Thickening Totems and Thinning Imperialism

Abstract

This thesis analyzes the relationship between the legal traditions of indigenous peoples and the Canadian State. I posit that the current relationship is aptly characterized as imperial. The imperial dynamics of this relationship perpetuate imbalances of power between the two traditions. This situation of power imbalance produces two effects that are of concern here. First, it enframes the development of indigenous legal traditions within the liberal state, domesticating indigenous norms to accord with liberal norms. Second, it disencumbers indigenous peoples ancestral territories from indigenous authority that would inhibit Canadian and global market penetration. I rely on theoretical literature in the fields of legal pluralism and postcolonialism to develop this argument. A deep conception of legal pluralism allows us, as researchers, to think of state law as developed by a single legal tradition that co-exists with indigenous legal traditions. Postcolonial theory aids us in analyzing the particular manner in which power works in situations of colonialism and imperialism to privilege certain legal orders over others. I suggest that indigenous life is not fully enclosed by imperialism, and that as indigenous peoples we should engage those non-imperial sites and practices deeply to thicken our capacity to live freely. I suggest indigenous practices of totemism represent one such site.

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