1. Introduction
We must learn law from our ancestors.Footnote 1 Plants, insects, birds, and animals have much to teach us. We are their kin, and they are our elders.Footnote 2 We would not exist without them. They came first and they continue to sustain us. Our evolutionary lineage and bio-physical dependence point to this fact.Footnote 3
We sever ourselves from what sustains us if we separate the law from the air, water, rocks, plants, insects, birds, animals, and other such kin. Our legal lives depend on respectfully nurturing that which nurtures us, which includes our bio-physical environments. The living world provides the very conditions from which all other activities flow. We cannot be reconciled with others unless we first reconcile ourselves with the living earth.Footnote 4 A key question is: How can we better incorporate lessons from the more-than-human world into Anishinaabe law and other legal systems?
This essay considers conserving and upholding Anishinaabe law as it relates to the more-than-human world. It suggests that we must continually renew our broadest legal commitments to protect and preserve what sustains us. Protecting clans and the animals from which they derive is close to the heart of Anishinaabe law (ode’naakonige). This law is embodied through Anishinaabe treaties with our evolutionary progenitors, our clan relatives.Footnote 5 These treaties with the more-than-human world were incorporated into treaties with other First Nations. From an Anishinaabe perspective these obligations were, in turn, eventually imported into treaties with the Crown. Anishinaabe treaties with the more-than-human world continue to inform how Anishinaabe people practice constitutional law through consultation protocols, legislation, and participation in court proceedings.
In making these arguments, I first examine how Canadian law can recognize and affirm Anishinaabe laws—even when they are different from common law and civil law traditions. Second, I explore how Anishinaabe treaties with the more-than-human world were incorporated into treaties with the Haudenosaunee, and later with the British and Canadian Crown. Third, I discuss how Anishinaabe treaties with the more-than-human world inform their constitutions, consultation protocols, and legislation. This leads to a discussion of the challenges Anishinaabe people face within their own societies in sustaining their law. Thus, I argue that while formal legal instruments may be helpful in advancing Anishinaabe law, their vitality is best regenerated, revitalized, and enhanced by practicing law in ways that are ‘grounded’ with the more-than-human world itself. In so concluding, I suggest that the written word and top-down legal institutions—while often necessary in today’s legal landscape—should never replace or become disconnected from law’s heart, which flows through direct experience with the more-than-human world. Anishinaabe law cannot merely live through abstract language and incorporeal institutions; it must also be experienced in fields, forests, rivers, lakes, homes, villages, and cities. To remain a vital force, Anishinaabe law must be continually reconnected with living environments to renew and sustain its participatory persuasiveness and physical power.
2. Indigenous Difference and the Rule of Law
I am nigig indoodem, from the Otter clan of the Anishinaabe. Anishinaabe peoples live around the North American Great Lakes, woodlands, and prairies.Footnote 6 I am a citizen of the Chippewa of the Nawash First Nation on the Saugeen Peninsula, in what is now Ontario, Canada.Footnote 7 Our home is called Neyaashiinigmiing, or ‘portage point’, and it lies between Lake Huron and Georgian Bay. I grew up on a farm two hours away from the reserve, in traditional Otter clan territory.Footnote 8 Our legal order flows from a creation story where animals counselled together to bring dirt from the depths of a flooded world.Footnote 9 A giant otter participated in this council. She dove with other animals who sought substance for further growth. The muskrat, the smallest diver, eventually brought a paw-full of earth from deep below the surface. They celebrated her efforts by seeding this soil as they danced along the back of a giant turtle.Footnote 10 In the process, the animals combined elements necessary for life’s subsequent generation. It is said that when the giant otter died, the first person of my clan emerged from her carcass.Footnote 11 Long after the council’s actions spread life across Turtle Island’s back, other clans formed in similar ways. Humans are the earth’s literal offspring.Footnote 12 We have much to learn from our constitutional genesis.
Canada’s Constitution includes Indigenous peoples’ laws. This has been constitutionally recognized and affirmed through pre-existing customs,Footnote 13 treaties,Footnote 14 and legislation.Footnote 15 International law,Footnote 16 and the common law,Footnote 17 can also reinforce Indigenous peoples’ law.Footnote 18 Indigenous peoples’ laws also have their own sources, which differ from other Canadian laws.Footnote 19 Fortunately, the Supreme Court of Canada has written that Indigenous law can be protected within Canada’s constitutional framework in order to preserve Indigenous difference.Footnote 20
Indigenous legal traditions can differ from other Canadian laws in at least two ways. First, the very conception of law itself can differ for Indigenous peoples; and second, the substantive content of Indigenous peoples’ law can also be different.Footnote 21 Law is found in all societies, but its meaning and practice vary through time and place.Footnote 22 In making these points, I want to be careful not to inappropriately separate Indigenous law from the common law and civil law traditions, because at some points, all of these systems intersect, overlap, and run parallel to one another.Footnote 23 They exist in relationship to one another.Footnote 24 While these relations can sometimes be harmonized, at other times they can be contradictory, conflicting, and inconsistent, and can work at cross purposes with one another.Footnote 25 Despite these complexities, my two points regarding Indigenous rule-of-law traditions remain, and they deserve emphasis: Both the conception and content of Indigenous law can be different from common law and civil law systems.
I will use Anishinaabe examples in examining conceptions of Indigenous law, since I am Anishinaabe and I want to offer specific illustrations to avoid overly-generalized, pan-Indigenous portrayals of law.Footnote 26 Anishinaabe law is most often expressed as a verb, using words like inaakonige,Footnote 27 izhitwaawe,Footnote 28 ginwezhiwe,Footnote 29 dibaakonige,Footnote 30 onaabanjige,Footnote 31 etc.Footnote 32 In a legal context these words variously describe obligatory actions in relation to other measures, indicia, or criteria.Footnote 33 Thus, for Anishinaabe people, law is a dutiful activity, and something that individuals and communities ‘do’. ‘Lawing’ therefore involves conjugation in addition to categorization, requiring ongoing transformative application through pronouns, locations, tenses, moods, and other modifiers. Most Indigenous languages in Canada are also polysynthetic and verb-based.Footnote 34 If we thought of law itself as a verb—something we all ‘do’, as an activity we can all conjugate—then perhaps we would better understand opportunities to enhance the rule of law’s deeply participatory elements.
