Resurrecting the peace: Separate justice and the invention of legal tradition in the Kahnawake Mohawk Nation.

Abstract

The intensification of Canadian amerindian self-determination movements, combined with the recent publication of a series of government reports detailing the mistreatment of amerindians in the Canadian criminal legal system, has placed the creation of separate, amerindian criminal legal systems at the centre of many self-determination campaigns. As alternatives to involvement in the Canadian legal system, many of these proposed alternative structures purport to embody a return to traditional modes of dispute resolution which are offered as both rationale and blueprint for their modern counterparts. Focusing upon proposals for a separate, traditional legal system offered by two groups within the Kahnawake Mohawk Nation of Quebec, the dissertation juxtaposes these proposals with the traditions of dispute resolution extant in the period of initial contact between Iroquois and European. The early traditional lifestyle of the Kahnawake Mohawks is examined, as is the chronicle of contact and acculturation which eroded their original traditional structures. Replete with gaps, the documented history and "legal traditions" of these Mohawks are revealed to differ significantly from those histories postulated by the competing factions, each of which adopts a history which reinforces both its own position on "legal traditions" and in the proposed "post-internal colonial" context. To the degree that these histories and the "traditions" they legitimate and empower are consciously manufactured, their legitmacy in the eyes of Kahnawake people and the Canadian state is diminished. Concentrating upon what appears to be a consciously manufactured, rather than genuine, link between the "old" and "new" traditions, the proposed traditional legal systems are examined through Hobsbawm's theory of the invention of tradition. This examination leads to the conclusion that, while these "traditional systems" and their supporting histories do contain some invented elements and may thus be criticised as invented rather than genuine, such invention need not constitute a fatal compromise to the integrity of the modern traditional legal form nor to the self-determination aspirations of their proponents