Canada’s Indigenous Constitution by John Borrows, and: Drawing Out Law. A Spirit’s Guide (review)

A respected Anishnabek law professor and storyteller, John Borrows has studied, taught, and reflected on the relationship of Indigenous legal traditions and Canadian law for the past two decades. This review essay looks at Borrows’s two recent publications about Indigenous legal traditions: Canada’s Indigenous Constitution and Drawing Out Law: A Spirit’s Guide. The books are directly connected in that Drawing Out Law is an extension of Anishnabek storytelling and related legal traditions that are touched on in Canada’s Indigenous Constitution.

As a Haudenosaunee woman (Kanienkehaka/Mohawk Nation), I feel that I can be respectfully critical of Borrows’s specific descriptions of Haudenosaunee legal traditions in Canada’s Indigenous Constitution. My critique draws on the work completed in my LL.M. thesis, in which I studied Haudenosaunee legal traditions and international law. In my LL.M. thesis, I argued that our onkwehonwe language was key to our laws—“our way of being”—and that the concepts of ceremonies, religion, law, education, health, politics, and so forth are inseparable. They are all intertwined, intermingled, and holistic.

In Canada’s Indigenous Constitution, Borrows makes two important points about the relationship between Canadian laws and Indigenous laws. Firstly, Borrows argues that Canada should be a multi-juridical country that embraces common law, civil law, and Indigenous legal traditions. He argues that the laws of Indigenous peoples hold “modern relevance” that “can be developed through contemporary practices” (p. 10). Borrows also argues that various legal traditions can exist within one system while acknowledging that Indigenous legal tradition has “its own distinctive methods for development and application” (p. 8). Secondly, Borrows points out that Canadian law fails to acknowledge that Indigenous legal systems existed long before colonization. Borrows argues that “it is a mistake to write about Canada’s constitutional foundations without taking account of Indigenous law” (p. 15). Borrows further notes that “colonization is not a strong place to rest the foundation of Canada’s law” because it erases Indigenous legal systems as a source of law in Canada and “lies at the root of conflict between Indigenous peoples and the Crown” (p. 14).

I agree with Borrows that Indigenous legal systems need to stand on equal footing with common and civil law. His concern arises out of the observation that legal positivists fail to view Indigenous legal traditions as law. Such scholars relegate Indigenous law to the realm of custom. I share the “uncomfortableness” (p. 13) that he describes from his time in law school, when Indigenous peoples’ legal traditions were described as inferior to Canada’s laws. I, like Borrows, disagree with any description of a hierarchy of laws, in which Indigenous legal traditions are at the bottom of Canada’s legal structure.

In Canada’s Indigenous Constitution, Borrows affirms that Indigenous peoples have choices when they turn to their own Indigenous legal traditions. He provides various sources of law within Indigenous communities including sacred law (creation stories, treaty relationships); natural law (relationship with the natural world); deliberative law (talking circles, feasts, council meetings, and debates); positivistic law (proclamations, rules, regulations, codes, teachings, Wampum readings); and customary law (marriages, family relationships, recent land claim agreements). He acknowledges the diversity of legal traditions that Indigenous peoples hold and that Indigenous legal traditions are “just as varied and diverse as Canada’s other legal traditions, although they are often expressed in their own unique ways” (p. 24).

In Canada’s Indigenous Constitution, Borrows has dedicated a chapter to eight examples of Indigenous legal traditions from the Mi’kmaq, Haudenosaunee, Anishnabek, Cree, Metis, Carrier, Nisg’a, and Inuit peoples. In providing brief descriptions of each of these Indigenous legal traditions, Borrows reminds us that “all legal traditions are subject to various interpretations” (p. 60). While I understand why Borrows has provided a brief background on these different traditions, readers should understand that it takes a lifetime to...