Also, the content of Anishinaabe law can be different from other legal traditions. The living Earth is an important source of Anishinaabe law, where by ‘the Earth’ I mean to include ‘all our relations’, nindinawemaganidook: the air, water, fire, rocks, plants, insects, fish, birds, animals, and other more-than-human forces which animate the world.Footnote 35 Anishinaabe language functions through animacy, and sees Earth as living, as a relative with whom we are in a socio-legal relationship.Footnote 36 Thus, linguistic experience generates resources for deliberating about how we might better learn from and interact with our more-than-human kin.Footnote 37 Furthermore, law is learned through direct experience on the land, and we subsequently interpret this experience through stories, teachings, discussions, and ceremonies, and by counselling together in councils, clans, and communities. For Anishinaabe people, the Earth’s primeval forces are our first law professors, and we strive to understand how we are related to them through clans and associated teachings. The common law and civil law traditions do not generally regard more-than-human beings as possessing agency, obligations, privileges, and powers in their legal systems. This is a key difference: Anishinaabe rule-of-law traditions often regard more-than-human natures as possessing inherent liberties, duties, entitlements, restraints, and freedoms, all of which entail duties of respect, responsibility, reciprocity, and renewal.Footnote 38
In stressing Anishinaabe legal difference, Aaron Mills describes Anishinaabe law as a lifeworld that is rooted in kinship systems that “take the form of treaty (intentionally deepened, always-already-interdependent relationships) as opposed to contract (an international, exchange-centred connection between independent autonomies).”Footnote 39 These treaty relationships require us to physically take actions to repeatedly renew the earth’s life, health, and sustainability, thereby also renewing our own lives.Footnote 40 In this light, Anishinaabe law is realized through experiential, contextual, and embodied activities, which can be internalized, transmitted, adapted, renewed, and sustained through actions.Footnote 41 These actions enhance bimaadiziwin—“the principle that everything is alive and sacred.”Footnote 42 This view of law corresponds with James Boyd White’s observation about legal traditions more generally: “[Law] is not a set of rules at all, but a form of life. It is a process by which the old is made new, over and over again.”Footnote 43
Thus, the distinct conceptions of Anishinaabe people’s law, and its content, should not cause us to lose sight of its eclectic, dynamic character.Footnote 44 Anishinaabe law is a living tradition.Footnote 45 It should not be judged primarily through historically-based judgments about what was “integral to their distinctive cultures prior to the arrival of Europeans.”Footnote 46 As noted, Anishinaabe law has many historic and contemporary sources, and thus can also be expressed in positivistic or declarative ways through written constitutions, legislation, regulations, and court decisions.Footnote 47 Contemporary Anishinaabe law can also at times manifest itself through common law categories like contracts,Footnote 48 torts,Footnote 49 and property,Footnote 50 and public law categories such as administrative lawFootnote 51 and criminal law.Footnote 52 Like its linguistic system, Anishinaabe law can be deeply polysynthetic, even as it has its own distinctive ways of expressing itself in the world.Footnote 53
Anishinaabe people’s rule of law, and Canada’s law more generally, would be strengthened by further recognizing and affirming Indigenous difference in our understandings of law itself and in our relationships with the more-than-human world.Footnote 54 We must decolonize the rule of law.Footnote 55 We must recognize and affirm law’s existence beyond common law and civil contexts. Law is not merely the preserve of specialists who sit in legislatures, preside over courts, or are called to the bar.Footnote 56 Law is both a doctrinal and an experiential phenomenon that involves proximate actions in light of a society’s more general teachings, observations, principles, conditions, necessities, customs, and obligations.Footnote 57 The work ahead involves revitalizing all legal traditions through expanding what we consider to be law in Canada, and thereby simultaneously extending who and what is entitled to practice law and receive its protection.
2.1. Anishinaabe Law and the Supreme Court of Canada: The Restoule Case
The Supreme Court of Canada recognized and affirmed Indigenous difference related to both the conception and content of Anishinaabe law by incorporating this law in its treaty jurisprudence. In Ontario (Attorney General) v. Restoule, the Supreme Court invoked Anishinaabe processes and principles to instruct the parties to rekindle a constitutionally protected treaty relationship.Footnote 58 In holding that Ontario and Canada must fulfill their treaty obligations to their Anishinaabe partners, the Supreme Court wrote: “The Robinson Treaties are not merely transactional instruments about the exchange of money for a tract of land. They are living agreements embodying a relationship nurtured over many years before 1850 and requiring ongoing renewal into the future.”Footnote 59
In Restoule, the Supreme Court of Canada held that the Crown breached an 1850 treaty duty to increase annuity payments to the Anishinaabe under the Robinson Huron and Robinson Superior Treaties. This conclusion flowed from the Court’s recognition that the parties’ common intention at the treaties’ formation was to share future revenues received from resource development.Footnote 60 Thus, the annuities owing to the Anishinaabe would be increased from time to time to reflect expanding development through the treaty territory. In finding that the Crown owed an obligation to act “diligently, honourably, liberally, and justly” when annuity increases were warranted, the Court applied Anishinaabe law.Footnote 61 Specifically, it implemented “Anishinaabe’s perspectives reflected in the principles of respect, responsibility, reciprocity, and renewal,” thereby showing “reciprocity by making concrete the Anishinaabe’s expectation that a ‘gift’ would attract a reciprocal ‘gift’ of commensurate value.”Footnote 62
In the Restoule decision, the Supreme Court sees Anishinaabe law in relational, applied terms. Treaty implementation is an embodied activity that is capable of being renewed and perpetuated, both in the present and into the future. Thus, to diligently implement the Robinson Treaties in the present day, the courts counselled the parties to return to the “deliberative and consensus-based processes” that “reflect Anishinaabe perspectives and practices on the means by which consensus would be achieved,” which occurs around council fires.Footnote 63 In fact, the court directed that “[i]t is time for the parties to return to the council fire and rekindle the perpetual relationship that the Robinson Treaties envision.”Footnote 64
The process of renewing agreements around council fires builds on the “close relationship between the British and the Anishinaabe of the upper Great Lakes that existed long before 1850.”Footnote 65 This relationship was guided by the Covenant Chain alliance through which the “British and the Anishinaabe maintained this connection in part through annual gift-giving around sacred ‘council fires’ as expressions of mutual generosity and goodwill.”Footnote 66 By upholding these procedures, the Supreme Court empowered Anishinaabe content-based perspectives on law, which regards fire as a more-than-human participant in Anishinaabe treaty relationships.Footnote 67
The recognition of the unique conception and content of Anishinaabe law is also found in the Supreme Court’s supporting statement that:
The Anishinaabe of the upper Great Lakes have a longstanding system of law and governance that informed, and continues to inform, their perspectives on the Robinson Treaties. Two key organizing principles of Anishinaabe law and governance are pimaatiziwin, the principle that everything is alive and sacred, and gizhewaadiziwin, the way of the Creator, which encompasses sacred laws of creation.Footnote 68
Here one sees the practice of Anishinaabe law as ongoing (“continues to”) and the content of law as recognizing the more-than-human world (“everything is alive and sacred”).
