Art is an act of peacemaking. Art is alive. It is a dialogue. When art grips us in our heart, which can happen in a heartbeat, we are changed. Like art, Indigenous laws are alive. These living forces participate in our belonging, being and becoming.
Richard and I were paired to Testify. We did not know one another. We told each other stories from that innocent inner space of not knowing, until the unknown opens up.
All relationships are from stories. Stories are at the very crux of healing, and at the heart of every ceremony. We can’t change the past, but we can change the future by the stories we tell. Richard and I tell a story about Indigenous laws which are a gift of profound wisdom and great beauty. When we can hear these laws speak, when we listen, we participate in their ancient wisdom and sacred connection, they help us to be human in a spiritual and wise way and teach us how to be better guests here on Mother Earth. We share stories with you about survival, about how Indigenous laws have survived colonization, about how we survive as Peoples, in our journeys in this territory of laws and identity denied, living in that sacred space of renewal and reawakening.
Justice is what love looks like in public
My story is a weave of Jewish ancestry and the land question; that profound life changing question that found me.
Born in 1947, I was the first post–holocaust generation. The accident/miracle of my birth prepared me for what was in store. As a young girl I was drawn to Holocaust stories like a moth to light. How was it possible that six million Jewish people and other victims including Poles, Romas, Soviet prisoners of war, gays and lesbians, Catholic priests and Christian pastors, Jehovah witnesses, handicapped and mentally challenged people, gypsies, courageous resistors – how could these people be murdered, in such an orderly way, apparently done under cover of law.
I grew up in a household, in a community, with a powerful, sacred law which came complete with ancient traditions, language and culture. Jewish law is matrilineal. Being Jewish is in my DNA. I seem to know at a cellular level the resonance of ancient prayers, and the familiarity of Jewish humor and sacred wisdom, told through stories and lived through traditions. I was taught ethics through daily life in my family, about how we regard each other and act towards one another. But Jewish law was not the same as “Canada’s law”. We needed to hide this law. I knew without being told that it was not safe to tell a stranger that I was Jewish. I should say I’m Canadian. I never heard my parents tell anyone we were Jewish. My parents named my sisters, brother and I, Mary Louise, Susan Barbara, Anne Margaret, Thomas Michael; names hiding our Jewish identity.
I went to law school. I wanted to reveal, to stand up, to speak up, to protect and to correct. I wanted to know justice. I was a legal thinker with a finely tuned mistrust of the law. I knew that laws are not neutral. I was open to see disguised racism and prejudice in the law or its application. I was open to see how well-meaning people and governments could be guilty not because they violated laws, but for following law that should never have been made in the first place. And I knew to look for ancient laws and ways of knowing which are hidden for protection.
I found myself on a road with Indigenous people who included me in their journey. I was hired by UBCIC in 1977 as a young lawyer, and work for this great organization and other Indigenous Nations ever since. They were also seeking justice. They wanted an answer to the land question. One way that the land question sounds, or perhaps the voice of the land question at its deepest is: How did Canada’s laws come to cover Indigenous territories when our own laws already lived there? I wanted to find out what the Crown governments had to say about their authority to de-world Indigenous People this way. What was that law?
Over time I started to see the contours of Indigenous laws and legal orders I had no idea how they existed. We expect a parallel universe between legal orders. I didn’t recognize Indigenous laws and legal orders initially, because they were so unlike western legal traditions. Indigenous legal orders emerge from worldviews that deny the dominion of humans over the earth and of one human over another. These legal orders include the Creator, supernatural beings, helpers and healers and a culture transmitting orally across generations embodying principles to live by giving rise to rights and responsibilities.
Even though they are not always called laws, what I witnessed is certainly law. Law is rule-directed behavior towards others, involving legal norms; an expression of values and principles that hold permanence and universality, capable of being applied to new circumstances which arise. These benchmarks are present in Indigenous laws and legal orders, but I am searching for understanding – I am not sure exactly how to describe these ancient laws. And yet, I feel something familiar- something resonates in me with what I see. And so I return to what I know and what I am learning about Jewish law for grounding.
