Val Napoleon – Indigenising Law

Uncategorized 12 Minutes

I attended a keynote speech by Dr Val Napoleon, introducing me to how she teaches indigenous Gitanyow (Gitksan) property law (Napoleon, 2019) in Canada. 

I was then thinking, how Māori could realistically teach iwi specific law papers at law school. I was raised, with an awareness that waka, iwi and hapū, in particular, have always had legal traditions (Kaumātua o Ngāti Hako, personal communication, 1996-present). This positioning enables me to ask, “why should we?” As opposed to, “can we?” I realised nobody had provided the localised thinking necessary to justify exploring pūrākau and pakiwaitara as authorities on Māori law. There is certainly some prior thinking, but not what is needed, namely, more than an assumption that Tikanga is law. Nor have many practical tools been provided. Accordingly, my current thesis (Carrucan, 2021 [forthcoming]) emerges exploring pūrākau and pakiwaitara as a growing basis for legal submissions.

The first work of Napoleon I consider is titled ‘An Inside Job’, aptly in my view, because it suggests one way to learn about indigenous laws is to learn about them from an internal point of view as the tried-and-true approach to learning civil law and common law (Napoleon, 2016, pp. 741-748). In particular, Napoleon writes:

“Each year, in law schools across Canada, many people learn the internal aspects of the common law and the civil law traditions. They do not become experts in any particular area, but they develop a foundation that enables them to work with and apply legal principles to factual situations in legal practice. It makes sense that learning the internal aspects of Indigenous legal traditions could enable them to build a similar foundation for practical application…”

(Napoleon, 2016, pp. 741-742).

The second work I consider is ‘Gathering the threads’, where, regarding John Burrows’ work:

“…he explicitly retold stories as cases and used the common-law “case method” to identify legal principles within single stories. We decided that connecting these legal pedagogies seemed sensible and effective. After all, cases or written decisions in Canadian law are also stories…”

(Napoleon & Friedland, 2015, p. 22)

Many key things are taking place within these statements. 

First, Napoleon enters a conversation by identifying what they say (ie law schools and cases), with connections to how law is taught and seen. This approach is advocated in our course reading They Say, I Say (Graff & Birkenstein, 2014, pp. 20). I find context and can anticipate what she advances from this approach: indigenised Canadian legal education. Her structured writing summarises the Canadian law school view quickly and the common-law ‘case method’ (Graff & Birkenstein, 2014, pp. 22), introducing what ‘they say’ in a template like fashion (pp. 23). This enables her to respond, somewhat similar to the exemplar template: 

“Those unfamiliar with this school of thought may be interested to know that it basically boils down to____________.”

(pp. 62)

As templated, Napoleon acknowledges, secondly, the positioning of Canadian law schools in 2016, their graduates and law in 2015 as outsiders to indigenous traditions from the curriculum. Napoleon is communicating the value of indigenous legal traditions. Her thinking, as quoted (pp. 741-742), suggests this is not something a Canadian law school nor pedagogy (p. 22) would have otherwise understood. I sense that like our course reading of Coyote Searching For The Bone Needle, the law school and pedagogy, are uncomfortable in the dark space Coyote must search; and in which Napoleon consistently writes (Archibold, 2008, pp. 35-36 ). Canadian law schools and pedagogy have eyes, but like old man Coyote near the fire, their positioning becomes a place of comfort, preventing discovery. In a gentle way, like the owl, (and much unlike Ivan Illich (Illich, 1968, p. 318 )), Napoleon identifies “common ground” on which idigenous legal traditions, law schools and pedagogy can meet. I learned that perhaps research can be a common ground finding exercise, where worldviews may engage. This requires a Smith approach to “3 Titiro, whakarongo …korero” (2012, p. 124).

Thirdly, “titiro” (p. 124), sees common ground emerge through implicit acknowledgement of established whakapapa underlying knowledge in civil and common law legal education and its practical value for lawyers, i.e. it “enables them to work.” (pp. 741-742). All fields have a whakapapa of sorts, requiring “whakarongo” (p. 124), i.e. a literature review (Whaanga, 2017, p. 11), because it connects us with what has been said, which we can then “…korero” (p. 124), i.e. summarise and respond to (Graff & Birkenstein, 2014, pp. 22). 