The Court’s reference to pimaatiziwin as a key element of Anishinaabe law draws the more-than-human world into treaty-based obligations and decision-making. Pimaatiziwin (bimaadiziwin) can mean ‘I am life coming towards you’ (bi-omaa-diz).Footnote 69 Just as children receive nourishment from their mothers in the womb,Footnote 70 humans likewise receive nourishment in the centre of our beings (odiz) from our mother the earth.Footnote 71 In this light, bimaadiziwin references more-than-human sources of law, as Basil Johnston observes:
From their observations, our ancestors saw a kinship between plants, insects, birds, animals, fish and human beings, a kinship of dependence; humans depending on animals and birds and insects; animals depending on insects and plants; insects depending on plants; plants depending only on the earth, sun, and rain.Footnote 72
Bimaadiziwin, understood as human and more-than-human interdependence, involves what the Supreme Court references as gizhewaadiziwin, which means ‘living with loving kindness’.Footnote 73 While the Court referred to gizhewaadiziwin as “the way of the Creator, which encompasses sacred laws of creation,”Footnote 74 Johnston understands these laws as sustaining ongoing activities which involve human and more-than-human beings in living in harmony with one another.Footnote 75 Anishinaabe treaties are meant to sustain and synchronize activities in the larger world around us. In his book Honour Earth Mother, Johnston writes:
Insects, birds, and animals do their part in sustaining the act of creation. In the bosom of mother earth they bury seeds, which become trees, shrubs, plants and flowers. They, and we, take part in creation by re-creating.… We are the earth, as are the eagles, wolves, ants and whitefish.Footnote 76
Taking these terms together as key principles of Anishinaabe law, the Supreme Court’s reference to bimaadiziwin and gizhewaadiziwin shows how returning to the council fire to implement treaties involves active participation of humans and more-than-humans in finding harmony with one another. As the Supreme Court cited in the Restoule SCC judgment: “[T]he Treaties were not a contract and were not transactional; they were the means by which the Anishinaabe would continue to live in harmony with the newcomers and maintain relationships in unforeseeable and evolving circumstances.”Footnote 77
The need for harmony in the Anishinaabe creation of treaty relationships with newcomers and the more-than-human world is reinforced by the trial decision in the Restoule case. Like the Supreme Court of Canada, the Trial Judge found that Anishinaabe law “informed and influenced” the Robinson Treaties’ creation.Footnote 78 Justice Hennessy wrote that one of the reasons these treaties developed was because Anishinaabe people were obliged to uphold correlative obligations that activated both their nation’s agency and that of the more-than-human world.Footnote 79
In the Anishinaabe worldview, all aspects of the natural world have the breath of life: the rocks, water, fire, and wind; the sun, stars, moon, and Earth. And man was the last form of life to be placed on the Earth. The Anishinaabe understand themselves as merely one part of creation, deeply connected to and interdependent on the larger collectivity of other beings.Footnote 80
In drawing out the legal implications of these points, Justice Hennessy further wrote: “To navigate the complex web of creation, the Anishinaabe developed laws that ensured they were relating to the land, animals, flora, fauna, manidoog (spirits), and others in respectful ways that account for mutual responsibility to one another.”Footnote 81 It is clear from the trial decision that Anishinaabe law was key in forming the Robinson Treaties with the Crown, because Anishinaabe law already contained reciprocal treaty-like agreements with the more-than-human world that they sought to uphold in their relationship with the newcomers.Footnote 82
The Supreme Court built on Justice Hennessy’s findings to hold that, “[f]rom the Anishinaabe perspective, the central goal of the treaty was to renew their relationship with the Crown.”Footnote 83 This recognition opens the door to seeing Anishinaabe law as procedurally and substantively relevant to determining the Robinson Treaties’ meaning in the present and future. As the Supreme Court wrote: “What the Treaty promises is … an ‘ongoing relationship’ with procedural and substantive aspects. The Crown cannot fulfill its duty … without engaging its Treaty partner.”Footnote 84 Thus, Anishinaabe conceptions of law enter Canada’s rule-of-law commitments by recognizing activities such as deliberation, consensus building, and ongoing negotiation around council fires as procedurally part of Canadian law. Likewise, Anishinaabe law’s content also enters Canada’s rule of law as Anishinaabe people involve the more-than-human world in their deliberations, negotiations, and consensus building.
2.2. Anishinaabe Treaties with the More-than-Human World
Anishinaabe rule-of-law relations to the more-than-human world (through treaties) extends beyond the air, water, rocks, plants, insects, birds, and animals, etc. to other social and political bodies, such as the Haudenosaunee Confederacy and the Canadian state.Footnote 85
2.2.a) Treaties with More-than-Humans
Anishinaabe Elder Basil Johnston taught that Anishinaabe people’s first treaties were with the natural world, including the plants, animals, rocks, rivers, fish, deer, moose, caribou, and other more-than-human beings.Footnote 86 Stories about beavers, wild rice, and the Hoof Nation communicate these agreements.Footnote 87 Yet human interpolation and cultural difference must be grappled with when considering these relationships as treaties. Animals and plants do not voice opinions in human terms, and their behaviour can be exceptionally ambiguous.Footnote 88 Since law does not interpret itself, we must understand how Anishinaabe peoples construe more-than-human legal relations in kin-based terms.
In interpreting Anishinaabe laws we cannot simply view Anishinaabe/more-than-human treaties through contractual or international law lenses, because Anishinaabe law does not flow from common-law-derived norms.Footnote 89 Anishinaabe legal relations with plants and animals are sui generis when compared to other legal systems, being unique and of their own kind.Footnote 90 These relations are based on duties, obligations, covenants, and conceptions of status that inhere in gift-reciprocity and kin-based exchanges, inferred from the words, actions, and centuries-old course of dealings between Anishinaabe and the more-than-human world. As the Ontario Superior Court observed in the Restoule case:
In the Anishinaabe worldview, there was no concept of engaging interpersonally with non-kin: one was either a relative or a stranger. If no kin relationship existed, a fictive kin relationship had to be created to initiate a relationship. From the Anishinaabe perspective, fictive kin relationships were equivalent to and entailed the same obligations as real kin relationships.Footnote 91
In regarding more-than-humans as kin (real and fictive), “[t]he Anishinaabe describe wealth in the land in the form of fish and game, spiritual sustenance, and emotional and physical well-being” through “aadizookaanag (sacred stories)” which “carried responsibilities” to live in harmony with these relations.Footnote 92 For instance, Anishinaabe law holds that:
[W]herever a potential right exists, a correlative obligation can usually be found based on the individual’s relationship with the other orders of the world. These … stewardship-like concepts (bimeekumaugaewin) … apply to the Anishinaabe’s engagement with the land, plants, and other beings.Footnote 93
This gives rise to reciprocal obligations of care because:
From the Anishinaabe perspective, all of creation sustains, teaches, and heals the humans, the animals, and the plants in a web of interdependence. In return, the Anishinaabe accept responsibility for the land to ensure that it, and the rest of creation, can thrive. All of these features of the Anishinaabe perspective informed and influenced the [Anishinaabe treaties].Footnote 94
These treaties were formed first with the more-than-human world, and later with the Crown. In this light, Anishinaabe treaty obligations are both implied from the context of their relationships, and from their words and actions towards their more-than-human kin.
Thus, we cannot understand Anishinaabe treaties through a common law lens, even though it might help to remember that role-based “Status” responsibilities were a significant part of the common law before it turned to voluntary “contractual” stipulations as the law of contract developed during the industrial revolution.Footnote 95 Yet Anishinaabe treaties are not simply organized on the basis of status, or the product of contract-style negotiation; they flow from differences related to culture, land-use, governance, and treaties with the more-than-human world.Footnote 96 They are in legal relationships of respect, responsibility, reciprocity, and renewal due to the gift-reciprocity cycle in which they participate.