In both Indigenous and Jewish law, Creation is not finished. It is ongoing. Everything that is, and is to be, is unfolding and manifesting in our bodies and our lives lived moment by moment. Each of us is the energetic channel for the future to emerge. All life originates out of the big bang or before. Coursing through the generations and centuries are ancient genetic commands, originating with the big bang, woven into the spiritual DNA of reality which is language, and archived as unwritten laws of human conduct , transmitted orally as stories. Indigenous stories containing laws take us back to a remembering all the way back to origins, to when the gods first shaped humans out of clay, back to when animals speak with people, to when the sky and water were without form and all was shaped by such words as “let there be light.” On Rosh Hashanah, the Jewish New year, we celebrate the birth of the universe.
“When it rose in the Mind of the Infinite to create, the Infinite manifested as Endless Light and encompassed All. In the time between time, before there was time, in a moment between moments before there was a moment, Infinite Being constricted Its own Essence to allow for the emergence of space. Then, within that clearing, void of Itself, Infinite Being manifested a single ray of Its Endless Light, Its Infinite Presence. And from this single ray, the universe came into being.” –S16th C Rabbi Chayyim Vital in Etz Ha’Chayyim, Ch. 1
This is continuity in the way that Indigenous laws are passed across the generations; they live in the cultural DNA. They live in stories, in practices, they are alive. Indigenous law is not about ideas, but about practice awareness and participation. The laws are entwined in harvesting and stewardship practices and the way individuals and Peoples relate to one another. Human activity is embedded in a larger world, and draws analogies from the natural world to regulate behavior. The earth, animals, plants, birds, stones, insects; the natural works is a source to understanding how we should act in the human realm and a source of knowledge. So too with Jewish teachings .
“ … the Creator left us enough information in the earth about how to live in balance. If we did not have Torah, (written law) we could have learned everything that we needed to know from the animals.” –Babylonian Talmud, Eruvin 100b
“Since you are comprised of all of Creation, the animals in your environment mirror important qualities back to you. They are part of what can keep you in balance or throw you out of whack. Live in balance with the creatures of our planet and they in turn will become good medicine for you.” –Midrash Tama D’bei Eliyahu Rabbah, Ch. 1
“The earth is a living organism. She has feelings, and she reacts. She accepts us or rejects us, depending upon how we conduct ourselves upon her. Even the medicines that some from the earth are capable of healing only when the earth is at peace, not when there is conflict upon her.” —18th C, Rabbi Nachmon of Breslav, in Likuttei Ha’ MaHaRaN, No. 277.
But what is different, what makes me regard myself as worthy but uniquely unqualified for the task of describing Indigenous laws in depth, is the simple fact that an important source of Indigenous law and legal traditions is the land. I grew up not connected to place. I felt that I never belonged to the land. Like my grandparents before me, for centuries, we live in the diaspora. This is an expression of a culture without land, living in the territory of others and at their sufferance. My grandparents could not own land in Europe because they were Jewish. They immigrated to Canada. My grandmother would say that they endured hardships as Jews, so their grandchildren can live better lives as Jews.
Even with religious freedom here on the ancestral territories of Indigenous Peoples, living in Canada, Jewish culture and traditions are not land focused as are indigenous legal orders. When God gave Moses the ten commandments, complete with language written in stone tablets, we have been taught to focus on the words brought down from Mt Sinai, not the place. The actual mountain was unimportant; stories about the mountain have not passed down. Why would we ignore such an important part of the Mt. Sinai experience? Jewish traditions focus on the Word. In the beginning there was the Word. Not so for Indigenous cultures. If Moses came from an Indigenous culture, we would know about that mountain. There would be crests, songs, sacred dancers and dances, place names marking the place where Creator, land, spirit and laws came together. The mountain would be as alive as the laws.
