At the very beginning of her career, Sally Engle Merry focused on the legal relations of nonlegally trained people—often members of the working class, marginalized or racialized groups. She explored the disjuncture between those people's understandings of disputing and the concepts, language, and procedural distinctions of legal professionals (Merry 1979, 1990, and more). That work brought her into contact with a number of scholars working on what Merry (1988) would call “new legal pluralism”: taking legal pluralism beyond the colonial and postcolonial contexts in which it had predominantly been deployed (“old legal pluralism”) and portraying it as a characteristic of virtually all societies and all law.

It is the thesis of this paper that the legal principles within pre-contact Aboriginal legal orders affecting individual and collective rights can be articulated and extended to apply to current-day sexual orientation and transgender issues in Aboriginal communities. The conceptual framework for the paper is that (1) pre-contact Aboriginal societies generally accepted sexual orientation and transgenderism diversity, (2) a consequence of colonialism has been widespread intolerance of sexual diversity, (3) recent litigation and political action have raised the profile of sexual orientation and transgender issues within Aboriginal societies, and (4) Aboriginal people can draw on pre-contact legal orders and employ a critical pragmatic approach to build non-oppressive self-governing nations. The paper argues further that the conflict between collective and individual rights is essentially a false dichotomy. The challenge is to figure out how Aboriginal legal systems can coexist with the western legal system in a way that maintains the integrity of each culture and that protects the rights of Aboriginal gay men, lesbians, and the transgendered.

The courts' continuing treatment of aboriginal oral histories as cultural artefacts is appallingly ethnocentric despite recommendations to consider the perspectives of aboriginal peoples and adapt the law of evidence. In this paper, I describe how Chief Justice McEachern of the British Columbia Supreme Court responded when a Gitksan witness, Gwaans, presented her adaawk as evidence of Gitksan land ownership and social organization. The Court was not able to hear or accept the adaawk as presented - a legal and political institution rather than a simple cultural artefact or chronological history record. The forms of expression, symbolism, and inter-connections between the worlds of spirits, humans, and animals proved to be beyond the grasp of the trial judge. Will the adaawk be treated any differently in future litigation? This paper addresses a number of concerns such as having the judiciary (1) apply a reductionist approach to the adaawk, and (2) evaluate the adaawk according to the rules of court instead of those inherent in the adaawk.

Nationhood can be defined either positively, which will lead to a civic model of citizenship, or negatively, from which an ethnic model of citizenship will ensue. Each approach has a direct, formative effect on a nation's political power and on its national and international relations. The ethnic model of defining First Nations, advanced by colonial governments via legislation and modern-day treaties and adopted by First Nations, diffuses First Nations political power and distorts First Nations national issues by reframing them as primarily social and economic disadvantages. Conversely, an inclusive civic model of nationhood will enable First Nations to rebuild and maintain their political strength and integrity by moving far beyond establishing their boundaries and internal identity on blood and ethnicity. Current-day political and legal discourse on self-government, aboriginal rights and title, and treaties is largely founded on western constructs of nationhood that arise from European history and cultures. First Nations constructs of nationhood remain unarticulated or obscured, or are discarded at the self-government and treaty negotiation tables to the detriment of First Nations. The consequence of this approach is to further entrench Canadian structural power imbalances rather than create positive political, economic, and social change for First Nations. A different approach is necessary. First Nations and western constructs of nationhood and citizenship must be critically examined and compared, and First Nations must begin rebuilding inclusive, viable, civic societies based on nations, not on ineffective Indian Act bands.