As noted, Justice Hennessey referenced and applied these understandings in the Restoule case. In discussing interdependencies and mutual responsibilities between Anishinaabe and the more-than-human world, which influenced treaties with the Crown, she wrote:
The Anishinaabe Chiefs and leaders approached the treaty discussions in accordance with their concept of responsibility, which is connected to the concept of interdependence. The Anishinaabe had a responsibility toward their bands, their clans, and their kin, as well as to the land in all of its manifestations—the animals, flora, fauna, and non-human beings with whom the Anishinaabe shared the territory.… Dr. Stark, for example, described the notion of mutual responsibility in the context of the story of The Woman Who Married a Beaver. Footnote 97
Throughout the Restoule case, Anishinaabe treaty stories and teachings were referenced by Elders and expert witnesses like Dr. Stark, who testified before the court.Footnote 98 Their views led Justice Hennessy to observe:
The Anishinaabe Chiefs and leaders came to the Treaty Council with a responsibility to ensure that their people could enjoy continued dependence on the land for their sustenance, their shelter, their medicines, and their spiritual well-being, and, equally, that they could continue to be responsible for that land.Footnote 99
When I was a graduate student, I remember learning about Anishinaabe treaties from Basil Johnston. I would walk to his house further along the shore of our reserve, and there he taught me Anishinaabemowin and told me stories about our responsibilities to the more-than-human world. Each word, story, and lifeform seemed to have an accompanying lesson, and Basil would reference them to describe our mutual obligations. As time unfolded, Basil would look out his window and describe how the seagulls, ants, maple trees, milkweed, foxes, and snakes that we saw were all practicing law. He showed me how they engaged in inaakonige (guided planning and judgment), kinwezhiwe (acting according to long-time expectations), izhitwaawe (acting in a certain direction, way of life, or custom), kaakaage inaakonige (acting according to eternal measures), debine’oziwe (following processes for making a living through work, food, shelter, tools, medicine, and learning), and mitindaadawin (sharing distribution according to their needs).Footnote 100 In discussing these principles, Basil revealed that he knew over 600 stories in Anishinaabemowin. He said these stories broadly taught us how the more-than-human world (nindinawemaganidook) was always available to guide our ‘lawing’ in relational ways. In passing along his wisdom, Basil marvelled at how the reserve’s natural beauty exemplified these lessons; he genuinely enjoyed sharing the Earth’s living insights. He often said that until one can look at a squirrel and see themself as “no greater and no less than her,” they will not understand Anishinaabe laws.Footnote 101
My visits with Basil continued for many years, until he passed away in 2015.Footnote 102 In 1995, when I was a newly-minted law professor at Osgoode Hall Law School, we attended a weekend-long community meeting to discuss Anishinaabe environmental and constitutional law.Footnote 103 This meeting also drew attention to some of the unique concepts and content in relation to Anishinaabe treaties. The Elders clearly spoke about how everyone had a responsibility to learn and apply our laws by referencing how we should perpetually renew our obligations with the plants, fish, animals, and others that surround us.
As I was learning these lifeways from elders and other community members, I began introducing Anishinaabe law into my teaching and writing at law school.Footnote 104 These were pre-tenure days, so I was a still finding my academic voice. Nevertheless, in an early law review article, republished in the first chapter of my first book, I introduced Anishinaabe treaties with the more-than-human world in the following terms:
The Anishinabe attributed some of their society’s problems to the imbalance of the hunting relationship between humans and animals.… In the [case of Crow, Owl, Deer et al. v. Anishinabe], the deer, moose and caribou left the land of the Anishinabe and were captured by the crows. The crows confined them, and when the Anishinabe discovered this they went to battle against the birds. There was a long and bitter battle in which neither side prevailed. During the battle, the deer looked on with seeming indifference as to the outcome. Eventually a truce was called, and the Anishinabe met with the crow and deer in council. The Anishinabe asked: “Why are you so apathetic about our efforts to rescue you from your imprisonment? We have suffered great affliction and hazarded death to save you—all on your behalf. It seems as though you could not care less.” The Chief Deer replied: “You are mistaken if you have imagined that we are here against our wishes. We have chosen to stay with the crows. We are not sad but very happy. The crows have treated us better than you ever did when we shared the same country with you.”
The Anishinabe were astonished and asked the deer how the Nation had offended them. The deer spoke sadly: “You have wasted our flesh; you have despoiled our haunts; you have desecrated our bones; you have dishonoured us and yourselves. Without you we can live—but without us, you cannot live. We can live with you or without you.” The Anishinabe then asked how they should make amends; they said their negligence was not motivated by ill will. The Anishinabe asked: “How shall we restore what we have taken and what you have lost?” The Chief Deer answered, “Honour and respect our lives and our beings, in life and in death. Do not waste our flesh. Preserve fields and forests for our homes. Cease doing what offends our spirits. To show commitment to these things and as a remembrance of the anguish you have brought upon us, always leave the tobacco leaf from where you take us. Gifts are important to build our relationships once again.” The Anishinabe promised to follow the words of the Chief Deer, and the crows released the captured deer.Footnote 105
By drawing attention to Anishinaabe treaties with our more-than-human kin, I hoped to contribute to the resurgence of both Anishinaabe law and Canadian law more generally.Footnote 106 I felt that the rule of law could be strengthened if we recognized that treaties with the more-than-human world were part of Canada’s Constitution. My view is that they became part of the country’s highest law when section 35(1) of the Constitution Act, 1982 recognized and affirmed Anishinaabe/Crown treaties.Footnote 107 These foundational constitutional laws should be regarded as being “supreme over officials of the government as well as private individuals, and thereby preclusive … of arbitrary power” in relation to our more-than-human kin.Footnote 108 Thus, I wrote that the Crow, Owl, and Deer case/story stands for the proposition that:
If the Anishinabek [and Crown] do not honour and respect their promises, relations, and environments, the eventual consequence is that these resources will disappear. When these resources are gone, no matter what they are, the people [and all Canadians] will no longer be able to sustain themselves because, as the ratio of the case states, while the resources [deer] have an existence without us, we have no existence without them.Footnote 109
2.2.b) Treaties with the More-than-Human World and the Anishinaabe and Haudenosaunee
Anishinaabe treaties with the more-than-human world go at least two steps further. First, messages of mutual respect, mutual responsibility, reciprocity, and renewal can be discerned in treaties made among the Anishinaabe and other Indigenous peoples. For example, more-than-human treaty principles are also present in treaties between Anishinaabe and Haudenosaunee peoples. In 1701, the Haudenosaunee and Anishinaabe fashioned a treaty that sought to end a 50-year war.Footnote 110 This ‘Dish with One Spoon’ treaty places the parties in a shared relationship with the living earth.Footnote 111 The image at the heart of this treaty, a purple circle, represents the Earth. All human and more-than-human parties eat from this one bowl—the environment that sustains and nourishes us. There is also a small white rectangular object on the middle of the purple bowl (in the middle of the belt): a spoon, which reminds the parties not to threaten one another with sharpness or aggression as they share. A spoon has blunted edges, unlike a knife or fork. This signifies that, together, we must create peaceful environmental conditions. The purple image at the bowl’s centre can also signify a beaver tail, once again representing the more-than-human world at the agreement’s heart.Footnote 112 Surrounding the bowl and spoon/beaver tail are seven rows of white beads. They communicate the dominant theme of the agreement, which is Peace. In contemporary Anishinaabe normativity they can represent the seven grandmother and grandfather teachings, the seven stages of life, and the seven directions of east, south, west, north, up, down, and centre.Footnote 113 Each of these references rests upon Anishinaabe teachings related to the living Earth—nindinawemgaganidook—incorporating the entire environment as parties to the treaty relationship.
