John Borrows and Michael Coyle, editors. The Right Relationship: Reimagining the Implementation of Historical Treaties. University of Toronto Press, 2017. 428 pp. ISBN 978-1442630215
A recent pattern in scholarly books focused on Indigenous law and policy is for the author (or authors) to take a side in a key debate that largely structures the field. On the one hand, powerful arguments are regularly made that decolonization and the power of self-determination for Indigenous communities must be pursued primarily by fully decoupling from western legal systems and norms. On the other side, one finds representatives of a more legal realist and reformist tradition, who point to the flexibility of legal systems and stress the possibility for change to be effected from within as well as outside of those norms and structures. To his credit, throughout his career Anishinaabe legal scholar John Borrows has managed to avoid the limitations of this binary. Instead, his work has continually highlighted the ways that the legal nomos (past and present) of First Nations peoples and the constitutional structure of Canada have the potential to become mutually transformative. In The Right Relationship, Borrows and co-editor University of Western Ontario law professor Michael Coyle have brought together a range of essays that embody that same spirit of creative legal thinking. Focusing specifically on the ongoing importance of treaty relationships between First Nations tribes and the national and regional governments of Canada, the book's contributors frankly, realistically, and sometimes hopefully assess the potential for treaty law to become a central tool for upending the repressive apparatus of settler colonialism in the modern state.
The Right Relationship is divided into three sections, the first of which highlights the ways that a historically-informed perspective on treaty negotiations and colonial history, dating back to the Eighteenth Century, should significantly alter the way that treaty relations today are understood and pursued. Borrows's essay on "Canada's Colonial Constitution" draws attention to the ways that the constitutional order and narratives of the Canadian state have mis-interpreted treaty history and forced First Nations communities into primary political relationships with provincial governments, as opposed to with the central government in Ottawa. This shoehorning of tribal peoples into the federalist structures of modern Canada has buttressed colonialism by rendering it exceptionally difficult for tribal people to navigate overlapping jurisdictions and to assert the kind of nation-to-nation relationships clearly intended in the original moment of treaty-making. Michael Coyle's contribution, "As Long as the Sun Sets," considers problems arising in the ongoing interpretation of treaty law in the Canadian Courts, an inevitable process owing to constantly changing contexts in which treaty provisions much be understood and enforced. Similar to Borrows, Coyle argues that a historical perspective should inform contemporary practice. In particular, he suggests that the historical record clearly shows that all parties to colonial-era treaty making understood themselves not to be engaged into the creation of temporally bounded executable contracts, but rather in the creation of on-going diplomatic structures to allow for negotiated co-existence and mutual support—the kind of "right relationship" to which the book title alludes. A key problem, Coyle notes, is that the Canadian courts have employed a more static contractual-model in interpreting historical treaties, which is both a detriment to tribal communities and a source of ongoing political instability in the Canadian state. The third essay in this opening section, Kent McNeil's "Indigenous Rights Litigation, Legal History, and the Role of Experts," highlights one of the many challenges standing in the way of Coyle's and Borrows's more copious understanding of Canada's legal heritage. Looking at actual case law and trial records, McNeil documents the ways that the court system relies in problematic ways on the testimony of expert witnesses (professional historians) with flawed or limited understandings of the legal issues at hand, allowing those experts to comment well outside of their actual expertise while also invalidating and silencing the voices of Indigenous litigants. The essay's specific examples of testimony by University of Cambridge historian Paul McHugh are persuasive accounts of the ways that bias is structurally embedded in the settler-colonial system. In providing that perspective, McNeil offers an important corrective for any reader who comes away from the first two essays with an overly optimistic view of the possibilities for changing the ways that treaties are interpreted by the Canadian state. The problems of "relationship" are clearly at least as much political as they are strictly jurisprudential.
This emphasis on the interplay of historical, legal, and political discourses and practices I have been tracing continues to emerge throughout the collection, both in the remaining essays in Part I (by Julie Jai, Francesca Allodi-Ross, and Sara Graben and Matthew Mehaffey) and in the final two sections. In Part II, "The Role of Indigenous Legal Orders," contributors Mark D. Walters, Aaron Mills, Heidi Kiiwetinepinesiik Stark, and Sarah Morales all highlight the vital need for Indigenous perspectives to be examined and understood in order to actualize the kinds of treaty relationships that might be able to achieve a true "reconciliation" that goes beyond the current, often cynical papering over of ongoing settler colonialism. A major theme in this section is the need to complicate western legal understandings of "rights" as a form of individual property, complicating that notion through Indigenous ideas like bimaadiziwin (the Anishinaabe concept of a "good life" predicated on harmony between individuals, communities, and the larger world of natural "relations") or ezhi-ogimaawaadizid (the Anishinaabe imperative for those in positions of leadership to act in ways that recognize those for whom they are responsible). In Part III "'Fitting the Forum to the Fuss,'" Jacinta Ruru, Jean Leclair, Sara Seck, and Shin Imai focus their critical attention on the sites of interpretation and implementation of treaty law. Comparative perspectives are applied here to highlight the value of looking outside of current norms to find positive alternatives. Ruru, for example, considers the establishment in 2014 of a new forum for the adjudication of treaty remedies in New Zealand as a useful model for consideration in other contexts. Seck's essay explores some of the ways that norms from international law might be usefully leveraged in domestic legal contexts. But always running throughout the collection are the kinds of cautionary notes represented in LeClair's essay on "The Potentialities and Limits of Adjudication," insisting that we not lose sight of the fact that all legal interpretation takes place within the context of structures of power. LeClair is able to show, by reference to only a handful of recently-decided cases, that a clear-eyed and flexible strategy in litigation must be an essential part of the ongoing work of decolonization.
While the overview I have offered here might seem to suggest that The Right Relationship is a book that will only be of interest to legal scholars or individuals working in public policy, nothing could be further from the truth. While the contributors are all legal experts, the essays are written to be accessible to general readers. Each chapter opens with a helpful overview of the arguments being made, and the historical and legal context of each argument is presented fully within individual pieces. The discussions of Indigenous understandings of treaties and treaty making and the intricacies of tribal-centric political thought (particularly Anishinaabe thought) are also exceptionally rich. Take as whole, then, the arguments presented in this volume are both extremely smart and balanced. They combine a realistic sense of the challenges of decolonization with a deep understanding of the ongoing vitality of Indigenous law ways. In this respect, Borrows and Coyle have gathered together a group of voices that represent precisely the kind of well-informed, tough-minded optimism needed to underpin effective activism and advocacy.
David J Carlson, California State University San Bernardino