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For the Defence_34-3_Layout 1 13-08-16 10:41 AM Page 44 OPICHI: A TRANSFORMATION STORY, AN INVITATION TO ANISHINAABE (OJIBWE) LEGAL ORDER Menominee; nowhere does Menominee’s perspective set the standard for all others. This is just a brief snapshot of Canada’s legal foundations and even then it provides only a partial picture. Also, we’ve clearly opted out of “purest liberalism,” having made constitutional accommodations for various kinds of substantive difference, including English and French language, religion, aboriginality, gender, and multiculturalism. This should nonetheless provide a sufficient foundation for allowing us to see that our conception of law doesn’t exhaust the concept of law, allowing us to imagine that things might have been and can be different. Within Anishinaabe worldview, the universe is a map of relationships. The Principle of Relationality and Anishinaabe Worldview Whenever I’m moving within Anishinaabe spaces — a reservation, a university, a street demonstration, a kitchen — other Anishinaabeg always want to know who my family is and what clan I’m from. Albeit probing, such questions aren’t unchecked curiosity given too much liberty. On the contrary there’s a deep culturally-embedded rationale for them. Within Anishinaabe worldview, the universe is a map of relationships. It doesn’t merely consist of the various orders of creation. It includes the infinite lines of our interconnection, the countless paths weaving our lives together. It is a commonplace to see these lines in Ojibway painting, for instance within the Woodlands School. Anishinaabe ontology is as much about the interstice — the space between things in the world — as it is about the existing things. Our creation story is the constitution of this idea. In the version I believe, Nanabozhoo, the Anishinaabe trickster figure, grievously wounds Mishibizhiw, the Sea Panther and most powerful manidoo (spirit) of the waters. In consequence Mishibizhiw causes the waters to rise until all the world is lost beneath the waves. Nanabozhoo finds himself on a raft with the animals that are proficient swimmers and with the birds. He asks those remaining to dive for earth so that he might use it to recreate the world. Several try and fail, until at the cost of his life, Muskrat succeeds. Clenched within his stiff fingers is a clump of dirt. After returning Muskrat to life, Nanabozhoo places the earth on the back of a Turtle (from whence the name “Turtle Island” for North America). From there the winds from the four directions begin to expand the earth outwards. Thus the creation story is the story of different kinds of beings working together, each as it is able, to recreate the world anew. It’s a profound and incredible moment. It’s a tremendous source of pride for me to have a story such as this describe the beginning of the world as I know it. But for our purposes what matters is that the genesis moment is dependent on the working relationships between beings for its possibility. You will doubtless have noticed that what I’ve perhaps confusingly called a creation story provides that a world was already in existence prior to its creation. Because of the flood, the Anishinaabe have two creation stories. The one which precedes the rebuilding of the world is equally important for appreciating the importance of the principle of relationality to Anishinaabe worldview. In this story, Gizhe Manidoo (Gentle Spirit) gives life to each order of creation. Each kind of being (for instance, maple trees, buffaloes, small creeks, or lichens) was given particular instructions to follow; if each does as instructed, the ontology of interconnection will be sustained and though we will all die in time, yet all of us will flourish. Humankind was the last order of being created and is the least powerful within all of Creation. The Anishinaabeg are dependent on all other orders of being not only for their flourishing, but for their very survival. Humankind thus occupies a position of tremendous humility and respect for all others, with whom our good relationships make our continued existence possible. There is therefore a profound respect for nonhuman beings, including plants, animals, spirits, and other conceptual, geographic, meteoric, and astronomical phenomena. All of these beings are understood to possess agency, volitional states, and inherent value. Personhood is attributed to many of them. Thus humans have a monopoly on neither moral nor legal agency; the ends of all beings must be considered whenever one contemplates action with possible consequences for them. An Anishinaabe Conception of the Self I spent time explaining the principle of relationality because it exerts tremendous force on ALO. Consider the self: how we think of persons. In contrast to the liberal understanding, I don’t understand myself as existing fundamentally apart from others. Nor is my sense of self reduced to part of a larger whole. Instead I and the whole exist in respect of one another, dialogically (“whole” is a placeholder for any community in which I hold membership, and today there are many). It’s my situatedness with respect to the rest of Creation that makes me, me. The infinite lines of relation hold me in place, locating me for all to see and know. Thus the Anishinaabe conception of self isn’t conceived of as a sovereign, autonomous unit and its liberty isn’t maximized when it’s most fully disconnected from the choice-limiting claims of others. It’s instead constituted through its relationships with others. I’m careful to note that I haven’t described a collapsing of the individual self into a collective self; of autonomy into heteronomy (this is where collective rights, despite their positive impacts, have done much damage to 44 FOR THE DEFENCE • VOL. 34 • NO. 3