2.2.c) Anishinaabe Treaties with the More-than-Human World and the Crown
Second, Anishinaabe treaties with the more-than-human world also informed treaties made with the British Crown. When Europeans arrived in North America, they were often puzzled by Anishinaabe peoples’ views about the more-than-human world. Despite these differences, missionaries, traders, governors, and settlers could not ignore them. When animals were abused and overhunted, animals’ agency and social standing were highlighted.Footnote 114 When the British began making treaties with Anishinaabe people, Anishinaabe people turned to “more than human knowledge and discretion” to help them make decisions.Footnote 115
For example, when deciding whether to create diplomatic relationships with the British Crown, Anishinaabe peoples participated with tobacco, turtles, snakes, and dogs, and deliberated around council fires about how they should act.Footnote 116 This was evident in 1763, when First Nations peoples around the North American Great Lakes were invited by Great Britain to make peace following the conclusion of the Seven Years War.Footnote 117 In determining whether to accept the Crown’s invitation, Anishinaabe people sought assurances that it would be safe to meet their former enemies.Footnote 118 In seeking such guidance, Anishinaabe leaders gave large quantities of asemaa (tobacco) to a turtle spirit in ceremony.Footnote 119 Once the offering had been made, the turtle answered through the medicine person and assured the leaders that they would receive safe passage.Footnote 120 The Anishinaabe resolved to attend, and in the early summer of 1764, began their journey to Niagara to council with the British.
On the way to the gathering, the Anishinaabe continued to watch and listen to one another and engage in further deliberations with the more-than-human world. Days into their journey, as they built a fire in preparation for their evening’s rest, they discovered a rattlesnake, ready to strike, with “its head raised considerably above its body.”Footnote 121 To calm the snake and ask for its guidance, the Anishinaabe raised ceremonial pipes and blew smoke towards snake. They addressed it as ‘Grandfather’ and asked for help along their journey.Footnote 122 In time, the snake uncoiled to its four- or five-foot length and, in interpreting the snake’s actions, the Anishinaabe reframed how they might be received by the British. The Anishinaabe concluded that “this manito had come, or been sent, on purpose to meet them; that his errand had been no other than to stop them on their way; and that consequently it would be most advisable to return to the point of departure.”Footnote 123
Thus, the snake was interpreted as conveying a different message from that of the turtle, who had been consulted at the beginning of the journey. An extreme storm also accompanied the snake’s appearance and likewise played a role in their discussions, producing more deliberation about how they should proceed. Despite the snake’s warning, the Anishinaabe decided to continue their journey. Nevertheless, it was a journey marked by continuing anxiety, which prompted more careful interactions with the more-than-human world before the delegation ultimately arrived at treaty councils and were received in peace.
This brief account demonstrates that turning to the more-than-human world to regulate one’s affairs does not eliminate the need for interpretation in the face of parallel, contrasting, and contradictory points of view. This challenge is present in every legal system, because humans interpret words, actions, symbols, or behavior in contexts which invariably contain more than one meaning. Nevertheless, this journey to receive pledges of peace from the British provides important insights about Anishinaabe law. More-than-human kin were key participants in Anishinaabe decision-making in planning, preparing, and proceeding to enter treaties with the Crown. Encounters with turtles, snakes, storms, dogs, tobacco, and other more-than-human beings allowed the Anishinaabe to consider different interpretations concerning their future. They revealed alternative pathways regarding treaties. More-than-humans did not speak with one voice; their messages were seemingly divergent, which (importantly) invited participation from the group as they deliberated whether and how they should extend their treaties with the surrounding world.
Fortunately, the Crown and the Anishinaabe pledged to peacefully support one another when the Anishinaabe arrived at Niagara. At the same time, the Anishinaabe continued to consult and invoke their more-than-human kin in making decisions. For example, one group of Anishinaabe commented upon how they were influenced by the skies and waters in understanding the Crown’s promises: Upon the British chief negotiator’s arrival, they said that “the Lakes became placid, the Storms ceased [and] the Whole face of Nature was changed.”Footnote 124 As the Anishinaabe spoke, the Crown understood that creating and sustaining the rule of law with Indigenous peoples required the use of Indigenous legal forms.Footnote 125 As the Ontario Superior Court of Justice noted in a subsequent treaty context: “European actors … used kin metaphors in communications with the Anishinaabe … [and] ‘indicated that they understood the moral obligations and duties that kin [owed] each other.’”Footnote 126 In addition, the Crown “understood kinship terms as serving a metaphorical function.… Although the Crown and the Anishinaabe came to the negotiation table from different worldviews, there was a reciprocal use and understanding of kinship metaphors.”Footnote 127
Furthermore, the Crown manufactured wampum belts and gave speeches that signalled the importance of rooting relationships between nations in the Earth.Footnote 128 The Supreme Court of Canada described the results of the two-month gathering at Niagara in ways that reinforced Indigenous relationships to land, observing that:
[A]t a Council at Niagara attended by over 1,700 Indigenous people, including Anishinaabe leaders, the Crown again assured the Indigenous attendees of their autonomy and stated that the Crown would maintain and protect their title to their lands. Gifts and wampum belts were exchanged, including the Great Covenant Chain Wampum and the 24 Nation Wampum. The trial judge described the Great Covenant Chain Wampum as an embodiment of the “merged symbols of diplomacy” between the two groups, visually represented on the belt by two figures holding hands as part of two links in a chain.Footnote 129
For the Anishinaabe, maintaining and protecting lands as by exchanging gifts and wampum included procedural and substantive fairness for all beings, including humans and their more-than-human kin.
