Abstract

Excerpted From: Naiomi Walqwan Metallic, Five Linguistic Methods for Revitalizing Indigenous Laws, 68 McGill Law Journal 47 (January 2023) (183 Footnotes) (Full Document)

This paper seeks to contribute to the groundbreaking work conducted over the past decade on the revitalization of Indigenous laws. Starting from the premise that Indigenous laws exist despite being impacted by colonialism and that Indigenous peoples were and are reasoning and reasonable, Indigenous law scholars have been writing about the various resources, methods, and frameworks to support Indigenous nations and communities in “drawing out their laws.” This includes describing ways to find law in Indigenous stories, ceremonies, songs, the knowledge and experience of elders, other community members, the land, and more. None of these methods are intended as stand-alone processes for Indigenous law revitalization; rather, they work best when used as mutually reinforcing processes--what Darcy Lindberg calls the “law as weaving approach.”

My experiences in learning the Mìgmaq language as a second language learner (still in progress), coming from a family deeply committed to language revitalization, and my experience teaching an Indigenous law methods course at my law school have caused me to reflect on the existing methods of using Indigenous languages to draw out and apply Indigenous law. This has led me to conclude that there is not one single linguistic method but at least five, as well as numerous resources to engage with such methods. I identify these as 1) the “Meta-principle” method; 2) the “Grammar as revealing worldview” method; 3) the “Word-part” method; 4) the “Word-clusters” method; and 5) the “Place names” method. This article explains each method and provides examples of how each can be used to inform Indigenous law revitalization. Many of my examples relate to the Mìgmaq language; however, most if not all of these methods could be employed using any other Indigenous language.

Those normally accustomed to finding law in statutes, regulations, or cases might ask, “How does one 'find’ or 'draw out’ laws from a source like language?” Of course, finding law in the context of decentralized societies with largely oral cultures will not look the same as finding law in a centralized society, where all law emanates from the sovereign or the state and its courts. This is especially so when we are talking about societies whose legal orders and governance have been denigrated and damaged by colonialism. While an in-depth discussion of the theory of “What is law?” is beyond the scope of this paper, it is safe to assert that law is more than merely a collection of “black letter” rules, whether written in statutes or unwritten and accepted by members of a group--what some define as “custom.” Only the staunchest of legal positivists take the black-letter view of the nature of law. Rather, many legal philosophers recognize that law can be decentralized and informed by various sources of law (legal pluralists), deeply influenced by the normative principles and values of those making and interpreting the law (interpretivists), and adhered to not simply out of fear of sanction but out of belief in shared normative values (interactionalists).

For our purposes, Ghislain Otis offers a helpful way to think about all legal orders as generally being composed of values, principles, rules, actors, and processes relating to the regulation of a group and the resolution of conflicts within that group or between groups. His explanation of the difference and relationship between values, principles, and rules is especially illuminating to the work of finding law in sources like language, stories, ceremonies, and the like. He describes a “value” as a “quality or characteristic deemed by a given community to be desirable or good.” On the other hand, a principle is “a reference standard based on values and on which it is appropriate to regulate an action or a conduct. Thus, the 'principle’ presents itself, in a certain way, as the generic normative translation of the ideal embodied by a value.” Finally, a “rule” is “a specific prescription applied to a particular situation in order to give practical effect to a principle.” Otis further describes that the three concepts are interlinked:

The triptych 'value, principle, rule’ appears in a way as a set of interlocking concepts. For example, in the context of a subsistence economy, the value of respect for life will be able to generate the principle of the sharing of food resources which, in turn, may be embodied in a rule conferring on an individual and his family in need the right to invite themselves to the neighbor's more game-rich hunting territory in order to obtain food.

The methods discussed in this paper allows for the drawing out of values and principles belonging to an Indigenous group based on their language. A group could, in turn, use such values and principles to inform the development of rules, their interpretation, or decision-making.

One does not have to be a fluent, first-language speaker to engage with linguistic methods for Indigenous law revitalization. Persons learning to be second-language speakers, using the various resources that are available, can engage in this work. In some cases, non-speakers can work alongside speakers, assisting in analysis and synthesis of meaning. This realization is important because many Indigenous peoples' relationship to their language, and hence its use for drawing out Indigenous laws, has been harmed by colonialism. On the one hand, it is common to hear leaders and elders emphasize the link between language and culture: “[t]he culture is in the language,” is an expression I have heard many times. Consequently, much law resides there too in the form of values and principles, as this paper's introductory quote from Sakej Henderson suggests. On the other hand, many Indigenous peoples, particularly middle-aged and younger generations, do not speak their Indigenous language because of colonial laws and policies that have affected Indigenous language transmission. I have heard many Indigenous people express feelings of shame or inadequacy for not knowing their language, even though it is not their fault. Accordingly, some of these people, when introduced to the idea of using Indigenous languages as a vehicle for law revitalization, assume they are unable to engage in such an exercise.

Thus, while Indigenous languages are seen as a rich potential source of Indigenous law, few feel confident in their ability to engage with language for law revitalization because they are not fluent speakers. By demonstrating that first-language fluency is not a strict precondition to engagement, my hope is that more people, especially Indigenous community members who may not yet be speakers in the language, are given confidence to feel they can engage in their community's laws in a meaningful way.

Before describing each linguistic method, in the next section I aim to provide context on the state of Indigenous languages in Canada and provide some history on the preservation of the Mìgmaq language. I do so to illustrate the different resources available to engage with language as a means to draw out law, as well as unpack some of the challenges associated with using these resources.

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This paper has sought to explain and illustrate five different methods for engaging with Indigenous languages to support the revitalization of Indigenous peoples' legal orders. Terms within Indigenous languages can present concepts that suggest normative standards regulating conduct (meta-principles). A collection of terms analyzed as a group (clusters) can illustrate nuances within an Indigenous concept, distinguishing it from European concepts and revealing important aspects of the Indigenous worldviews. Further, linguistic features--like grammar and word parts--can also tell us about the values of an Indigenous group, which can inform the principles and rules within the group's legal order. Finally, the Indigenous group's names for the landscape and its associated stories can elaborate upon Indigenous peoples' relationship with the land and waters, how and when they used it, the significance of such usage to their worldview, and more. My aim has been to show that the information encoded in language is rich and that it can inform the workings of an Indigenous legal order.

I have also endeavoured to show that this rich information is more accessible than most assume. It is not necessary to be a fluent first-language speaker to unlock the treasures to be found in Indigenous languages. There is a significant amount of published resources--like dictionaries, lexicons, reference and teaching texts, atlases, and more--that can be harnessed to learn and work with Indigenous languages. What is needed to draw out law from language is commitment and patience to learn and work with all resources available. Becoming a second-language speaker can go hand-in-hand with work to uncover the law that is coded in the language. My hope is that this revelation will inspire others who, like me, did not grow up speaking their Indigenous language, yet remain committed to Indigenous law revitalization. There exists a wonderful opportunity for Indigenous individuals to regain their language while also supporting their communities and nations in regaining their laws.

Associate Professor and Chancellor's Chair in Aboriginal Law and Policy at the Schulich School of Law at Dalhousie University, counsel with Burchells Wickwire Bryson LLP in Halifax, NS, and member of the Listuguj Mi'gmaq First Nation, located within the Gespègewàgi district of Mìgmàgi.