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Law and Indigenous Religion: Theorizing a Complex Relationship
(2022-12-14) Lewis, Kristen Elizabeth; Berger, Benjamin L.
This thesis asks what preconditions are necessary to think the relation between law and Indigenous religion without marginalizing perspectives, such as those germane to Indigenous religion, that fall outside law’s frame (often figured, erroneously, as ‘objective’ and ‘neutral’). The research grounds itself in the only Supreme Court of Canada case that, to date, has involved Indigenous religious freedoms and s. 2(a) of the Canadian Charter of Rights and Freedoms (Ktunaxa Nation v British Columbia 2017 SCC) and in the very few lower court decisions that have followed in its not-unproblematic wake. Inspired by several currents of both Indigenous thought and non-Indigenous critical-theoretical work, I advance an approach that imagines law and the stories it tells as deeply entangled, inevitably, with land. Applying this framework to the context of Canadian constitutional law’s encounters with Indigenous religion, I argue that for law to understand what is at stake in Indigenous religious freedoms claims, it must transcend its habit of seeing the world in ways that perpetuate a division between objects and beliefs. Law might thereby open to the perspective, prevalent across Indigenous worldviews, that selves and world are not as separable as Canadian constitutional law’s current religious freedoms framework suggests.