The significance of this argument for the rule of law is that treaties between Anishinaabe people and the Crown cannot be properly implemented unless we understand that these agreements also include the more-than-human world. While the Restoule case’s nascent recognition of this point is a step in the right direction, this doctrine must become even more pervasive and explicit. Interpretive canons of construction which also view treaties through Indigenous legal frameworks are key in this regard. For example, the courts have said that treaties must be interpreted in a large, liberal, and generous manner, resolving ambiguities “in favour of the Indians.”Footnote 130 The Supreme Court has also held that:
Aboriginal treaties constitute a unique type of agreement and attract special principles of interpretation.… In determining the signatories’ respective understanding and intentions, the court must be sensitive to the unique cultural and linguistic differences between the parties.… The words of the treaty must be given the sense which they would naturally have held for the parties at the time.… A technical or contractual interpretation of treaty wording should be avoided.… Treaty rights of Aboriginal peoples must not be interpreted in a static or rigid way. They are not frozen at the date of signature. The interpreting court must update treaty rights to provide for their modern exercise.Footnote 131
As such, treaties cannot be conflated with common law conceptions of gift, status, contract, or covenant, although such ideas might be helpful by way of analogy. They must be understood on their own terms. Interpreting treaties through an Anishinaabe legal lens liberally expands our heretofore narrower substantive views of who and what are protected by treaties, and it also extends our conceptional views about what constitutes law.
For example, the invocation of treaties being for as long as the grass grows, river flows, and sun shines must be seen as incorporating love for the more-than-human world.Footnote 132 Moreover, agreements reserving Anishinaabe rights to hunt and fish should be seen as not only including access for food, but also recognizing Anishinaabe relationality with the lands and waters in which they dwell, in accordance with their legal traditions.Footnote 133 Furthermore, the placement of doodem/clan markings on treaty documents can be regarded as extending Anishinaabe treaties with the more-than-human world into agreements with the Crown. In marking treaty participation as otters, bears, pike, eagles, and other ancestral relatives, it could be said that Anishinaabe people invited others to live in accordance with these relationships through Anishinaabe law. Treating fish and animals as fellow citizens extends governance patterns that incentivize greater respect for sustaining land and waters on which we all rely.Footnote 134 Other First Nations in Canada also incorporate agreements with the more-than-human world in their legal systems, which likewise holds significance for the rule of law in Canada in broader terms.Footnote 135
3. Anishinaabe Constitutions, Legislation and Tribal Courts: Deshkan Ziibiing & Gaa-waabaabiganikaag Anishinaabeg
Anishinaabe treaty relationships are found in how they constitute, legislate, and deliberate in adjudicative and other forums. Our constitution as beings is embodied in our treaties, making these laws ancient, ongoing, and regenerative. The Supreme Court of Canada has written that “principles of constitutionalism and the rule of law lie at the root of our system of government.”Footnote 136 The rule of law “requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order.”Footnote 137 Judging Indigenous peoples by norms flowing from their legal traditions, as part of the rule of law in Canada, facilitates normative order by aligning legality, legitimacy, respect, effectiveness, and accountability.Footnote 138 This is why Canadian constitutionalism must be harmonized with broader Anishinaabe constitutionalism, in order to facilitate the rule of law.
3.1 Deshkan Ziibiing (Chippewas of the Thames First Nation)
Anishinaabe people’s constitutionalism contains an historical lineage stretching back through the ages, which aids in the consideration of the country’s underlying constitutional principles.Footnote 139 While Anishinaabe constitutionalism is embodied and living in nature, some communities within Anishinaabe-akiing (Anishinaabe territory) are supplementing this constitutionalism through written texts.Footnote 140 For example, the Deshkan Ziibiing/Chippewas of the Thames First Nation ratified a written constitution on August 11th, 2018 (Deshkan Ziibiing Anishinaabe Aki Chi-Inaakonigewin).Footnote 141
The Deshkan Ziibiing Anishinaabe (Antler River people) live on a reserve along what is now called the Thames River on land that is south-west of London, Ontario. They entered treaties with the British Crown between 1818 and 1822.Footnote 142 They also signed treaties alongside other Anishinaabe groups from 1764 to 1827.Footnote 143 However, like other Anishinaabe people, the Deshkan Ziibiing regard themselves as being in a treaty-relationship with the more-than-human world. This is illustrated in Article 1 of their written Constitution. After Article 1.1 states that: “Maanda Chi-Inaakonigewin, naagjigaade maanpii Deshkan Ziibiing Anishinaabe Aki, This Chi-Inaakonigewin is the supreme law of Deshkan Ziibiing Anishinaabe Aki;” Article 1.2 then reads:
Maanda Chi-Inaakonigewin, maanpii Deshkan Ziibiing Anishinaabe Aki, dagwaszin Anishinaabe mazi-kammikwe-inaakonigewin miinwaa gete Anishinaabe izhitwaawin.
The supreme law of Deshkan Ziibiing Anishinaabe Aki includes Anishinaabe mazi-kammikwe-inaakonigewin miinwaa gete Anishinaabe izhitwaawin.Footnote 144
Article 1.2’s inclusion of references to mother earth law (mazi-kammikwe-inaakonigewin) and ancient Anishinaabe lifeways (gete Anishinaabe izhitwaawin) directly incorporate as supreme law the kinds of relationships with the more-than-human world discussed in this essay. Furthermore, the supremacy of this written and unwritten constitution prevails over any other law, by-law, policy, regulation, or code enacted by Deshkan Ziibiing.Footnote 145
Most encouraging from a more-than-human rule-of-law perspective, Article 10.4 of the Deshkan Ziibiing Constitution recognizes that members of the more-than-human world are constitutional citizens who are equal to other members of the constitutional order and cannot be discriminated against:
Kina gwa Shkwanganing debendaagozijik miinwaa debendaagok naasaap da zhi-gnowaambjigaade, dabishko gwanaa giigoonhik, asiniin/aazabikoon, bemaging, minidoonhshesak, ganebagook, miinwaa e-nii’oogaadejik. Kina gwa Akiing etek Deshkan Ziibiing Anishinaabe Aki.
Every citizen/member, including the fish, rocks, plants, flyers, crawlers and four-legged beings, is equal before and under the laws of Deshkan Ziibiing Anishinaabe Aki without discrimination or prejudice.Footnote 146
Furthermore, humans and more-than-humans all possess inherent rights throughout the territory, in accordance with Anishinaabe traditions of mobility.Footnote 147
The statutory implications of these more-than-human constitutional principles are illustrated in the Deshkan Ziibiing Wiindmaagewin Consultation Protocol that was passed in November of 2016 (and revised in June 2023).Footnote 148 This law is designed to guide territorial development when others propose projects which might infringe Deshkan Ziibiing treaty rights. Canadian law requires governments to consult and accommodate Indigenous peoples when their Aboriginal rights may be infringed.Footnote 149 In response to the government’s obligations and their own constitutional responsibilities, the Deshkan Ziibiing enacted standards for satisfying conditions for adequate consultation and accommodation in their legal systems.
