Indigenous Constitutionalism and Dispute Resolution Outside the Courts: An Invitation
The Supreme Court of Canada’s jurisprudence on constitutionally protected Aboriginal rights filters Indigenous laws through the lens of liberal constitutionalism, resulting in distortions of Indigenous law. To overcome this constitutional capture, this article advocates for an institution that facil...
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crsagepubl:10.1177/0067205x20955069 2024-06-16T07:33:29+00:00 Indigenous Constitutionalism and Dispute Resolution Outside the Courts: An Invitation Drake, Karen 2020 http://dx.doi.org/10.1177/0067205x20955069 http://journals.sagepub.com/doi/pdf/10.1177/0067205X20955069 http://journals.sagepub.com/doi/full-xml/10.1177/0067205X20955069 en eng SAGE Publications http://journals.sagepub.com/page/policies/text-and-data-mining-license Federal Law Review volume 48, issue 4, page 570-585 ISSN 0067-205X 1444-6928 journal-article 2020 crsagepubl https://doi.org/10.1177/0067205x20955069 2024-05-19T13:05:17Z The Supreme Court of Canada’s jurisprudence on constitutionally protected Aboriginal rights filters Indigenous laws through the lens of liberal constitutionalism, resulting in distortions of Indigenous law. To overcome this constitutional capture, this article advocates for an institution that facilitates dispute resolution between Canadian governments and Indigenous peoples grounded in Indigenous constitutionalism. To avoid a pan-Indigenous approach, this article focuses on Anishinaabe constitutionalism as one example of Indigenous constitutionalism. It highlights points of contrast between Anishinaabe constitutionalism’s and liberalism’s foundational norms and dispute resolution procedures. This article argues that a hybrid institution—combining features of both liberalism and Indigenous constitutionalism—would merely reproduce the constitutional capture of Aboriginal rights jurisprudence. It also illustrates how the procedures of talking circles—which are one means of giving effect to persuasive compliance—promote the voice of all involved. Finally, this article argues that from the perspective of Anishinaabe constitutionalism, the non-binding nature of the processes offered by the new institution would be a strength, not a drawback. Article in Journal/Newspaper anishina* SAGE Publications Federal Law Review 48 4 570 585 |
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The Supreme Court of Canada’s jurisprudence on constitutionally protected Aboriginal rights filters Indigenous laws through the lens of liberal constitutionalism, resulting in distortions of Indigenous law. To overcome this constitutional capture, this article advocates for an institution that facilitates dispute resolution between Canadian governments and Indigenous peoples grounded in Indigenous constitutionalism. To avoid a pan-Indigenous approach, this article focuses on Anishinaabe constitutionalism as one example of Indigenous constitutionalism. It highlights points of contrast between Anishinaabe constitutionalism’s and liberalism’s foundational norms and dispute resolution procedures. This article argues that a hybrid institution—combining features of both liberalism and Indigenous constitutionalism—would merely reproduce the constitutional capture of Aboriginal rights jurisprudence. It also illustrates how the procedures of talking circles—which are one means of giving effect to persuasive compliance—promote the voice of all involved. Finally, this article argues that from the perspective of Anishinaabe constitutionalism, the non-binding nature of the processes offered by the new institution would be a strength, not a drawback. |
format |
Article in Journal/Newspaper |
author |
Drake, Karen |
spellingShingle |
Drake, Karen Indigenous Constitutionalism and Dispute Resolution Outside the Courts: An Invitation |
author_facet |
Drake, Karen |
author_sort |
Drake, Karen |
title |
Indigenous Constitutionalism and Dispute Resolution Outside the Courts: An Invitation |
title_short |
Indigenous Constitutionalism and Dispute Resolution Outside the Courts: An Invitation |
title_full |
Indigenous Constitutionalism and Dispute Resolution Outside the Courts: An Invitation |
title_fullStr |
Indigenous Constitutionalism and Dispute Resolution Outside the Courts: An Invitation |
title_full_unstemmed |
Indigenous Constitutionalism and Dispute Resolution Outside the Courts: An Invitation |
title_sort |
indigenous constitutionalism and dispute resolution outside the courts: an invitation |
publisher |
SAGE Publications |
publishDate |
2020 |
url |
http://dx.doi.org/10.1177/0067205x20955069 http://journals.sagepub.com/doi/pdf/10.1177/0067205X20955069 http://journals.sagepub.com/doi/full-xml/10.1177/0067205X20955069 |
genre |
anishina* |
genre_facet |
anishina* |
op_source |
Federal Law Review volume 48, issue 4, page 570-585 ISSN 0067-205X 1444-6928 |
op_rights |
http://journals.sagepub.com/page/policies/text-and-data-mining-license |
op_doi |
https://doi.org/10.1177/0067205x20955069 |
container_title |
Federal Law Review |
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48 |
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4 |
container_start_page |
570 |
op_container_end_page |
585 |
_version_ |
1802004995262906368 |