Except for Indigenous peoples, we are all new to this land. For settler populations, a separation from land took place in Europe where the cultures took a different tact – into the mind, into the ego, into the written word, into science, into cities, into factories, into money. There was separation from land in the immigrant in a story, of conquering nature in a hostile frontier. Something broke deep in the spiritual core; a spiritual fragmentation which has accompanied our ecological destruction.
Delgamuukw was a leading case testing (and affirming) the existence of Aboriginal Title, including Indigenous laws. In the Opening Statement on behalf of the Hereditary Chiefs, Chiefs Gisday Wa and Delgamuukw put it this way:
“For us, the ownership of territory is a marriage of the Chief and the land. Each Chief has an ancestor who encountered and acknowledged the life of the land. From such encounters came power. The land, the plants, the animals and the people all have spirit that will/must be shown respect. This is the basis of our law.
The Chief is responsible for ensuring that all the people in his House respect the spirit of the land and all living things. … My power is carried in my House histories, songs, dances and crests. It is recreated at the Feast when the histories are told, the songs and dances performed and the crests displayed. With the wealth that comes from the respectful use of the territory, the House feeds the name of the Chief in the feast hall. In this way the Chief, the territory, and the Feast become one. … By following the law, the power flows from the land to the people through the Chief, by using the wealth of its territory.”
The land is the culture. The Chiefs on behalf of the Houses use the land for strengthening their relationships with their House, their Clan, their father’s clan, their Nation. The histories, songs, crests, even food gathered from the land, are organized in very specific ways. Totem poles feature crests which record histories rooted in the earth to encode the laws. These crests and poles are authority for the House’s present and future actions.
Indigenous laws contain layers of cultural knowledge which in part comes from and is shaped by observations, deliberations and knowledge of the natural world, and its cycles. I recall the testimony of a Wet’suwet’in elder and medicine healer, during the Delgamuukw trial, whose evidence was about plant medicines. Under cross–examination, Crown lawyers challenged her about how she could be so certain which plants carried particular medicines. She responded with a story about bowel movements. One spring several women hid outside a bear den, waiting to see what the bear did after a long winter’s hibernation. One day the bear awakened and these ladies followed the bear. The bear ate this particular plant and then defecated. The plant is used today to help people whose bowels are not moving. No further questions.
Among the many witnesses whose testimony I have led in court who are the people who harvest from the land and waters, their evidence stands untouched by cross-examination. They know the land like the back of their hands. These are the only people who speak the language of this land. Indigenous laws occupy the land with love . I have spent my life, working in the company of people who love their territories, who lovingly named each bay and inlet, mountain and meadow. Listen to how Chief Wayne Morris described Saanich law in his testimony in a leading case involving pre-Confederation Treaties on Vancouver Island :
“[A practice that] is looked at as real sacred, and if we chop a cedar tree down or cut a cedar tree down, we thank them for the use of the tree itself, and thank them for that use and then for what they’re going to do for us. The deer or the elk, or whatever we’re hunting for, we than[k] the Creator for the meat … it’s going to be a medicine for our people, our families, our ancestors gone before us. …
Our way of life, discipline, respect, all of that that … came from … the teachings that my parents and my grandparents, what they gave to me. What they gave to me was something that I look at as an unwritten treasure because none of our teachings are written, they’re all – they’re all from the heart.” —R. v. Morris,  2 SCR 915
Indigenous legal traditions connect to the essential aliveness that course through the universe, uniting us with that creative power that lives on earth, inside earth, in the fish, the animals, birds and insects, the stones, the trees, in each of us. In this social arena, ethics are guided by fundamental principles to be deeply respectful of the recognition that the other is important and has value; that everyone has a value and something to give to society, that the different gives something to the whole, that the smallest ant can be our teacher. We are reminded to the way we can live in balance with each other and all living things. Humility is key. Every living thing has as much right to live on earth as humans.