The Wiindmaagewin Consultation Protocol begins by stating the law’s purpose, which is to ensure the protection of their watersheds, relationships, and rights. Next, the Protocol declares reserved rights in the territories and discusses Anishinaabe treaties with the Crown from the 1760’s forward. The law then outlines “Principles of Intersocietal Governance and Communication” under headings related to government, communication, and co-existence and economy.Footnote 150 In particular, the Protocol explicitly recognizes that Anishinaabe rule-of-law responsibilities are rooted in the more-than-human world:
Our engagement with other communities stems from our recognition of several principles, which derive from our Creator’s gifts to us of life and land, and from our Creator having placed us within a world full of relationships with others. Our responsibility to maintain these relationships, in accordance with principles derived from our creation story, is central to our continued wellbeing as a people. These principles guided our ancestors in their Treaty partnerships historically, and they remain foundational today in our dealings with federal, provincial, and municipal bodies.Footnote 151
In expressing obligations in the foregoing manner, one sees Anishinaabe rule of law as being rooted in origin stories and treaties. The Protocol clearly communicates that humans are related to the more-than-human world and that these relations are protected through treaties. A portion of the law reads:
Gdinawendimi: “We are all related.” A basic truth of our creation story is that we are related to everything that shares the world with us. We expect that all consultation and discussion with governments and third parties will focus on how the proposed project will foster this relatedness.
Mno-bmaadiziwin: “The good life.” We understand that the Creator placed us within our world’s web of spiritual and bio-physical relationships in order for life to flourish. Life flourishes when we base our relationships on the gifts of the Seven Grandfathers: Nbwaakaawin “wisdom,” Zaagidiwin “love,” Minaadendamowin “respect,” Aakde’ewin or Zoongide’ewin “bravery,” Gwakwaadiziwin “honesty,” Dbaadendiziwin “humility,” Debwewin “truth.” Proposals should enhance the good life for all our relations and discussions regarding those proposals should be grounded in the Seven Grandfather teachings.
Naaknigewin: “Law.” We expect that all consultation and discussion with governments and third parties will aim to respect and embody our laws, including our Chi-Inaakonigewin, as the measure for our decisions provided by the Creator.
Anishinaabe dbendizawin: “Anishinaabe independence,” or “self-determination.” We were created to live as an independent people, and are therefore able to ally with, but not to become subject to, other independent peoples. The Two Row Wampum embodies this alliance of equals, each party free to follow its own way without interference, but each also attentive to the wellbeing of the other. We expect that all proposals from governments will respect this most basic tenet of the Two Row Wampum.Footnote 152
One clearly sees in the Wiindmaagewim Protocol the idea that treaties are an invitation for the Crown to live in accordance with Anishinaabe legal traditions. These are the principles the Supreme Court of Canada recognized in considering the Robinson Treaties, when they wrote that Anishinaabe systems of law hold that everything is alive and requires that we act towards one another with kindness by meeting obligations of respect, responsibility, reciprocity, and renewal between Anishinaabe people, the Crown, and the more-than-human world.Footnote 153
3.2. Gaa-waabaabiganikaag Anishinaabeg: White Earth First Nation
In discussing Anishinaabe law’s distinct conceptions and content, it is vital to acknowledge that these laws are not perfect. Like all peoples, Anishinaabe struggle to implement their laws’ highest aspirations. Anyone can act in ways that destroy, diminish, or ignore treaty, constitutional, and regulatory obligations with the human and the more-than-human world. This was certainly the case when people engaged in overhunting, both in historic and in more contemporary periods.Footnote 154 It is the case every day, whenever we depart from our laws by lying, stealing, cheating, abusing, defrauding, or manipulating one another for selfish purposes. Anishinaabe Tribal courts and other adjudicative fora are filled with examples of Anishinaabe people’s unlawfulness in relational terms. At the same time, Anishinaabe people’s deep honour and respect for law is equally—if not more—apparent in the numerous ways they uphold their obligations despite the challenging economic, social, political, and legal circumstances encountered in contemporary North America.
Anishinaabe people are neither angels nor demons; they are real people living in complicated societies containing a variety of viewpoints, behaviors, and ambitions. This is why Anishinaabe people need their constitutions, treaties, and regulations: to help them work through their disagreements, divisions, and disputes, and also to address coercion, cruelty, ignorance, and forgetfulness in their midst. To highlight the complex nature of Anishinaabe efforts to uphold their rule of law in relation to the more-than-human world, in concluding this article I briefly address the failure of the White Earth First Nation (Gaa-waabaabiganikaag Anishinaabe) in Minnesota to protect a cultivated rice species called ‘Manoomin’. I develop this point to demonstrate the limitations of positivistic law as declared by legislatures and interpreted by judges within an Anishinaabe legal order. In contrast, I argue that Manoomin’s future is best secured by Anishinaabe people continuing to practice law in the lakes and rivers where it grows, through harvests that follow ancient laws and protocols.
Manoomin is a traditional Anishinaabe relation. Manoomin is a nourishing source of food, and figures prominently in Anishinaabe migration stories, art, science, and educational fora.Footnote 155 Wild rice is sacred, and its name literally means ‘the good berry or seed’ in Anishinaabemowin. It is a semi-aquatic grass that the Anishinaabe harvest by canoeing into its midst and knocking ripe grain heads into their boats with two small wooden sticks. These two sticks are designed to dislodge mature grains for collection, but the harvesting method also permits many seeds to fall to the lake’s bottom to germinate, thereby continuing the growth cycle.
In December 2018, the Anishinaabe of White Earth First Nation in Minnesota created the Rights of Manoomin Law to recognize wild rice as possessing the right to exist, flourish, regenerate, and evolve, and to establish its inherent rights to restoration, recovery, and preservation.Footnote 156 This direct application of Anishinaabe law to Manoomin as a more-than-human agent shows how seeds, stalks, roots, and water are fellow citizens, or dibenjigazowag—those who own themselves or have responsibility for their relationships.Footnote 157
In addition, the White Earth Rights of Manoomin Law also protects wild rice in its broader territorial context. As such, it recognizes that Manoomin has a right “to pure water and freshwater habitat; the right to a healthy climate system and a natural environment free from human-caused global warming impacts and emissions.”Footnote 158 In this regard, Anishinaabe law values Manoomin’s ‘aboriginal title’ to places where they grow, and recognizes that climate change is a threat to these beings’ home and native lands and waters.
White Earth’s legal enactment also recognizes that Manoomin his/her/it/their-self, should be able to enforce their own rights, along with the 1855 Treaty Authority and White Earth tribal members.Footnote 159 Consistent with arguments made in this lecture, this means that wild rice is considered to have their own legal personality in Anishinaabe law. These beings can bring their own action, in their own name, to seek legal remedies to harms they may be facing. To provide Manoomin a legal forum to secure their own protection, the law further states their (wild rice’s) rights can be enforced in “any appropriate court, tribunal or legal forum,” in addition to non-violent direct action “[i]f the 1855 Treaty Authority fails to enforce or defend this law, or a court fails to uphold this law.”Footnote 160 White Earth’s tribal courts have longstanding competence in dealing with Anishinaabe legal issues, and questions related to Manoomin are explicitly empowered to be considered in these fora.
