In December 2013, a small group of academics gathered at the University of Leeds for a working paper conference entitled Spaces of Indigenous Justice. According to the concept paper for the workshop,1 the plan was to use the āspatial turnā that occurred in the humanities as a foundation for exploring new conceptions of space and to facilitate dialogue across academic disciplines under the umbrella of socio-legal studies. The ultimate objective of this interdisciplinary and comparative project was to bring together scholars of law, legal theory, sociology, political philosophy, anthropology, geography, and public policy in order to consider āspacesā of Indigenous justice and governance, as well as those of interaction, transfer, reciprocity, recognition, and hybridity between the Indigenous and non-Indigenous worlds.
By the end of the two-day workshop, it was clear that this concept had the potential to be more than a mere academic exercise. The approaches discussed and the examples explored during those two days contained genuine potential for developing into new and perhaps more successful approaches to pursuing justice for Indigenous people and communities across the globe. By the end of the workshop, a second one was planned for the following year, to be hosted by the University of Arizona. This University of Arizona workshop served to reinforce the usefulness of this new approach and helped to further define and articulate the approach and the foundation upon which it rests. The Spaces of Indigenous Justice Project is built on five foundational pillars:
- (1)Litigation is not always the answer and it should not be the automatic first response to an injustice.
- (2)Leveraging additional human rights at either the domestic or international level has the effect of funnelling claims into adversarial legal forums.
- (3)The best and most effective strategies for achieving justice are interdisciplinary and multimethodological.
- (4)Legal philosophical and sociological theories offer vital critical insights and perspectives on issues of Indigenous justice.
- (5)In developing a strategy, Indigenous people and communities should be at the table as equal partners; they cannot and should not be the subject of academic experimentation.
A core purpose of these pillars is to draw attention to the range of alternative approaches and tools available for the construction of customised solutions for specific problems encountered by specific communities. This holistic approach is in contrast to the standard one, which begins (and often ends) in the laws governing Indigenous communities and their relationship to nation state governments. Considering that the majority of these laws were promulgated by regimes intended to subjugate and assimilate Indigenous peoples, it is no surprise that they have been unsuccessful both in fostering self-determination or protecting Indigenous identities and cultures, neither of these ever really being an honest objective.
In its inherent interdisciplinarity and employment of multiple methods, the multidimensional spaces approach transcends the disciplinary limitations of Indigenous peoplesā law and makes its focus Indigenous justice. Moreover, in its consideration of legal normative ordering within society it adopts a fundamentally legally pluralist position, recognising within justice claims the importance of local and contextual issues. This is a fertile approach, and one with significant potential not only within the sphere of Indigenous justice but also beyond; while the main concern of this volume is Indigenous justice, the innovative socio-legal work undertaken here is also of relevance to the situations of minority groups and peripheral communities, which lack the political status of Indigenous nations, but which may separate themselves in some respects from the dominant culture.
The 14 essays selected for inclusion in this volume were drawn from both the Leeds and Arizona workshops, and represent approaches, tools, and solutions that are at the core of the Spaces of Indigenous Justice Project. First, each works on multiple levels, from being an individual case study or an exploration of one potential tool to illustrating a larger point stretching across multiple systems. In addition, this approach has the benefit of avoidingāor at least minimisingāthe āpan-Indigenousā problem of homogenising and essentialising Indigenous groups.
Second, the essays and contributors come from a variety of academic disciplines, including law, sociology, public policy, economics, socio-legal studies, anthropology, and American Indian studies. The volume also makes a concerted effort to include the voices of early career scholars. The Spaces of Indigenous Justice Project is designed to foster new and creative approaches that reach across traditional boundaries. By infusing the work of the emerging generation of scholars, this collection both provides a platform for new voices and helps to encourage a new generation of academics to think outside traditional academic disciplines and silos. Of the 18 authors involved in this volume, a third were in the late stages of a doctoral programme when they received the invitation to participate.
Finally, this volume makes a deliberate effort to include the voices of Indigenous scholars and those scholars who have extensive experience working with Indigenous communities. If one of the goals of the project is to include Indigenous people and communities as equal partners at the decision-making table, they should also be equal partners in developing the theories and approaches that will guide that decision-making. Three-quarters of the contributors to this volume are either Indigenous or have substantial experience working cooperatively with Indigenous communities. There is representation from all four CANZUS (Canada, Australia, New Zealand, and the United States) countries, in addition to India and the United Kingdom.
To date, the most common approach to accommodating Indigenous justice claims has been the inclusion of Indigenous law and legal practices within those of the dominant legal order. Experience with this approach leads us to identify two categories of problems that arise repeatedly and which provide a useful framing for the examples contained within this collection. We have styled these categories as issues of conceptualisation and implementation.