Our course materials so indicate literature review as deliberate, not scattergun or catch all (Tuhiwai-Smith, 2012; Whaanga, 2017; Wilson, 2008) typical of ‘a numbers game’ (Patton, 2015). I agree, having read some of Napoleon’s work (and including them in my LLM research proposal). These works are a ‘first read’, for me. I learned from this that knowing who is leading thinking provides a model researcher who will have new works, for returning to, emulating and outgrowing.

For me, Napoleon’s work sits within the fourth stage whakapapa framework of a developing indigenous paradigm, as described in Research is Ceremony (Wilson, 2008, pp. 53-54) because it seems to be that Napoleon has been able to “articulate their own approach.” That is evident from how directly she critiques the positioning of Canadian legal education (pp. 741-742). I did wonder if her ‘our law can fit with yours’ approach was simply to avoid marginalisation indicating second stage research (Wilson, 2008, pp. 53). 

I expect many want to be fourth stage researchers as Wilson describes, but I learned the outcomes of our research may be decisive. I concede even my thesis could well fall across both second and third stages (pp. 53) for some, depending on their opinion of the bi-jural, bi-legal practice it will advocate (Carrucan, 2012 [forthcoming]). Comparatively, Napoleon’s research has created institutional change and supported an indigenous law degree, so, I am confident these are both fourth stage research works (pp. 54).

Fourth, Napoleon explains it makes sense to engage through common-law method whakapapa, with indigenous legal traditions. In my research, I may make a similar claim (Carrucan, 2021 [forthcoming]). I have learned this is an option to explore. In order for Māori legal traditions to be viewed as serious and robust, they must face critique (and sometimes criticism) the two more popular sources of law always have. In making this claim I am aware the Peter Ellis decision is forthcoming (Beynen, 2020). I accept practically that Tikanga Māori will not be permitted to exist in a vacuum, on entering ‘statutory Courts’, but only in relationship with case law and statutes. For me, that is as it should be, until significant nation building is undertaken at the waka and iwi level. If Māori want a localised indigenous Court, either are the most effective groupings within which to pursue them. Māori may even want to consider a reopening and revitalising traditional rūnanga to resolve disputes. A focus of my research (Carrucan, 2021 [forthcoming]) is to explore within the bijural system, operating, what a relationship with Tikanga Māori means and what actionable expectations it burdens upon lawyers and Judges. 

That speech and both works, ultimately nudge us much like the owl away from our comforting fire (Archibold 2008). 

Bibliography of Val Napoleon’s Scholarly Works (ordered by year):