Thus, once the Rights of Manoomin Law was promulgated, and harm was alleged, Manoomin filed a claim in White Earth Tribal Court. This was done by the White Earth Band of Ojibwe and other Anishinaabe people, who had been arrested for opposing pipelines that they argued adversely affected wild rice beds.Footnote 161 Manoonmin et al’s action was against the Minnesota Department of Natural Resources (DNR). Manoomin and the other plaintiffs requested, inter alia, declaratory and injunctive relief for Manoomin’s inherent rights to exist within a healthy climate system free from human-caused global warming impacts and emissions. The allegations were that the Minnesota DNR threatened Manoomin’s inherent rights by taking excessive amounts of surface and ground water, which threatened Manoonmin’s home.Footnote 162 These claims were also linked to arguments that “Manoomin is also an indicator species in the ecosystem also struggling to survive climate change,” due to greenhouse gas accumulations produced by oil and gas production and distribution.Footnote 163 Thus, it was argued that the Minnesota DNR:
[Threatened Manoomin’s rights under the Rights of Manoomin Law by] abruptly, unilaterally and without formal notice to tribal leaders (quasi-secretly), and without Chippewa consent, grant[ing] Enbridge Line 3 project an increase of approximately 5 billion gallons of public ground and surface water, for horizontal drilling under rivers and other waterways of the upper Mississippi watershed.Footnote 164
The contention was that the pipeline’s repair could lead to oil spills, which could adversely affect water quality off-reservation in treaty territories where Manoomin lived, and where Anishinaabe people had reserved the right to gather Manoomin under treaties with the United States government.
This was an innovative claim, arguing that more-than-human beings—like wild rice—had rights to legal protection in contemporary Anishinaabe law.
Unfortunately for Manoomin and the other plaintiffs, their case was not successful.
The White Earth Court of Appeal held that the Rights of Manoomin Law could not be enforced beyond the boundaries of the Tribe’s reservation. Thus, in coming to this conclusion, the Tribe’s own legal system ultimately refused Manoomin’s claim, despite the Federal District Court deference to the Tribe that caused them not to intervene.Footnote 165 The White Earth Court of Appeal held that its Tribal Courts had no jurisdiction to decide the issue because of Federal Indian Law principles, as developed in the United States courts. The White Earth Court of Appeal concluded that a case such as “Montana v. United States, 450 U.S. 544 (1981), requires that a plaintiff show that the non-member defendant [in this case the Minnesota DNR] engaged in [unlawful] activities on the reservation.”Footnote 166 In other words, the Anishinaabe Appeal Court at White Earth held that declaratory relief could not be granted to Manoomin and the other parties bringing the claim because the alleged harm was deemed to be speculative and would occur off-reservation. As the Court wrote: “Because there is no allegation that the DNR officials engaged in allegedly unlawful activities on tribal land, the Tribal Court lacks subject matter jurisdiction over this lawsuit.”Footnote 167
Unpacking the complexities of Anishinaabe law at White Earth to understand the connection between Manoomin and Anishinaabe rule of law requires further context.Footnote 168 As noted, as we extend Indigenous laws’ recognition, we must also acknowledge that, while Indigenous law can be environmentally sound, Indigenous peoples can also promulgate and interpret law in ways that destroy life’s very possibilities. This may occur through deference to United States law, as happened in this case.Footnote 169 It may also happen by adopting frameworks, such as rights, which may not necessarily accord with broader Anishinaabe traditions.Footnote 170 Furthermore, like all humans, appetites can be insatiable and Indigenous peoples can act in gluttonous, voracious, and immoderate ways.Footnote 171 The Tribal Court of Appeal did not condemn such forces. Perhaps they were passively allowing them to continue. Yet many of our trickster and wiindigok stories chronicle what happens when we forget that the environment is not limitless.Footnote 172 These stories also contain lessons for climate governance; in some contexts, failure can be as instructive as success. Footnote 173 As this case shows, Indigenous peoples can act contrary to their norms, ethics, and values. They do not always heed the powerful cautions and restraints against such behaviour. This is why we need to apply Anishinaabe laws that respect and connect to environmental kinship norms, as opposed to rules that would facilitate water, land, and air use without reference to sustainability.
While formal legal instruments may be helpful in some future case to advance Anishinaabe law, White Earth’s experience demonstrates that written word and top-down legal institutions at present cannot compete with direct experience with the more-than-human world. In the present context, Manoomin is best sustained by going into the water and disturbing the grasses through traditional harvesting—a practice which lets the grains fall to lake bottoms to generate next season’s harvest.
In other words, to highlight one aspect of this essay’s thesis: The written word and top-down legal institutions, while necessary in today’s legal landscape, should never replace or become disconnected from law’s heart, which flows through direct experience with the more-than-human world. To remain a vital force, Anishinaabe rule of law must be continually reconnected with the living environment to renew and sustain its participatory persuasiveness and physical power. To purposely repeat myself, and thus mimic the Anishinaabe language’s power of reduplication in English: Law’s power to sustain Manoomin is best exercised on the water, in the canoe, with the knocking sticks, thereby allowing the grain to be harvested to nourish human beings, but also fall to lake bottoms to germinate through respectful human interaction and cultivation through gentle, nuanced disturbance.Footnote 174
The White Earth of Ojibwe Court of Appeals’ treatment of Manoomin therefore illustrates that Indigenous law must never be left to legislatures and courts alone. It should be the product of complex forces.Footnote 175 It should develop in both moments of harmony and rupture. The rule of law does not merely arise from agreement; it is also forged in moments of conflict, even disturbance. Anishinaabe and other Indigenous peoples grapple with both agreement and disagreement, in both historic and contemporary settings. It should go without saying that Indigenous peoples do not all see the world in the same way. We strive for the freedom to be different from other North Americans. We also work to advance the freedom to be different from one another, too. Indigenous law exists to help us act with a degree of cohesion in the face of internal difference. It should also function as a check on our own worst excesses. In addition, it should also restrain broader State laws, to ensure that constitutional balances contain and constrain ecological overreach. The application of Anishinaabe peoples’ environmental laws, ethics, and perspectives is an important tool for helping us deal with profound rule-of-law questions, but it is not determinative—particularly when Anishinaabe are the parties that also cause harm.
4. Conclusion
In this essay I argued that law is not the sole preserve of parliaments, legislatures, or courts. It consists of activities that reinforce obligations rooted in sustaining interdependence between humans and the more-than-human world. In this regard, I reasoned that the rule of law must be democratized and decolonized by treating it as something in which we can all participate, as part of revitalizing all our legal traditions in Canada.
I have also suggested that the rule of law’s content can be broadened by recognizing and affirming that humans are not always the centre of law’s content. Anishinaabe legal principles protect and sustain relationships with the broader earth, water, and sky, thus allowing us to see that we can draw law from a variety of processes, criteria, measures, indicia, benchmarks, conventions, customs, traditions, signposts, tenets, precedents, and guides learned from the human and more-than-human world.
Acknowledgements
My sincere thanks go to Lindsay Borrows, Andrew Botterell, Harry Hobbs, Heidi Stark, and Wade Wright for helpful comments on earlier versions of this article.
Open access
