Opichi: A Transformation Story, an Invitation to Anishinaabe (Ojlbwe) Legal Order by Aaron Mills, Waabishki Ma'iinganl

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

40 FOR THE DEFENCE • VOL. 34 • NO. 3

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, Anishinaabe3

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

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 dis-

tinction 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, strug­

gle, and transformation. I draw here from a version given by Basil Johnston,' but there are others;!> 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

Indian Affair •• (RG 10, Volume 3no, 'Ue 19,550-:3)

Hater Reed Series by Scott Benesiinaabandan.

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OPICHI: A TRANSFORMATION STORY, AN INVITATION TO ANISHINAABE (OJIBWE) LEGAL ORDER

boy what he would grow up to be like and how his life would unfold. He desired in particular for Opichi to sur­pass all others in athletic performance, but not only this; "to be victorious in the majority of encounters was not good enough for Menominee. He drove and urged his son to greater efforts .... "7 For Menominee, "[w]hen the boy triumphed there was joy; when he failed, desola­tion";" yet for Opichi results were decid­edly more negative: "There was no grat­ification in triumph; dread in losing."" Opichi was an effective athletic com­petitor and he enjoyed athletic pursuits, but "he much preferred to listen to the

... suffering and oppression

result where one strives to

force another into his or her

way of being, ...

songs of birds and to hear the chants of singers and to dance to the beat of drums. Secretly, he aspired to chant and to make people happy, through music and dance."!O Against his father's worst oppressions, Opichi's "only solace was in listening to the songs of birds."!2 With some bitterness Menominee eventually conceded his son wouldn't fulfil the ath­letic aspirations he held for him. However instead of empowering him to pursue his own ends - those aspira­tions that felt best to him - Menominee substituted his own goal. If Opichi couldn't achieve physical superiority over his peers, he would achieve spiritu­al excellence. Within Anishinaabe soci­eties prior to colonization, boys on the verge of manhood sought a vision through fasting in a secluded area of significance. Many today continue to follow this practise. This is what Opichi did except all didn't go as Menominee planned.

For five years Opichi sought and failed to obtain his vision. On the sixth

year Menominee found an empty camp­site when it was time to bring his son back to the community. He grew des­perate, searching everywhere and find­ing nothing but a small bird which fol­lowed him home, "singing all the while."12 The bird was a robin and it built a nest near Menominee's lodge where it could be heard singing each day. For his part, Menominee continued his search as weeks became months and then years. One day, now elderly, Menominee fell asleep while searching, at the exact spot where his son once sought visions. In his dreams, Opichi appeared to him! He explained that in his sixth vision quest he sought the abil­ity to make both his father and himself happy. The result was his transforma­tion into a robin and his gift of song. It raised his heart and lessened his father's pain of missing him. He explained that he loves his father, and that he'll always be with him, singing, and that now he must go.

Law and Culture Opichi - who was singing the entire

time I wrote that summary and who has just now stopped - is for me a story with two central teachings. The first is a forceful emphasis on the scope and value of difference. We are neither all the same in character or qualities, nor in our vision of a good life and this recog­nition frames our capacity to relate to one another. The second is that suffer­ing and oppression result where one strives to force another into his or her way of being, and directly connected, that the consequences of oppressive actions flow in myriad directions, including to the oppressor. There are of course other lessons to draw and other possible readings of these two. But on this reading Opichi is an instructive story for understanding the status of indigenous law in Canada today. In explaining this claim I'll take the two teachings in order. In taking up the first, consider this statement recently given by The Honourable Frank lacobucci in his independent review of the lack of representation of indigenous persons

42 FOR THE DEFENCE • VOL. 34 • NO. 3

on juries in Ontario: "To be asked to participate in Canada's justice system is seen by many First Nations people as contributing to their own oppression and, therefore, repugnant."13 That's a rather dismal statement. Why might indigenous peoples feel this way?

