Indigenous Peoples Research Project
The questions I will be pursuing over the next five years focus on the development and evolution of intersocietal law in the Canadian Northwest. Intersocietal law is a term that has been used to describe the body of customs and norms that developed to govern interactions between the Crown and Aboriginal peoples in the seventeenth and eighteenth centuries (Slattery, 2000). This body of law has been theorized as mediating relations between the settler society and indigenous peoples, and as a source of Aboriginal rights in Canadian law. The aim of my research is to provide a grounded account of intersocietal law and thereby instil this notion with greater particularity on a theoretical level as well in regards to geo-political, ethnic, and historical contexts.
The project is primarily an historical study, looking at relations between Cree and Dene groups with Hudson’s Bay Company traders in the early fur trade as the starting point. In this early era (late seventeenth and eighteenth centuries), normative ordering grew up around the participants’ trading activities. My research will first attempt to discern the substantive and procedural aspects of this normative order and to characterize the nature of this order. Mindful of the traps of inquiring into a foreign, historical legal order through the categories of contemporary Canadian law, this characterization will, as much as possible, follow from observations of normativity found in the historical record. General questions that will be pursued include: Did the normative order develop through explicit negotiation, a more subtle evolution of practices, or a combination of these and/or other processes of formation? What relationship did it have to legal traditions of the indigenous and European participants? Did it govern relationships between individuals or between kin and/or political groupings? Did it encompass governance issues, and issues relating to land and territory? How and to what extent did it impact the internal dynamics of the participant societies?
My preliminary research on these questions suggests that while a thin body of intersocietal custom developed, the practices encountered were largely informed by the trading and diplomatic protocols of the indigenous participants. Moreover, even practices and agreements within this thin layer of intersocietal norms were likely imbued with discordant meanings by the Aboriginal and European participants. As such, it is important to be cautious so as to not overstate the shared normative sensibilities in an intersocietal order where the glue that holds it together in more likely to be found in the expediencies of mutually complementary material interests and the gradual development of cross-cultural kin relationships. Nevertheless, the dynamics of an intersocietal order are detectable and worth pursuing for the glimpses of indigenous legal orders and European responses to them that this study provides, as well as serving as a counterpoint to theoretical discussions of what constitutes an intersocietal legal order and related reflections on governance in plural societies. In addition, this research emphasizes the strength and contribution of indigenous legal orders in developing stable and constructive relationships with European settlers and thus further supports the work of scholars in this project in the construction of contemporary governance relationships that are capable of respecting and drawing upon indigenous legal orders.
The next step in the research is to consider the evolution of this normative order over the course of the fur trade and how it influenced the negotiation of the numbered treaties at the end of the nineteenth century, focussing on Treaties 8 and 11. The starting hypothesis is that there are significant continuities to be found between the normative order of the fur trade and the relationships and normative regimes of the treaties. To the extent that the research will be able to establish these continuities, it will provide a fresh perspective on treaty relationships and further support for grounding constitutional relationships in a body of law that developed through the negotiation of the relationship between Aboriginal peoples and the settlers over time. By tracing the trajectory of the intersocietal normative order over time, this historical study will also serve as a study of the process and dynamics of intersocietal law, and an opportunity for reflection on the governance relationships described in s. 35 and treaty jurisprudence.
Project Themes
The research outlined above relates to the larger project on a number of levels. One of the project’s aims is to move governance relations out from under the constraints of colonial, paradigmatic and juridical constructions of Aboriginal peoples and their rights. This research implements the theoretical orientations of the project by detailing the normative contributions of indigenous peoples to the formative governance relationships in the Canadian Northwest. Moreover, it is often the case that in searching for ways to improve governance relationships with indigenous peoples, we must first understand the relationships of the past and attempt some bridging of non-aboriginal and aboriginal interpretations of that past. This research contributes to this process through the description of the normative orders upon which treaty relationships were built in the Canadian Northwest, and potentially providing new interpretive possibilities in understanding treaty relationships more generally.
More specifically, my research relates directly to aspects of the themes defined in each of the domains. Domain one, for example, involves the elaboration of culturally specific conditions of negotiation and dispute resolution. While not aimed at describing any particular indigenous legal order, this study also involves the description of culturally specific regimes of regulating social and economic relations (mostly as applied in interactions with Europeans) and necessitates some inquiry into Cree and Dene legal orders in the eighteenth through to twentieth centuries and thus relates to the work of chantier one. My research is perhaps best located within the work of chantier two, specifically in terms of this group’s efforts to articulate the paradigmatic constraints and opportunities which impact contemporary indigenous legal orders. It contributes to this chantier by providing a study of contrasting legal cultures and the dynamics of a joint normative order in the particular historical contexts of this research. In addition, the pursuit of normative continuities and intersocietal normative orders in this research may also suggest the need to re-visit jurisprudential approaches to interpreting the treaties and provide the necessary historical foundations to do so. Finally, the investigation of a historical intersocietal normative order also relates to domain three by providing material to facilitate further theorizing with respect to the normative foundations for governance relationships between indigeneous and non-indigenous societies.
Working Suggestions
I would like to participate in forums for conversation, both formal and informal (presentations at conferences, email dialogue groups, commenting and receiving comments on draft papers, etc.) and undertaking joint research where it makes sense. There are several researchers within the program whose work I am familiar with and who I know will push my theorizing around the notion of intersocietal law (most people involved in chantiers 2 and 3, as well as Darlene Johnston and Michael Coyle from chantier 1). I also see the interdisciplinary nature of the program as a unique opportunity for well-conceived interdisciplinary scholarship. However, I am less familiar with the work of the anthropologists and sociologists in this project and would appreciate some structure or guidance from the programs organizers to facilitate the sharing of research across disciplinary boundaries.
One suggestion is to allow some time for smaller working groups at annual gatherings to allow for informal discussions around shared research interests. I might usefully be paired with researchers on contemporary dispute resolution mechanisms and negotiations processes. Such potential exchanges would allow greater elaboration of the cultural specificity of such mechanisms, the proper identification of common themes, and opportunities for reflection on the culturally and geo-politically distinct dynamics of power relations and the influence of the differences in colonial history as well. I might also productively contribute in discussions relating to researching and articulating ‘informal’ law.
