“Indigenous Constitutionalism” with Prof. Karen Drake and Prof. Aaron Mills (Work-in-Progress)

Join us for a work-in-progress session on the draft paper “Indigenous Constitutionalism,” co-authored by Professor Karen Drake (Osgoode) and Professor Aaron Mills (McGill University).

Over the last several decades, Canadian legal scholars, judiciaries, legislatures, administrative decision-makers, law schools, law societies and bar associations have seen a nascent, sustained and now rapidly expanding interest in supporting and developing the revitalization of Indigenous laws. However, actors within each of these domains of legal activity have typically revitalized Indigenous law without appeal to any notion of Indigenous constitutionalism. In the result, although their initiatives have emphasized the authority of Indigenous peoples to develop their own laws, they have ordinarily pursued that end narrowly, without serious consideration of any Indigenous-specific authority that might characterize and legitimate those laws. In the result, revitalized Indigenous laws have routinely been rendered through the fundamental, authorial norms, institutions, and processes of Canadian constitutionalism. Thus, as regards the justification of legal authority, there is a great need within the project of Indigenous law revitalization to discern and clarify Indigenous models of constitutionalism.

In this article, we sketch two such models: modern constitutionalism grounded in constituent power, and rooted constitutionalism grounded in sacred norms. For each model of Indigenous constitutionalism, we inquire into (a) the account of political community that informs the model of constitutionalism; (b) the animating features of the model; and (c) the conception of internal colonial harm it imagines and to which it responds. For scoping reasons, we constrain ourselves to the Canadian context, but the argument has broader application.