  • Napoleon, V. & Friedland, H. (2015). Gathering the Threads: Developing A Methodology For Researching And Rebuilding Indigenous Legal Traditions. Lakehead Law Journal 1(1) 16-44.
  • Napoleon, V. (2014, April 16). Val Napoleon at the IPinCH “Transforming Colonial Categories?” Workshop. YouTube. https://www.youtube.com/watch?v=LcyfAnv1M_k
  • Napoleon, V. & Friedland, H. (2014). Accessing Tully: Political Philosophy for the Everyday and the Everyone. In Nichols, R. & Singh, J. (Eds.) Freedom and Democracy in an Imperial Context: Dialogues with James Tully (pp. 202-222). Routledge. https://doi.org/10.1111/1478-9302.12101_16
  • Napoleon, V., Snyder, E., Borrows, L. & Friedland, H. (2014). Teaching Guide for Mikomosis and the Wetiko. ILRU.
  • Napoleon, V. (2013, 4 November). Making Native Space: Colonialism, Resistance, and Reserves in British Columbia. B.C. Studies Newsletter. https://bcstudies.arts.ubc.ca/book_film_review/making-native-space-colonialism-resistance-and-reserves-in-british-columbia/
  • Napoleon V. (2013). Mikomosis and the Wetiko. Victoria B.C: ILRU.
  • Napoleon, V. (2012). Thinking About Indigenous Legal Orders (revised). In Shepard, C. & Anker, K. (Eds.), Dialogues on Human Rights and Legal Pluralism. (pp. 225-245) Springer press. https://doi.org/10.1007/978-94-007-4710-4
  • Napoleon, V. (2012, September 3). One Engagement – A Moral Theory of Political Reconciliation. Jotwell, Equality online journal. https://equality.jotwell.com/one-engagement-moral-theory-of-political-reconciliation/  
  • Napoleon V. (2012). Octopus and Cannonball. Dropbox. https://www.dropbox.com/sh/pmzrm0kp5wlvyjr/AAAxXJ8M1flG4XCUHxsKRa2Ia?dl=0&preview=ValNapoleon_OctopusCannonball.mp4
  • Napoleon, V. (Ed.). (2011). Introduction. Alberta Law Review, 48(4), 807-1008. https://doi.org/10.29173/alr134
  • Napoleon, V. (2011). My Grandmothers’ Skin. In Graydon, S. (Ed.), I feel Great About My Hands And Other Unexpected Joys of Aging. (pp. 81-86) Douglas and McIntyre.
  • Napoleon, V. (2010). Behind the Blockades. Indigenous Law Journal, 9(1) 1-14. https://ilj.law.utoronto.ca/sites/ilj.law.utoronto.ca/files/media/Napoleon_E_0.pdf   
  • Napoleon, V. (2010). An Uncomfortable Discussion. Canadian Journal of Native Studies, 30(1), 45-48. http://www3.brandonu.ca/cjns/30.1/03Napoleon.pdf
  • Napoleon, V. (2009). Living Together: Gitksan Legal Reasoning as a Foundation for Consent. In Webber, J. & McLeod, C. (Eds.), Between Consenting Peoples: Political Community and the Meaning of Consent (pp. 45-76). UBC Press. https://www.ubcpress.ca/asset/9053/1/9780774818834.pdf
  • Napoleon, V. (2009). Indigenous Discourse: Gender, Identity, and Community. In Richardson, B. Imai, S. & McNeil, K. (Eds.), Indigenous Peoples and the Law: Comparative and Critical Perspectives (pp. 233‒256). Hart Publishing.
  • Napoleon, V. (2009). Looking Beyond the Law: Questions About Indigenous Peoples’ Tangible and Intangible Property. In Bell, C. & Paterson, R. (Eds.), Protection of First Nations Cultural Heritage and Law: Laws, Policy and Reform (pp. 370-393). UBC Press.
  • Napoleon, V. & Bell, C. (Eds.). (2008). First Nations Cultural Heritage and Law: Case Studies, Voices and Perspectives. UBC Press.
  • Napoleon, V., Cameron, A., Arcand, C., & Scott, D. (2008). Where is the Law in Restorative Justice?. In Belanger, Y. (Ed.), Aboriginal Self-Government, (3rd ed., pp. 348‒372). UBC Press & Purich Publishing.
  • Napoleon, V., Cameron, A., Arcand, C., & Scott, D. (2007). WHERE IS THE LAW IN RESTORATIVE JUSTICE?. Commission d’enquête sur les relations entre les Autochtones et certains services publics Québec. https://www.cerp.gouv.qc.ca/fileadmin/Fichiers_clients/Documents_deposes_a_la_Commission/P-263.pdf
  • Napoleon, V. (2007). Thinking about Indigenous Legal Orders and Law [Paper Presentation]. The National Centre for First Nations Governance.
  • Napoleon, V. (2007). Making Space for Aboriginal Feminism. Briarpatch, March/April Edition, 29–30.
  • Napoleon, V. & Peeling, A. (2007). Aboriginal Governance: An Annotated Bibliography. National Centre for First Nations Governance.
  • Napoleon, V. & Overstall, R. (February 2007). Indigenous Laws: Some Issues, Considerations and Experiences. Centre for Indigenous Environmental Resources, Winnipeg. https://ir.lib.uwo.ca/cgi/viewcontent.cgi?article=1163&context=aprci
  • Napoleon, V. (2005). Delgamuukw: A Legal Straightjacket for Oral Histories?. Canadian Journal of Law and Society, 20(2), 123-155. https://doi.org/10.1353/jls.2006.0025
  • Napoleon, v. (2005). Aboriginal Self Determination: Individual Self and Collective Selves. Atlantis: A Women’s Studies Journal, 29(2), 31-46. 
  • Napoleon, V. (2005). Justice as Healing: Adding to the Discourse. Justice as Healing: A Newsletter on Aboriginal Concepts of Justice, 10(3), 1-3.
  • Napoleon, V. (2004). By Whom, and By What Processes, Is Restorative Justice Defined, and What Bias Might this Introduce?. In Zehr, H. & Toews, B. (Eds.), Critical Issues in Restorative Justice, (pp. 33-45). Criminal Justice Press.
  • Napoleon, V. (2004). Who Gets to Say What Happened? Reconciliation Issues for the Gitksan. In Bell, C. & Paterson, R. (Eds.), Intercultural Dispute Resolution in Aboriginal Contexts (pp. 176-195). UBC Press. 
  • Napoleon, V. & Daly, R. (2003). A Dialogue on the Effects of Aboriginal Rights Litigation and Activism on Aboriginal Communities in Northwestern British Columbia. Social Analysis, 47(3), 108-129.
  • Napoleon, V. (2002). Raven’s Garden: A Discussion about Aboriginal Sexual Orientation and Transgender Issues. Canadian Journal of Law and Society, 17(2), 149-171.
  • Napoleon, V. (2001). Extinction by Number: Colonialism Made Easy. Canadian Journal of Law and Society, 16(1), 113-145.
  • Napoleon, V. & Wilson, E. (1995). Building Understanding Between First Nations Communities and Schools: A Discussion of the Significance of Culture in Defining Education. In McLarnon & Shauna, D. (Eds.), Northern Parallels: Fourth Circumpolar Universities Cooperation Conference (pp. 42-72). University of Northern British Columbia Press.

