A fuzzy, rotting casserole in the back of the fridge, no matter how you dress it up, or add to it—even with the most well-intentioned ingredients—is still a fuzzy, rotting casserole. Erdrich’s metaphor for Aboriginal law is apt in many ways. The leading cases in the field are long and often contain odd reasoning and conspicuous silences. One explanation for this is that Aboriginal law is a complex and developing field of law. Another reason is that these contemporary cases are an awkward attempt to build legitimate case law from a base that is essentially corrupt and fragile. Where does the rot come from exactly? Although many Aboriginal law practitioners and judges are interested in the field as a way to chip away at Canadian colonialism, the case law has been largely silent on Canada’s colonial past and present. We are left with awkward silences and big questions: How did British sovereignty occur? How is it legitimate? Why did Aboriginal people “live in organized societies” before European contact, but were not sovereigns nations themselves? Without directly addressing questions like these, Canadian law remains detached from reality and largely illegitimate.
Throughout the book, Erdrich juxtaposes Canadian law with Aboriginal legal traditions, demonstrating the need for law to be an extension of the social, cultural, natural and spiritual world. The one great tragedy of the story occurs because of a jurisdictional mess, stemming from out-of-touch Canadian law: Joe’s mother’s rape cannot be prosecuted because she does not know where it occurred on the reservation and thus which legal system the crime falls under. Another great tragedy occurs as a result of Joe’s failure to listen to his own people’s legal tradition, which appears to be more connected to the world around it, leading to more just results. When Joe pays heed to the stories of the round house’s history, and listens to guidance from natural and spiritual forces, he uncovers information – like the gas can—that can lead to justice for his mother. However, when he ignores these stories and spirits—like Bugger’s dream—, he makes the fateful decision to murder his mother’s assailant, which leads to the death of his best friend and causes him great pain for the rest of his life.
Erdrich appears to be advocating, not necessarily for a return to traditional law, but the development of a body of law that is simply in touch with reality and thus legitimate. For Canadian law to move in that direction, it needs to transform dramatically. Confronting colonialism head on, and making more space for aboriginal legal traditions and autonomy, is a good place to start.
Leah Gardener is a student in Osgoode’s Intensive Program in Aboriginal Lands, Resources & Government.