Like all societies, Indigenous Peoples possess laws for dealing with disputes and disorder. Indigenous law can be harsh and should not be romanticized. I led testimony from Indigenous witnesses, from different Nations, about in the enforcement for violations of laws against trespass, or rape where the penalty was death. Where laws flow from the relationship to the earth, sometimes a crime offends nature, so that the earth cries out, there is a violation of natural harmony which only retribution can restore.
For the most part, dispute resolution, even deep conflict, is resolved through connecting. Feasts, potlatches, conferences and other community institutions allow people to gather to channel these disputes into more productive and harmonious relations. Law-keepers counsel with Indigenous citizens by drawing from stories, songs, dances, to witness how to live well in the world. Elders apply principles to guide their followers in a manner that accords with their understanding of tradition. These laws get into the mud and the mess and beautiful things can come. Joy Harjo writes “Heart breaks – love surges in – this is a law of conflict resolution.” I have witnessed a consensus emerging in a room of debate and disagreement when the energy became light, mixed a buzz of humor. Indigenous legal orders grasp the connection between pleasure and justice: When something feels deeply right, this feels pleasurable.
Stories and ceremonies form a large part of the teachings. I have been chosen to be a witness at ceremonies. Ceremony is part of Indigenous legal orders. Witnessing is part of Indigenous legal orders. Witnessing is part of a familiar legal order. For a document to be valid, it needs to be witnessed. I have witnessed many ceremonies and have been paid with money and gifts, and have accepted payment. Money passes and a trust is created. I have been taught in many different ways that my role of witness was the responsibility to tell others what happened that day. Orally. No cameras, no notes, no tape recorders. Developing mindfulness. Being physically present, watching, listening, remembering, and then telling others. Remembering is part of healing and restoration; the mending of a broken connection between us and the new. Ceremony is a place grown intense and holy. It is a place of immense community. We remember that all things are connected.
The Hebrew word for giving is Tzedaka is translated as charity, but it really means justice. Justice is based on charity but not in the sense that one has and another has not, and through generosity there is Tzedaka. The masters mean that your money is not owned by you at all. A portion is owned by the poor in the community. The only right you have is to determine which poor person you will give it to. The common lesson is that we are not separate from everyone else. We do not own our money because non-separateness is the essential truth of reality.
All my relations, I have heard these words spoken countless times; closing meetings, closing speeches, closing prayers. Those words create a relationship with other people, with animals with the land. To have health it is necessary to keep all these relations in mind. We are all connected and interconnected.
Genetikos and the Paradox Which Stands Guard
Jewish people survived, as distinct Peoples, living centuries without land, because we kept alive our laws, prayers and traditions, allowing the law to speak to us, and through us, to guide our lives day-to-day. For Indigenous land based cultures the same is true but both the law and the land is alive and carried through this way. I venture to say that these great living and powerful forces of laws and land speak through our DNA. Survival depends on this.
Francis Crick, co-discoverer of the double helix structure of DNA, presented the astonishing hypothesis that “you, your joys and your sorrows, your memories and your ambitions, your sense of personal identity and free will, are in fact no more than the behavior of a vast assembly of nerve cells and their associated molecules.”
But other forces are also are play through our DNA. There are now over 400 papers published on the transmission of Holocaust trauma. It is scientifically confirmed that trauma transforms the DNA, and is passed down the generationally, altering behavior and immunity. Our biology becomes our biography. The holocaust is alive in me. Colonization is alive in Richard. We carry sorrows that are passed to us from early generations, those to handle besides our own and cruelties lodged where we cannot forget.
Richard and I ask questions: Can we also pass healing through our DNA? Can the powerful healing of ceremony change our DNA? Can we align with the wisdom contained in Indigenous laws, providing a kind of inner map, a geography of the human spirit, bringing together the fragments of our lives by taking up a new way?
One part of this answer depends on science, which I leave to the scientists, but another part of this mystery I know something about.