Part of the answer for many is the blunt fact of colonization. Although there are different views as to the impact of colonial practises past and present on the contemporary circum­stances of indigenous peoples, the sim­ple knowledge that negative impacts have resulted is a legal commonplace; our courts are even required to take

... many indigenous persons

associate Canada's justice

system with systematic

injustice ...

judicial notice of it.14 In consequence many indigenous persons associate Canada's justice system with systematic injustice and in particular the non­recognition of ongoing colonial prac­tices. There's a rich literature here, most­ly beyond the scope of this article. But I think there's more to the sense of repugnance the Iacobucci Report observed than this; there's something of great import often recognized but sel­dom understood. As for Opichi and Menominee, so for indigenous peoples and Canada: in one sense we're familt 5

and thus share much in common. Yet we're fundamentally different. We have different ideas about law, justice, and order. Are these differences fatal to rec­onciliation? Certainly not in principle. Practise is another matter for it takes heart to put mind to action. But with care, faith, and sincerity, albeit funda­mental these differences need not be a conversation-stopper. We don't have to be the same to be a unified people. Full recognition of our respective difference

OPICHI: A TRANSFORMATION STORY. AN INVITATIONJO.ANIS.HINA.AI;3I: (QJIBWj:) LEGAL ORDER

is the foundational necessary condition for our coming together as one.

As a first step, this requires us to ori­ent ourselves so that indigenous legal orders are made visible to us. We can start to do this by reflecting on our own legal system. When we're able to see that what we often simply call "law" is rigorously conditioned by our cultural commitments and is thus never just law but is always coloured a certain way, we'll be empowered to see that peoples organized differently also have law; their legal systems might simply appear as non-legal to us because they reflects their respective cultures. To borrow renowned cultural anthropologist Clifford Geertz' famous phrase, law is local knowledge. 16 To my mind then, "do indigenous peoples have law?" is a sorely misguided question. All societies

... law is local knowledge.

have law; law is a necessary condition for societies as such. Without law there exists no concept of community but merely persons assembled in aggregate. To my knowledge there's no evidence of any sort whatsoever that bears that reality out even once. The question rather is always "what must I know of this society in order to identify its legal system as a legal system?"

Yet many have endeavoured to hive off law from other spheres of public life as the unique domain of the West, of nation-states, or of societies otherwise organized under political conditions of hierarchy, centralization, and specializa­tion (i.e. excluding indigenous soci­eties), for instance by carving out dis­tinctions between law and mere custom. Despite the impressive intellectual architecture of some of these theorists, all offer tautologies: the distinction they draw between self and other, law and non-law, appeals to their own concep­tion of law and represents it as a frame-

work of universal applicability. Societies not organized (for instance) as nation­states do not possess law because law is defined in respect of the political form of the nation-state.

Canadian Legal Foundations Pierre Elliot Trudeau, who of course

ushered in Canada's Charter, described his vision of a just society like this:

Clearly, the very adoption of a constitu­tional charter is in keeping with the purest liberalism, according to which all mem­bers of a civil society enjoy certain funda­mental, inalienable rights and cannot be deprived of them by any collectivity (state or government) or on behalf of any collec­tivity (nation, ethnic group, religious group or other). To use Maritain's phrase, they are "human personalities," they are beings of a moral order-that is, free and equal among themselves, each having absolute dignity and infinite value. As

such, they transcend the accidents of place and time, and partake in the essence of universal Humanity. They are therefore not coercible by any ancestral tradition, being vassals neither to their race, nor to their religion, nor to their condition of birth, nor to their collective history.

It follows that only the individual is the possessor of rights.!7

Canada is a profoundly liberal society. Liberals hold as the hallmark of justice a rigid division between public and pri­vate life, which they believe makes pri­vate space for all peoples without mak­ing our shared public space the space of any particular people. As such, public space - for instance, the institutions of government - are said to be neutral.

But are they? In order for liberalism to be neutral, it would have to be uncondi­tioned by any form of substantive differ­ence, like culture or religion. But liber­alism is the product of particular histor­ical circumstances. It reflects the lived reality of particular peoples having experienced particular forms of conflict, situated in a particular place, through a particular time (most importantly, the

European Enlightenment). This is where we can begin to see liberalism's cultural saturation. In particular, the entire liber­al state apparatus turns on a conception of the self derivative of the Enlightenment: a sovereign human whose individual moral autonomy is sacrosanct. As such, like Trudeau con­cluded, liberalism strongly privileges the interests of individuals over those of groups. For our purposes this is critical: because each person's autonomy must remain unimpeded, his or her legal interests are necessarily represented as rights - the form of legal interest built upon the concept of the trump - an interest inviolable.

