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 learn and understand an individual Indigenous person’s legal traditions. One should be mindful that a full understanding of those specific Indigenous legal traditions is impossible to develop in a few brief pages.

In Drawing out Law, Borrows does justice to Anishnabek legal traditions in explaining his journey to understanding them. In this book, Borrows recounts his own personal story of learning about his legal traditions and reflects on the path of interpreting a vivid dream that he had. He finds answers to the questions raised in the dream by revisiting his family, where his grandparents tell stories that they had waited to share with him until the time was right. This book recounts his personal journey and incorporates reflections on Canadian law that are applicable to Anishnabek legal traditions. In this way, it differs from the more analytical Canada’s Indigenous Constitution.

In Canada’s Indigenous Constitution, Borrows provides a brief description of the Great Law of Peace, one of many sources of Haudenosaunee legal traditions. However, the Great Law is not the only source of Haudenosaunee legal traditions. We rely on all of the sources that Borrows describes, including but not limited to creation stories, clan systems, recitals of hundreds of Wampum belts, peace and friendship treaties, and the Thanksgiving Address.

Though I wish to reflect further on it, I do agree with the following statement by Borrows about my people’s legal traditions:

The Kus Wen Tah (Two Row Wampum or “River of Life”) is a peace and friendship treaty between the Haudenosaunee and the British. As Borrows writes, “[A]s nations move together side by side on the river of life, they are to avoid overlapping or interfering with one another” (p. 76). Because of this legal principle, he says, the Haudenosaunee peoples maintain their strong stance that they “are the least likely of any Indigenous group to support or embrace the application of their laws as part of the Canadian legal system” (p. 76). In fact, when the British unilaterally created the British North America Act and the Indian Act, it violated the legal principles of Kus Wen Tah. British laws were used as a tool of assimilation to encroach on all Indigenous peoples’ lands and territories, and these laws directly interfered with the lives of all Indigenous peoples, including the Haudenosaunee peoples. Since colonization, this heated issue has remained unresolved. It is for these specific reasons that the Haudenosaunee peoples (People of the Longhouse) would reject the idea of Canadian multi-juridicalism.

Language is a central theme in both of these books. In Drawing Out Law, Borrows focuses on the Anishnabek language to describe aspects of his legal traditions. In Canada’s Indigenous Constitution, he notes that language provides the key to understanding Indigenous legal traditions. He states that differences in language and interpretation need to be understood in all three legal traditions, and that a framework is needed that avoids subordinating Indigenous legal traditions and gives them equal weight as “a real source of rights and obligations in our country” (p. 119). Such a framework “places Canadian law on a firmer foundation because Indigenous law provides ways to allocate or alienate or share land within their communities and with others in ways that are more consistent with the demands of justice” (p. 123). He argues that all three legal traditions can be drawn together to respect the land and relationships to the land, and that “Indigenous peoples are not the only beneficiaries under the treaties. Non-Indigenous peoples also have treaty rights” (p. 123). These arguments, presented by Borrows, are the same as those that were presented in Kus Wen Tah and eventually violated by British/Canadian legislators.

Borrows attempts to demonstrate what legal analysis might look like if multi-juridicalism were a more prominent part of Canada’s constitution. He reveals the gaps that exist within Canada’s constitutional order to implement Indigenous legal traditions. He also reviews the Supreme Court of Canada’s “integral to the distinctive culture” test and notes that this test “inappropriately encumbers and potentially distorts Indigenous spirituality and the constitutional protection available to it under Section 35(1)” (p. 263). I do find it very difficult to apply Indigenous spiritual beliefs within the Canadian court system. It is beyond that Eurocentric system’s capacities to provide that kind of spiritual protection to Indigenous peoples. For me, this highlights the difficulties in Borrows’s effort to “fit” Indigenous legal traditions into the Canadian bi-juridical system to make it multi-juridical.

As Borrows notes, the players within the Canadian legal system have a lot of work to do to understand the spiritual beliefs and laws of Indigenous peoples. A respectful understanding of difference and a different way of thinking needs to emerge before Indigenous peoples will develop enough trust to open up their ways of life in a Canadian court. Borrows confirms the lack of appreciation of Indigenous spirituality and practice in his analysis of Jack and Charlie v The Queen. In this case, the Supreme Court of Canada failed to understand a ceremony of the Coast Salish peoples that involved killing a deer for spiritual purposes (p. 251).

For those readers who agree with Borrows’s arguments regarding the implementation of Indigenous legal traditions within a multi-juridical Canada, Canada’s Indigenous Constitution is an excellent source of knowledge. However, as Borrows concludes, there is “still much work to be accomplished before Canada’s constitution can be regarded as rigorously multi-juridical” (p. 270). Equally, for those readers who want to understand Anishnabek storytelling and legal traditions, Drawing Out Law: A Spirit’s Guide is an illuminating work.