There is a cultural body of fear and grief in this country, which is inter-generational and is embedded in culture and law. It lives as ideas transmuted through our legal and political institutions, and I venture to say, it lives in and through our cultural DNA. This body is the imposing force which covers the land, suffocating Indigenous laws, and it creates trauma and suffering for both the colonizer and colonized. It thrives on the illusion of separation . It traces its origins to this Country’s fearful foundations and ideas which are at the core of the cultural genocide which occurred. We will pass these ideas and their consequences to the next generation unless we bring them to the light of day, and choose to act from a different narrative.
I know personally, and can describe this force that defiled the rule of law, that smothered Indigenous laws and silenced them. The rule of law was not upheld when it came to Crown dealings with Indigenous Peoples because of greed, ignorance and prejudice. I had the privilege to litigate the land question which is a quest to make space for the reassertion of Indigenous laws in a landscape where these laws were deliberately erased. The Crown’s defense was extinguishment. Extinguishment is a rash assertion of Crown sovereignty.
Canada’s founding myths were riddled with racism. Real time, they say, began when the settlers rescued the land from disorder and brought civilization to the savages. The theft equation turned around. Instead of the appearance of the newcomers benefiting from the lands and resources they had wrestled from Indigenous peoples, the idea was presented as a presumed exchange of benefits. The land and resources were not seen as territories which were governed and managed, but as “raw materials”, outside any legal structure in a wilderness of inexhaustible natural resources without ecological limits.
The Crown’s weapon was Crown law which carried these ideas through legislation, assimilation policies and practices, government negotiation mandates, and Crown litigation positions. Crown laws protecting Indigenous laws were ignored. As far back as the Royal Proclamation of 1763 the Crown was required to respect the original occupants of North America, their laws, legal orders, and occupation of their territories as legal rights, with the incremental perfection of Crown sovereignty through treaty. But that didn’t happen in BC. The Crown derived its authority from force. Crown law prohibited the potlatch, sun dance and Indigenous legal orders. Canadian law silenced both Indigenous law and the voice of legal challenge, all during a period when Indigenous peoples had no right to vote
The Truth and Reconciliation Report (TRC) states this simply enough: “The Canadian Government pursued this policy of cultural genocide because it wished to divest itself of its legal and financial obligations to Aboriginal People and gain control over their land and resources”.
The first Lieutenant Governor Joseph Truth wrote to the Colonial office saying that Oregon had passed a law providing that it was not illegal to shoot an Indian on sight. He requested colonial approval for the same powers in British Columbia.
These myths translated into legal doctrines; the doctrine of discovery and terra nullius. The doctrine of terra nullius is premised on the false inferiority of Indigenous Peoples being without real laws. The doctrine of discovery is premised on the false superiority of Crown governments and dominance of Crown laws.
These legal doctrines were supported by racial stereotypes of Indigenous Peoples. I am sensitive to stereotyping. The holocaust did not begin in the gas chambers. It began with radical stereotyping. Evil minds portrayed Jews as unworthy, and less than fully human, making way for the radical evil which occurred. For Indigenous Peoples, the stereotype was of an Indian race without laws; a race of people on the low rung of a fictitious ladder of social Darwinism’s ascension to civilization.
I go into some detail to reveal the stereotypes which silenced Indigenous laws because these ideas are systemic. They have found their way into thoughts we unconsciously hold and replicate in our collective unconscious. Each of these fearful manifestations must be brought into the light to be eradicated.
Crown lawyers argued extinguishment in all of their declining alternatives: The settled colony theory , the theory of Crown supremacy , extinguishment by litigation . The projected message, which strikes at the heart of Indigenous Peoples is that you have no laws. You need to be changed. You are not good enough as you are.
The startling reality is that, after over 40 years of litigation, the Crown failed to come up with one legal defense for the decades of denial, dispossession and misery. The imposing force was illegal. Crown extinguishment arguments were rejected by the Supreme Court of Canada (SCC.)
Turning and returning, the SCC went back to the law governing Canada’s beginnings and recognized Indigenous laws and legal orders as the golden thread of the common law. The Court held that Indigenous laws are inherent collective rights which pre-existed and survived the assertion of Crown sovereignty. These laws and legal orders have never having been extinguished and find expression today in the constitution. The oldest roots of the living tree of Confederation survived colonization.