That's part of the liberalism story. The other part is that liberalism presumes the nation-state as a people's form of political organization. Yet like the liber­al conception of the self, the nation­state is also a product of history. But for the Thirty Years' War and the resulting Peace of Westphalia, what became the international system of states might have looked very different. There's nothing natural, neutral, or inevitable about the political form of the nation­state; it appeared as a solution to a par­ticular set of problems facing particular peoples. There's nothing neutral about the attendant principles of centraliza­tion, specialization, and hierarchy through which states function. A people might have been organized under very different principles. Throughout almost all of human history, we have been.

Thus while liberalism claims to be neutral, culture has been smuggled in at the foundations within the very con­cepts of rights and states. Law doesn't require that legal interests be represent­ed as rights. Where a society has a dif­ferent conception of the self, legal inter­ests might take an altogether different form. Similarly, law doesn't require the centralization, specialization, and hier­archy necessary for nation-states (or perhaps monarchies before them). A society organized under a different political form will have a legal order that reflects that difference. All over the world there exists Opichi and

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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

44 FOR THE DEFENCE • VOL. 34 • NO. 3

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 place holder 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

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'S 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, ete. 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

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than a doctrine of considering mitigat­ing and aggravating factors.

To draw a rather stark example, although within ALa killing someone was prohibited, there were specific con­texts of exception. Of course this was problematic and nobody I know wants to see that sort of remedy within a revi­talized ALa today. But in the context of the ALa of generations ago, intentional killing had logic and could have sanc­tion of law under at least two circum­stances. One was when someone had been identified as a windigo19 Ca deter­mination not easily made, at least not within the bounds of law). Another was when an injurious party failed to make amends with gifts for particular kinds of wrongdoing. 20 In order to make any sense of this latter category of excep­tion, one must understand that gifts were not nice things one gave on pleas­ant occasions. Gifts held deep material and symbolic value within Anishinaabe societies, a point that can't possibly be over-emphasized. Gift-giving was an essential feature of ALa and in a larger discussion I'd present an entire section on the logic of the gift. 21 Reduced to a single sentence, gift-giving was the pri­mary mechanism for regulating relation­ships. However you need not under­stand its complexity here; I raise the example of intentional killing only to illustrate that the determination of responsibility, understood as a particu­lar configuration of obligations and entitlements, is governed by the relation that exists between parties.

Finally, some may be worried that the deep contextualization that I've suggest­ed involves characterizing particular instances of right relationships creating an uncomfortable amount of uncertain­ty in the law. Where standards for action are not and cannot be published, a great burden is placed on individual persons. In terms of practise, this is why ALa built the law into its process of citizen­ship education. From the time they're small, children were exposed to stories that not only presented law, but which also fostered legal reasoning skills. Our stories are not didactic like Aesop's

Fables; the listener is expected to work for his or her own meanings. Story­telling is a well-established institution within Anishinaabe societies.22 Thus by the time a child reached adulthood, he or she not only understood the general sense of local standards, but was empowered to evaluate, apply, and re­imagine them, reasoning through legal situations. Legal knowledge was not the province of a professional class of lawyers.

From a more theoretical accounting of this difference, consider this. In the West, the principle of legality requires a rule enforcing the non-retroactivity of law, but the theoretical impetus has to do with a concern regarding epistemo­logical fairness: that a law can be known is a necessary condition for its legitimacy. The instantiation of this con­cern as a rule against retroactivity fol­lows from a particular theoretical tradi­tion of knowledge: one which deals in absolute truths and absolute knowabili­ty. For the Anishinaabeg, who theorize knowledge differently, the epistemolog­ical fairness concern is naturally addressed differently (I hope this is now a common theme). In a society that privileges relational being, contingency and interconnection over atomism, independence and isolation, certainty and objectivity have different meanings. There's no space of permanence and no space detached from subjectivity. The unconditioned state that liberalism imagines for itself doesn't exist. The closest analogue to "truth" in Anishinaabemowin is debwewin, which means something more like "the truth as I know it." Everything is always con­tingent and dynamic within Anishinaabe worldview. A claim aspires to objectivity only in the sense of a cumulating force: the more persons espousing it, the stronger its determina­tive authority. In the world of the Anishinaabeg, this is as close as one comes to certainty. This doesn't imply the absence of law, but it does imply the impossibility of categOrically defining individual entitlements and obligations outside of their relational contexts.

