Abstract shortened by UMI.)
CollectionTh├Ęses, 1910 - 2010 // Theses, 1910 - 2010
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