What we have learned from Indigenous people who spoke to the highest Court, and what has emerged from the SCC, is that there is room for more than one. Our country is an amalgam of diversity. This is our strength; unity in diversity. We are a multi-juridical order, different cultural narratives, world views, titles and jurisdictions co-existing and operating on the same landscape. This is not one order creating space for another; nor is it one order adopting elements of another; but rather the recognition of plurality of orders and the need to create mechanisms for the healthy, harmonious interaction between them.
Indigenous laws must speak when decisions are made about the land. They speak so Indigenous peoples can achieve self-determination, which is a fundamental human right guaranteed by the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) which Canada has endorsed. Section 35 cannot revitalize Indigenous laws until self- determination informs the approach.
The constitutional imperative is reconciliation. But what does reconciliation mean for Indigenous laws and legal orders?
Hannah Arendt, a Jewish intellectual who witnessed the Eichmann trial, observed that justice can falter here, as in anywhere. But she asks: Can we have confidence that it ultimately will prevail? She asks this question in the context of observing collective rights and collective wrongs, where Jewish people were targeted because they were Jewish. The same can be said for Indigenous Peoples who were targeted because they were Indigenous. In both cases what happened to them was radical evil. They were targeted by ideas, transmitted politically, legally and culturally. For Jewish people we were unredeemable. Even children were taken by cattle car to slaughter. For Indigenous Peoples they were thought to be uncivilized, without laws. They were trucked to residential schools to take the Indian out of the child to make way for their assimilation. Hannah argues reconciliation cannot be found in a legal solution. A legal solution is appropriate when a person is tried in Court for breaking the law. But here, we are talking about governments making unjust laws, which should never have been made in the first place, let alone followed. She argues that reconciliation in this context, demands a political re-constitution; a public acknowledgment of the evil done, reparations and amends made, and a rejection of the world as it is, than a revolutionary break and a new beginning on different collective terms. This involves all of us who share this history, the land and the future. Reconciliation is coming to terms with a reality and affirming one’s belonging to this reality as one who acts in it.
This is the silence of terra nullius ; Canada’s suppression of Indigenous laws. The earth is a being that remembers and has dreams and nightmares too.
It is the Silence of generations muted by unjust laws: You can’t potlatch; you can’t hire a lawyer; you can’t fulfill your sacred obligation to take care of the land, the fish, the animals and birds as they speak their symptoms; you can‘t take care of each other, or of other Peoples you have obligations to.
It is the Silence of projected hate, internalized as self–hate. While we were not observant Jews, our family always observed Passover, the Jewish exodus from Egypt, from slavery to freedom. This is an ancient history, reenacted orally, annually, and like Indigenous orals histories, the essential elements of the story must be told in order correctly. But great latitude is given to each generation to render the story relevant in new ways. The word Egypt, which is the place of enslavement, kabbalistically is said to incarnate the throat and symbolizes all the words that remain stuck in our throats; the words we never speak, the stories we never live, unsung, unimagined.
It is the Silence of residential schools Indigenous languages beaten out of children, sexual violence which is not talked about, the muffled sobs of lonely kids in bed at night. On my 50th birthday, the late Vera Manual was writing a poem to give to me, when on her computer screen popped up words written by her father, the late Grand Chief George Manual. Vera gifted me what George said.
She said he must have wanted to speak. It was a poem he called Hunger:
“I couldn’t speak English, “he whispered.
I spoke Indian and I got whipped.
I got whipped a lot”.
Vera’s poem was entitled “Women Without a Tongue”. She wrote: “A woman without a tongue has no safe place in this world. Everyone expects her to be silent, obedient”. Residential school silence is multi-generational trauma.