46 FOR THE DEFENCE • VOL. 34 • NO. 3

This is far from a comprehensive dis­cussion of right relationships and thus has offered few answers. I hope it has raised lots of questions. I also hope that as skeletal as it is, it's at least sufficient to convince you that the Anishinaabeg nonetheless had a coherent means of representing legal interests.

The Organization of Anishinaabe Legal Order

The organization of ALa, like its ori­entation, was powerfully influenced by the principle of relationality. Without the deep centralization, hierarchy and specialization of the nation-state which organize society to process narrow slices of relationships, relationships don't readily lend themselves to parsing in respect of discrete political, econom­ic, social, spiritual and legal engage­ments. In a world premised upon inter­connection, one sort of engagement isn't readily divorced from at least some of the others. French sociologist Marcel Mauss, in his study of gift exchange economies, represented this reality well. He described legal, economic, political, spiritual and social aspects of indige­nous societies as existing in respect of one another, in a total social fact. 23

For Anishinaabe societies, authority was decentralized, distributed through­out the relational map. The structure of governance was constant and stable, but flexible and diffuse; there was no sover­eign in which coercive authority might infer and thus no singular locus for a division of powers. There were, for instance, none of the centralized legal features one associates with the judicial or legislative orders of liberal, state gov­ernments - no courtrooms or legisla­tures putatively hived off from political, spiritual, or economic concerns. What implications follow when a legal order is diffuse or decentralized? Most obvi­ously, we ought not to expect to find stand-alone legal institutions, analogues of courtrooms, legislatures, or law schools. In order to understand and work with the law, instead one needs to develop an understanding of the broad­er cultural practices in which law exists.

OPICH.I: A TRANSFORMATION STORY, AN INVITATION TO ANISHINAAa.E (QJlaWI;) L,EGAL ORDER

One example is the institution of story­telling we discussed earlier. Another (which I'm hoping you'll soon approach with fresh understanding) is treaty.

Nor was there a standing executive order of government. Says Anishinaabe elder Basil Johnston: "Leadership was predicated upon persuasion; its exercise upon circumstances and need. It was neither permanent nor constant for a chief. Rather, it was temporary and intermittent as it was obtained from the physical world."24 Persons recognized as authoritative with respect to particular subject matter were identified as ogi­maa over it. 25 This was true whether in

Persons recognized as

authoritative with respect to

particular subject matter

were identified as ogimaa

over it.

politics, war, religion, hunting, etc. However the scope and breadth of ogi­maa authority was a function of an ogi­maa's ability to persuade others of the wisdom of his or her proposed course of action and of his or her capacity for judgement. Ogimaa authority was thus always contingent on the strength of their relationships with others, includ­ing non-human others.

In 1695, Anishinaabe Ogimaa Chingouabe travelled from his commu­nity on Madeline Island, western Lake Superior (today, within Wisconsin) to Montreal. Addressing Frontenac, Governor General of New France, he explained that the Fox and Mascouten had killed members of the Dakota, his people's ally, and that the Dakota now requested their assistance in a military response. Chingouabe asked Frontenac to agree on this course of action, but he refused, saying that war should be saved strictly for the Haudenosaunee.26

Chingouabe's reply betrays his cog­nizance of the tension between how

authority works in his society and in Frontenac's: "Father! it [sicl is not the same with us, as with you. When you command, all the French obey you and go to war. But I shall not be heeded, and obeyed by my nation in like man­ner. Therefore I cannot answer, except for myself and those immediately allied or related to me."27

What of legal authority specifically? Does the absence of coercive authority imply that consent is always necessary in order for a remedy to obtain? Absolutely not: remedies such as ostracism and intentional killing were rather definite. While there was no per­manent legal authority, affected parties (which are complex; for some forms of wrongdoing there existed a principle of collective liability within ALO) will assemble and discuss the wrong, attend­ing to the relation existing between the parties, and determine a remedy. The deliberative process will involve the interpretation and application of stories amongst other sources of law and par­ties may disagree about their meaning. Ultimately one perspective will prove more persuasive than others, even though not held by all and certainly not capital "T" true. To be clear, I'm not sug­gesting this is a flawless system. The Anishinaabeg are subject to the same frailties as humanity everywhere and like all legal systems, this one can be abused. Constraining the potential for abuse was the fact of a knowledge soci­ety: recall that the entire adult citizenry was educated in legal norms and in legal reasoning.

