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Mapping the Legal Consciousness of First Nations Voters: Understanding Voting Rights Mobilization

Mapping the Legal Consciousness of First Nations Voters

The framework for this paper has sought to establish that the legal consciousness of First Nations voters is pivotal to understanding electoral participation in Canada's First Nations communities. Electoral participation is a question of exercising rights mobilization. Answering the question, 'What does voting mean to individual First Nations voters?' is pivotal, for rights mobilization is a function of what those rights mean to those individuals who hold them. How then should the study of the legal consciousness of First Nations voters be approached?

The approach taken below is modeled on a path-breaking book, The Common Place of Law: Stories from Everyday Life, by Patricia Ewick and Susan Silbey. Ewick and Silbey describe the legal consciousness of ordinary residents of New Jersey.Footnote 32 Based on detailed survey interviews of 430 persons, they construct three different stories about legality they found encapsulated in the views of law among those persons, and how those views affected their mobilization of legal rights and other resources in their society. These stories are in effect ideal types or forms of legal consciousness or ways to participate in or experience legality. They provide a map for understanding the legal consciousness of the residents of New Jersey, a guide that helps us better understand when those people – the legal subjects – turn to the courts, when they choose to exercise their legal rights or not, and so on. Of course, Canada's First Nations communities constitute different legal subjects – different terrain – and therefore a very different legal consciousness map is needed.

Using an approach similar to Ewick and Silbey, I propose to sketch a map of the legal consciousness of First Nations voters. Unlike the impressive mapping by Ewick and Silbey, which is based on extensive survey fieldwork, my mapping is largely conjecture, shaped by the brief history of First Nations voting rights reviewed above. It leaves open the possibility of undertaking extensive fieldwork involving survey interviews which would validate or refine this map. The purpose of the map is to better understand the terrain of the First Nations voter.

I have emphasized how legal consciousness is a reflection of beliefs about legal rights and how those beliefs effect mobilization. The tie-in to voting is that it is the exercise of a legal right. The map I offer involves categorizing three types or forms in which the right to vote might be envisioned by a member of a First Nations community. Each form of legal consciousness invokes cultural tropes, schemas and resources that position legal status and the individual in relation to it. The purpose of demarcating these types of identifies is that voting rights mobilization for Canada's aboriginal peoples, within a legal consciousness framework, can be understood as an expression of what those rights mean to them. It provides a road map for the different ways in which First Nations voters might answer fundamental questions of legal consciousness: How do individual First Nations voters view the legality of the rights mobilization involved in voting? What sort of cultural meanings for them are bound up in voting? Does this vary according to what the vote is for? What sort of identity must be assumed in order to mobilize voting rights? The three corresponding forms of legal consciousness are more than mere reflections of the historical legacy of voting rights among First Nations peoples: they identify the different symbolic legal meanings of voting for individuals from these communities and why they might exercise their right to vote or not.

Footnote 32 Ewick and Silbey, The Common Place of Law: Stories from Everyday Life, ch. 3.