Trauma has its own kind of silence. Bessel van der Kolk, a Dutch psychiatrist, has shown that during a trauma the speech center shuts down, as does the part of the brain responsible for experiencing the present moment. He describes the “speechless terror” of trauma as the experience of being at a “loss for words”, a common occurrence when brain pathways of remembering are hindered during periods of threat or danger. “When people relive their traumatic experience”, he says, “the frontal lobes become impaired and, as a result, they have trouble thinking and speaking. They are no longer capable of communicating to either themselves or to others precisely what is going on. Words, images and impulses that fragment following a traumatic event reemerge to form a secret language of our suffering we carry with us until we bring them into the light of awareness. Once something closes in our heart, it is difficult to receive love back.
Indigenous laws have suffered trauma. They were trampled by racism. Racism illustrates the constant denial of the simple truth of our essential connectedness. We subtract these people from our circle of compassion. We draw lines that perpetuate the illusion that we are separate from one another, and therefore “my” good can come at “your” expense. We create the “other”. This is a failure of love; I can hurt you if I feel you are not connected to me. Out of that de-sanctification come abuses of groupings of people, of women, substance abuse, gay and lesbian abuse, abuse of the land, colonization.
Each of us have a role to play in creating space to listen when Indigenous laws speak. They have so many different stories to tell. The laws talk about the continued need for those willing to grapple with the needed task of fighting for social justice in our time
Indigenous poet, Joy Harjo: “to speak, at whatever the cost, is to become empowered rather than victimized by destruction. In our tribal cultures the power of language to heal, to regenerate, and to create is understood.”
Eli Weisel, who was a boy when he survived Auschwitz, became a brilliant author and speaker for peace. On receiving the Nobel Peace Prize in Oslo, he said “never be silent when human beings endure suffering and humiliation. We must take sides. Neutrality helps the oppressor, never the victim.” When we hide through silence, from truth and prejudice, we lose our freedom.
As Indigenous laws speak, listen and pay attention.. Speaking, listening, hearing, learning, loving, changing and healing. These are the forces capable of making a revolutionary break. Listening is a prelude to love. Being heard is so close to being loved that for the average person they are almost indistinguishable . A relationship with Indigenous Peoples and with Indigenous laws is a choice; an accepting, a welcoming of the other, not out of obligation but with a heart of love and acceptance. Listening is learning. We learn from each other. When we do, walls begin to fall. We cross over to another’s point of view. We can grieve together.
This is at the core of the recommendations made by the Truth and Reconciliation Commission (“TRC”) which addressed this question: How do we heal a national wound that caused such a spiritual rupture? The recommendations are a step in this political re-constitution where we laid our sorrows and burdens next to each other. Each person, each sector of society was assigned things we can do to remediate the cascade of misery and trauma resulting from an illegal colonial history. We can reconcile with ourselves, our common history and future and the land.
Indigenous laws teach us about this alchemy – the worst that happens can become our strength. I was at a meeting where April Churchill, a Haida matriarch and weaver, opened with a prayer. It went something like this: “Thank you for making hardship our strength.” In her wisdom, the worst thing that happened can open our hearts. Pure devastation can be the most awesome of teachers. Indigenous law is there to help move forward. Haida law taught April to sweep away the tears, and how to transmute the terror and grief and sorrow and mistakes from the past into medicine .
Different cultures have relatively different capacities to contain the paradox of remaining whole and yet to be contained by something that is different. Indigenous legal traditions embrace this. Indigenous languages have many words which translate the idea of “all is one”, “of one mind”, “we are all related”.
Indigenous legal orders can help us move forward. Indigenous Peoples are the masters and mistresses of ceremony. In ceremony spirit is engaged in a highly personal way. Humans who easily can grow apart are returned to the great store of life all around us. Ceremony takes us towards the place of balance and to our place in the community of all things. But it is not a finishing thing. The real ceremony begins when we take up new ways.