Conceptualisation problems, we submit, arise at the stage of determining how, where, and in relation to what the respective legal orders should interact. We outline four requirements for best practice. First, it is vital that any transplanted legal feature2 be more than simply the functional equivalent to any non-Indigenous counterpart. If it were a mere substitution, there would be no reason beyond symbolism for borrowing the feature. The transplanted feature must bring with it something special or different. The reasons for its transplantation thus pertain to its unique contribution, and maintaining the full nature of the contribution necessarily requires an understanding of context, of the true role played by the legal feature. Further to this, caution should be exercised in terms of generalising across disparate Indigenous groupsāa solution appropriate for one context may not be suitable for another, and it is important that there is no homogenisation of Indigenous communities, deliberate or otherwise. The third conceptual consideration is a temporal one. Legal cultures evolve and adapt over time, whether by accident or design, meaning that it would be a mistake to āfreeze-frameā how these are at a particular moment in time. While this observation holds true for both the dominant and Indigenous legal cultures, the danger is that it is the Indigenous legal culture that is erroneously bounded and concretised. Finally, interactions ought to be genuine, which is to say that engagement with tribal law should be respectful and not merely lip service. For example, the opportunity for an Indigenous community to provide testimony about its child-rearing practices is empty unless there is also an effective mechanism for its consideration, while obligations to consult mean little if they are not undertaken in good faith by both parties. Bearing these four requirements in mind can be useful in avoiding many of the pitfalls that can arise in each of the approaches.
Implementation challenges arise subsequent to conceptualisation issues, and concern the codification, application, and amendment of Indigenous legal features. Codification challenges concern the legal means by which a ānewā Indigenous legal feature is introduced into the overarching legal order. Common law or statutory provision, regulation or policy choiceāthe selection of the mechanisms and procedures through which such a legal feature is included is often indicative of the degree of import placed upon it. Targeted scrutiny of this, therefore, can be revealing. Application challenges, by contrast, encompass decision-making issues in terms of when and under what circumstances the legal feature should be brought to bear. Perhaps the most important consideration here is the issue of ensuring that those charged with application have the necessary information and understanding to be able to properly do so. Amendment challenges involve a related query, that is, in the event that the new legal feature requires alteration, who is empowered to do so? Does the authority to take this decision rest with the Indigenous legal order of its origin or with the principal legal order of which it is now a component part? Comparative legal studies has engaged with some of these issues in the context of nation state constitutional borrowing and legal transfer,3 for example, but such theoretical inquiry in terms of Indigenous legal orders is still limited. This volume is intended as a contribution to this debate.
This collection opens with four essays that set the stage by examining current approaches. The chapters in Part I each explore an aspect of the issues that prompted the Spaces of Indigenous Justice Project. Stephen Cornell leads off by identifying two different aspects of justice and discussing what these mean for Indigenous communities. His primary focus is on the Nisgaāa Nation, one of the First Nations located in what is now Canada, and he explores the issues confronting them as they move from fighting for the right to govern themselves to, on winning that right, suddenly realising that they had to figure out how to govern themselves. Kirsty Gover follows with a case study that explores why litigation that relies on existing laws governing relations with Aboriginal and Torres Strait Islander peoples is almost certainly destined for failure. She uses the case of Maloney v The Queen to illustrate how āanti-discrimination law has not only failed to support an obligation to consult Australian Indigenous peoples, it has also disempowered Indigenous communities in their dealings with Australian governments and undermined their efforts to self-governā. Darren Modzelewskiās chapter uses the water rights claims of the Pueblos in the southwestern United States to demonstrate that Goverās critique is not Australia-specific, but rather is equally applicable to the United States, and arguably also to other countries. Concluding this part, Terri Libesman examines how the involvement of western-based human rights as interpreted through the lens of neoliberalism into Aboriginal and Torres Strait Islander child welfare cases has been counterproductive, and ultimately served to perpetuate the cycle of unjust removals rather than helping to break it.
Part II focuses on efforts to secure the recognition of Indigenous customs and traditions by the dominant legal order. Renee Racette begins this part with a chapter illustrating how the process of incorporating First Nationsā law unfolded through Aboriginal Title cases in Canada. As the chapters in this part illustrate, this approach is perhaps the most dangerous one because it is the most difficult to do correctlyāoutsiders are making decisions about a legal culture not their own, often with little to no formal training or understanding. Amrita Mukherjeeās chapter uses the case study of Jharkhand to provide an illustrative example of the problems that can occur when law from one legal system is imported into a different system. The two chapters by Sarah Ciftci and Deirdre Howard-Wagner both reinforce this point, arguing that merely importing the law of the Indigenous group may not in itself be sufficient, and that to ensure that the law is used correctly it is important to involve people knowledgeable about the law in its original context. These arguments recognise the importance of effective communication across the relevant cultures in leading to genuine understanding. Mary Spiers-Williams and Steve Patrick conclude with a chapter that demonstrates both the difficulties with and potential rewards of cross-cultural understanding and cooperation.
Part III then turns to an examination of new tools and approaches and what they can bring to the table. Hendry and Tatum lead off this part with a chapter that not only employs the concept of interactive legal culture to argue in f...