Foreword

of Cree ancestry at the University of Manitoba, has undertaken a remarkably difficult task in Aboriginal Justice and the Charter.In these pages, he considers the broad range of issues necessary to make a case for the creation of free-standing Aboriginal justice programs, conceived and administered by Aboriginal communities themselves.Milward examines various Aboriginal concepts of justice, keeping an eye out for the difficulties inherent in reconstructing ideas and practices long since pushed underground by the colonizers.However, since Canadian Aboriginal peoples (First Nations, Métis, and Inuit) are subject to Canadian law, as Milward writes, it is not entirely clear on which grounds they might create and operate their own justice initiatives.To get at this problem, he advocates the concept of the culturally sensitive interpretation of legal rights as articulated by the Royal Commission on Aboriginal Peoples in Bridging the Cultural Divide. 1 Milward makes the assumption (he is aware that it is contentious) that Aboriginal communities can exercise broad jurisdiction over criminal justice under section 35(1) of the Constitution Act, 1982. 2 The idea is that the Canadian Charter of Rights and Freedoms might be reinterpreted so as to provide greater room for the operation of Indigenous methods of justice. 3These ideas, together with the R. v Oakes tests for constitutional justification, as refined by the decision in Dagenais v Canadian Broadcasting Corporation, Milward suggests, could constitute the grounds that would allow non-hierarchical accommodation when constitutional rights come into conflict (for example, Aboriginal rights to criminal jurisdiction versus legal rights). 4 This interpretation implies a blending of older Indigenous teachings and Canadian legal principles.Since Aboriginal peoples within Canada have now lived for a century and a half or more under some form of common law, many have syncretic notions of natural law and Aboriginal law, and expectations of the law have also changed.Milward poses the question of whether Indigenous law can evolve to meet contemporary needs in light ofx Foreword the accommodation of traditional practice and Canadian common law standards.He thinks it can.Conventionally, there is a division of labour in writing about Aboriginal law, including those who write about law as it concerns Aboriginal peoples and communities within Canadian legal orders.This group is primarily, but not entirely, composed of legal scholars who examine case law, with a smaller contingent coming from history, anthropology, and, perhaps more recently, literary and cultural studies, and who explore the social and cultural ramifications of Canadian law for Aboriginal people and society at large.Members of an altogether different group write about the historical practice of law within Aboriginal communities.Scholarly attempts to reconstruct Aboriginal legal orders started seventy-five years ago with the pioneering work of a team consisting of legal scholar Karl Llewellyn and his anthropologist colleague E. Adamson Hoebel.Writing within the legal realist tradition, they analyzed fifty cases of Cheyenne dispute reso lution, based on the memories of elders, to extract the legal genius of the culture.The resulting seminal work, The Cheyenne Way, was published in 1941. 5However, the work of studying what appeared to be vanishing legal concepts and practices primarily fell to anthropologists who remained interested in the diversity of approaches to justice in non-Western societies.For a long time, the topic seemed unimportant and unnecessary to the Canadian public.Unlike their approach to colonialization in India and Africa, there had been no intention on the part of the British to rule through local elites, a circumstance that would require that regional juridical practices be recorded in writing.In North America, at least following the War of 1812, there was no comparable incentive.I must point out that there were exceptions -senior Aboriginal people adjudicated cases involving whites in the Oregon Territory before the creation of the international border in 1846, for example, and mainstream courts have accounted for Aboriginal law in rulings involving Aboriginalwhite crime.In any case, a visit to the law library at the University of British Columbia reveals rows of books about the laws of African and Indian peoples but little about those of North American Aboriginal people.Surprisingly few scholars have considered historical concepts and practices with regard to Canadian law concerning Aboriginal people.David Milward is one of these, and more studies appear to be on the way.More recently, legal scholars, often Aboriginal community members themselves, have begun to undertake their own examination of these historical practices.Some have attempted to integrate the ideas inherent in mythology and the behaviour of culture heroes into their interpretations, arguing that these stories constitute the ancestral laws.Notably, legal scholars Val Napoleon and John Borrows are among those attempting to apply Aboriginal narrative to interpreting legal orders, and there is now a younger generation,

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