In Kabbalah the primary image of creation is God force emanating light into vessels. For whatever reason these vessels are structurally flawed. Structurally is not a physical term but refers to the diagram of the spirit on which the vessels are patterned. The flawed vessels are unable to hold the light streaming into them from the divine emanation. They shatter. Shards of vessels fall and disperse throughout reality. Many of the shards retain sparks of light. The purpose of existence is to gather the sparks of light called Nitzotzot, and reintegrate them with their divine source. What is essential is the centrality of failure. God tries to create the world. It doesn’t work because the vessels shatter. Our whole lives are spent trying to return to the original pristine state before the vessels shattered, the only difference being that this time when we return, we are humbler, wiser and able to transcend even the initial perfection with which we begin.
There will be those people who don’t want to engage. The say or think …“if I connect to this new story, I am faced with guilt. I don’t feel guilty. I don’t want this responsibility. The price of honesty will cost me something I don’t want to pay. I don’t want the governments to use my taxpayers money this way. Their good fortune has been based on unbelievable crimes, but they don’t want to give up what they gained.
To these people I say, why would you deny yourself the pleasure of such wonderful company? I would tell them that the colonial paradigm has already shifted. It was shifted by the Courts, by the UNDRIP, by the TRC and by all of us who feel the power of change flowing through and welcome it. We stand in the middle of a transition where we cannot remain standing. Something new has entered our hearts as a Country. It is in our blood. We could easily be made to believe that nothing has happened, and yet we have changed, as a house changes when a guest has entered.
In truth, we are part of the living world and cannot walk away. We have treated the earth as if keeping our species alive is a guarantee. But the earth speaks its symptoms to us. Nature has many mysteries, some of them severe. We must now learn to co-operate, and with a different collective mindset about Mother Earth, on a planetary scale, or we will destroy our life support system and humans will become extinct.
Indigenous laws are now speaking. They are reoccupying the landscape. They speak in lessons of love. Love is intimacy and pleasure between source and self, in giving and receiving; about being with others in a purity of relationship which is not about power, but about connection. Love is the only emotion that makes us as irrational as we have to be to do what is necessary to sustain human life on Mother Earth.
The Cedar Tree
This metaphor of cedar tree is the perfect way to end. The air we breathe out, the tree breathes in. The air the tree breathes in, we breathe out. We remember that we are part of the land and that there is a life force that unites us.
The tree is a metaphor in the law. Indigenous laws and legal orders are part of the constitution which is to be interpreted like a living tree capable of growth to meet new circumstances.
The metaphor of the tree honors Indigenous laws’ jurisdictional continuity. These ancient laws are the oldest roots of the living tree of Confederation and a source of inspiration and knowledge for the future.
The Jewish tree of life is a diagram representation of the process by which the Universe came into being. It is a tree of revelation. God is revealed and all of its paths are to peace.
The tree is a metaphor for our genetics. It has roots deep in the soil of the past.
The Haida have a teaching “The world is as sharp as the edge of a knife.” As a species, we can fall off the edge of the world if we don’t walk in balance. The law is about balance.
The tree is an expression of balance honored in Indigenous legal traditions. The tree holds in balance, two essential forces of the universe, masculine and feminine, whose integration is the source of all harmony.
The rings of the tree are circles, supple, intimate, egalitarian. It surrounds and envelopes, moves round and round, always comes home again. No one is ahead of anyone else. Everyone can see one another. Everyone is face to face. There is intimacy in the circle. The oldest form of governance is the circle.
In a tree there is a blending. Neither the circle nor the line disappears. Each is absorbed in the merging with the other, while neither losing its own integrity.
Balance is sharing authorities and benefits, co-existing titles, co-existing laws and legal orders. Different sources, neither absolute, not competing but completing each other. This is the dance. Neither is complete without the other.
And so we begin again. The tree rings in a new way, spiralling away from Crown laws’ colonial dominance, away from disparate fragmentation; spiraling in tune with Mother Earth where there is a place for every species, every race, every tree, every plant; spiraling with the completeness of life that must be respected; spiralling with the circle’s healing power; spiraling in unity; turning and returning to our roots; celebrating Indigenous laws and welcoming their gifts. //