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For the Defence_34-3_Layout 1 13-08-16 10:41 AM Page 40 Opichi: A Transformation Story, an Invitation to Anishinaabe (Ojibwe) Legal Order by Aaron Mills, Waabishki Ma’iingan 1 Proving yet again that liberalism follows from a certain understanding of the autonomy of the moral subject is hardly a convincing argument to those who accept neither that view of the subject nor the primacy of reason among the possible forms of argument. 2 Biindigen (Come In) I hold in my hand a small bird’s nest. I found it on my front lawn four days ago, beneath the giant wild chestnut tree that requires me to bow beneath it when stepping from the chestnut and cherry-stained sidewalk onto the path to my front door. I searched around it for injured birds or bits of eggshell and found neither. I put Tobacco down, took the nest, and have been letting it work on me for the past four days. It’s a marvelous feat of engineering and I’m mindful of the effort that it took to create it and to sustain it. Four of its qualities strike me above all others: its unmistakeable circular shape; its varied, heterogeneous composition; its function as a home; and perhaps most importantly, its inherently contradictory state of material fragility and structural integrity. Taken together these qualities bring to my mind the story of Opichi (Robin) and through it, Anishinaabe 3 legal order (which I’ll abbreviate to ALO). This article is an explanation of these first words. My intention is to explain ALO as best I can and in a manner that assumes no familiarity from my reader. By invoking the concept of “invitation” in the title, I’m disclosing that I value the development of your understanding. This article is thus meant to empower 40 FOR THE DEFENCE • VOL. 34 • NO. 3
For the Defence_34-3_Layout 1 13-08-16 10:41 AM Page 41 OPICHI: A TRANSFORMATION STORY, AN INVITATION TO ANISHINAABE (OJIBWE) LEGAL ORDER those who want to understand ALO better. I do this for two reasons. First, I believe a citizenry (and especially its legal profession) educated in all of our legal traditions is a necessary condition for our practice of law to be a practise of justice. This has particular significance for the criminal bar. More practically, indigenous legal orders have much to offer Canada not only for the benefit of indigenous peoples, but for all Canadians. This is my central refrain. I strive to make space for indigenous legal orders, and to encourage you to do so too. I pursue this goal not to lay the groundwork for separation, but rather to ground my unyielding hope that when our differences are understood and empowered (and I would hope too for “celebrated”), we have the political conditions that will allow us to come together as one. My immediate objective here is simply to demonstrate that indigenous peoples have law and have always had law, even though indigenous legal orders look quite different from familiar western ones. To do this we need to explore the relationship between culture and law. Understanding that Canadian law is conditioned by culture enables us to recognize a distinction between the idea of law and Canada’s particular conception of law. 4 The recognition of this distinction in turn empowers us both to imagine new legal possibilities and to recognize other legal systems as legal systems, even if they can’t be mapped onto our particular conception of law. Once possessed of a rudimentary understanding of ALO, I present arguments for why the fact of its existence should matter to criminal lawyers. Finally I suggest possible courses of action should your developing understanding inspire you to accept new responsibilities. We’ll begin and end with Opichi, trying to understand all of this through story, among the most central devices for learning Anishinaabe law on its own terms. A Note on Voice: Avoid the Singularity This article is just my perspective of ALO and even then only of the general pattern, to which there are local exceptions. It’s not “the” perspective of ALO, for as intellectually tidy and ready-forreader-consumption as that might be, we live in a much more complicated world. We search for understanding in untidy places, within a sometimes chaos of voices. This isn’t a problem; it’s an ontological fact — a simple statement about what there is in the world — and as such it’s binding upon all peoples everywhere. You would thus be wrong to allow my perspective to occupy too settled a position within your understanding. That kind of singularity is a black hole that will implode your understanding in on itself. Don’t get sucked in. If I succeed in sparking enough interest that you continue to learn elsewhere, invariably you’ll find others whose perspectives differ. Indigenous peoples are human. We don’t share a hive mind and like all peoples everywhere, we’re prone to disagreement. To hold us uniquely to a standard of uniformity is at best logically inconsistent and morally unfair, and at worst straight up racist. I was shocked to see so many journalists adopt this double standard in their reactions to the Idle No More movement, judging indigenous peoples negatively for their common humanity, their differing ideas. Opichi: A Brief Summary Opichi is a story of difference, struggle, and transformation. I draw here from a version given by Basil Johnston, 5 but there are others; 6 our own stories aren’t spared from the ontological fact of internal differentiation. Opichi was the son of Menominee, an ambitious and overbearing father who had already decided while his son was still a small Hater Reed Series by Scott Benesiinaabandan. FOR THE DEFENCE • VOL. 34 • NO. 3 41
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