For the Defence_34-3_Layout 1 13-08-16 10:41 AM Page 45 OPICHI: A TRANSFORMATION STORY, AN INVITATION TO ANISHINAABE (OJIBWE) LEGAL ORDER how we understand indigenous peoples). Within Anishinaabe worldview, the self is preserved and even privileged, it’s just understood differently. The idea of a collective self doesn’t represent this difference but merely makes a corporate body a subject of the liberal self. Externally this makes no difference: collective selves are treated like all others. Internally it merely raises the question of allocation to persons. It is, incidentally, not simply a happy coincidence that corporations flourish within liberal states. Perhaps an example might be useful to ensure the foregoing is clear. Prior to the imposition of colonial governance structures on Anishinaabe societies, the clan system played a vital Clan is among the most obvious communities that shapes the identity of an Anishinaabe person. role in political organization. Clan is among the most obvious communities that shapes the identity of an Anishinaabe person. From clan flowed particular obligations to a residential community; to others of the same clan regardless of where they lived; to the spirit being from which a given clan takes its name and meaning (for instance in my case, the Bear). When I assert that I’m a Bear Clan Anishinaabe, I’m not cheerily disclosing that I’ve forsaken my own agency for that of a corporate body (the Bear Clan). I’m letting you know that the Bear Clan is a part of what makes me who I am. It’s one of the most important communities in which I hold membership and thereby expands my uniqueness. It’s precisely this importance that makes it prioritized information in respect of Anishinaabe protocols of introduction — which brings us to legal interests. The Representation of Legal Interests within Anishinaabe Legal Order My clan is often asked of me because it discloses important information, helping to inform others about how they may relate to me. We saw that for liberal societies like Canada, an atomistic conception of the self led to the representation of legal interests as rights. For the Anishinaabeg, too, the prevailing conception of the self determines the conceptual device through which legal interests are given form. Of course a different self means a different representation. Often when Anishinaabeg talk about legal interests from the perspective of their own societies they talk about “responsibilities” (when Indian Act bands engage with the state, media, or international law, they more frequently adopt the global discourse of rights). Other indigenous peoples use this term too. Within Anishinaabe spaces, responsibilities discourse is often intended to suggest a privileging of obligation over entitlement, consistent with the humble place of the Anishinaabeg within creation. Indirectly it also asserts the principle of relationality, for the basis for our obligation is reciprocity for all that we’ve received. For these reasons I think that invocation of “responsibility” is accurate. Having said that, I fear it’s nonetheless a mistake for it fails to disclose the most critical piece of information with respect to the identification of legal interests. Let me flag that my understanding is small and that I’m early in my research, but based on my engagement so far with elders, with Anishinaabe stories, and with Anishinaabe texts, as I see it governing responsibility was 18 right relationships. That is, recognized forms of relationship determined the distribution of responsibility (i.e. of obligations and entitlements). By “right relationships” I mean to suggest that there were local standards for how humans ought to act with respect to one another and to other kinds of beings, contingent on their identities with respect to one another. Thus there were local expectations for how, all else being equal, a father should relate to a daughter; a hunter to a slain animal; a Bear Clan Anishinaabe to his clan; a boy to his aunt; each of us to the Sun; a drum carrier to her drum; a tent shaker to his medicine power; each of us to our visions, and etc., forever. These relations are fluid and deeply contextual. They change as we do. Further, since my relationship with my drum may be different from that of you with yours, I may have obligations to mine which you don’t bear to yours. This deep contextualization means that there isn’t a rigid understanding of a drum carrier-drum relationship. ... there were local standards for how humans ought to act with respect to one another and to other kinds of beings, contingent on their identities with respect to one another. You’ll have noticed that in the few examples I offered I left out the hard cases, the ones which surely Canadian criminal lawyers will most want to know about, the ones involving relations such as: victim with thief; murderer with person slain; murderer with family of person slain, etc. This omission isn’t because standards didn’t exist here, but rather because they were highly contingent on contextual factors and the present opportunity doesn’t allow me to engage them in a meaningful way other than to say that dominant among them was the relation existing between the parties involved. That is, liability didn’t flow strictly from a wrongful act, but factored in also, where existing and relevant, the relation of the parties involved. This is different FOR THE DEFENCE • VOL. 34 • NO. 3 45
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