Bibliography for my blog post:

Archibold, J. (2008). Indigenous Storywork : Educating the Heart, Mind, Body, and Spirit. UBC Press.

Beynen, M. V. (2020, September 2) Supreme Court decision on Peter Ellis appeal is potentially groundbreaking Stuff https://www.stuff.co.nz/national/crime/300097378/supreme-court-decision-on-peter-ellis-appeal-is-potentially-groundbreaking

Carrucan, E. (2021). Ko Tikanga Māori te mātāmua o te whānau ture, me mihi, ka tika [forthcoming 2021 masters thesis]. University of Waikato. 

Graff, G. & Birkenstein, C. (2014). “THEY SAY I SAY” The Moves That Matter in Academic Writing (3rd ed.). W. W. Norton & Company.

Illich, I. (1968, April 20). To Hell with Good Intentions. Conference on InterAmerican Student Projects (CIASP), Cuernavaca, Mexico.

Kaumātua o Ngāti Hako, personal communication, 1996-present.

Literature Reviews: Common Errors Made When Conducting a Literature Review. YouTube. https://www.youtube.com/watch?v=NiDHOr3NHRA

Napoleon, V., & Friedland, H. (2016). An Inside Job: Engaging with Indigenous Legal Traditions through Stories. McGill Law Journal, 61(4), 725-754. https://doi.org/10.7202/1038487ar

Napoleon, V. (2019, 29 August). Did I Break It? Recording and Teaching Indigenous Law [Keynote speaker]. Te Hunga Rōia Māori Hui-ā-tau: Nā ko te pō, he rā ki tua, Wellington, New Zealand.

Napoleon, V. & Friedland, H. (2015). Gathering the Threads: Developing A Methodology For Researching And Rebuilding Indigenous Legal Traditions. Lakehead Law Journal 1(1) 16-44. Patton, M.Q. (2015, January 23).

Tuhiwai-Smith, L. (2012). Decolonizing Methodologies: Research and Indigenous Peoples (2nd ed.). Otago University Press.                                                                     

Whaanga, H. (2017). What is a literature review? [Powerpoint Slides]. Moodle. https://elearn.waikato.ac.nz/pluginfile.php/2194456/mod_resource/content/1/Literature_review_2017.pdf 

Wilson, S. (2008). Research is Ceremony: Indigenous Research Methods. Fernwood Publishing.

Published by Edmond Carrucan

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