Wby Understanding Indigenous Legal Orders Matters in a Criminal Law Context

Although I've refrained from cri­tiquing either legal system, I hope that at least thus is made visible Menominee, thus Opichi. The burning question, I expect, is other than curiosity, why should you care?

My answers track the two teachings I take from the Opichi story. Thus far we've focussed on the first: the depth of

our difference, and the claim that each legal system is coherent with respect to its own cultural logic. Now we turn to the second teaching, which is that suf­fering and oppression result where one strives to force another into his or her way of being. With respect to the rela­tionship between Canada and the indigenous peoples it colonizes yet who survive as distinct peoples, the conse­quences of Menominee's bullheaded­ness should be of particular concern to the criminal bar. The record of indige­nous over-representation in jail is hor­rendous and extremely well-document­ed in numerous commissions of inquiry and in voluminous academic studies. In the recent Ipeeleff8 decision, the Supreme Court of Canada stated that based on the evidence before it, the over-incarceration of indigenous peo­ples in Canada is now "worse than ever."29

Parliament tried to address the prob­lem by modifying sentencing options available for aboriginal offenders, and these changes to the Criminal Codel° were clarified in the Supreme Court of Canada's 1999 Gladuel' decision. For our purposes, the most important state­ment from that decision is that "for many if not most aboriginal offenders, the current concepts of sentencing are inappropriate because they have fre­quently not responded to the needs, experiences, and perspectives of aborig­inal people or aboriginal communi­ties."32 Ipeelee made the Menominee­Opichi recognition more explicit still, saying "[tlhe Gladue principles direct sentencing judges to abandon the pre­sumption that all offenders and all com­munities share the same values when it comes to sentencing and to recognize that, given these fundamentally differ­ent world views, different or alternative sanctions may more effectively achieve the objectives of sentencing in a partic­ular community."33 It's my hope that an understanding of indigenous legal orders will empower criminal lawyers to more effectively advocate for their indigenous clients, bridging some of the gap in worldview for the court. Even if

FOR THE DEFENCE • VOL. 34 • NO. 3 47

OPICHI: A TRANSFORMATION STORY, AN INVITATION TO ANISHINAABE (OJIBWE) LEGAL ORDER

done flawlessly this will be no panacea, but it can only help.

However for those unconvinced by practise-oriented considerations, I have a deeper push still. Recall the last part of the second Opichi teaching, that the consequences of oppressive actions flow in myriad directions including to the oppressor. When our Supreme Court determines that the rate of incar­ceration of one group of people is worse than it's ever been and yet the rate has been consistently described as a crisis for more than two decades, what do we have? It can't be a crisis because

... the criminal bar has a

unique interest in ensuring

that the legal system that

gives it life and meaning is

in fact a just system.

that was 25 years ago. And this says nothing about the undetTepresentation of indigenous peoples on Ontario juries, with respect to which The Honourable Frank lacobucci recently said "princi­ples of justice and fairness for thou­sands of people are involved."34 Because justice is at the heart of a criminal lawyer's work, it seems to me that the criminal bar has a unique interest in ensuring that the legal system that gives it life and meaning is in fact a just sys­tem. It also seems to me that if in cer­tain respects it isn't, all are effected, not just those who represent indigenous clients. Not all will agree with me, but for those who do, the question of reme­dial action arises.

What You Can Do The most critical thing to understand,

in my view, is that the most effective contributions you can make in address­ing contemporary injustice for indige­nous peoples are not directly legal. You might consider starting by focussing on

yourself. By changing some of these things and reflecting them in conversa­tion with other legal actors, you'll have an enormous impact on the law and ultimately I believe on the over-incarcer­ation of indigenous peoples in Canada:

1) Accept that indigenous peoples, like all peoples everywhere, are not a monolith. Our cultures are different from one another and even within them we'll speak with myriad voic­es. We'll disagree with one another. It will be public. This doesn't mean we're disorganized. This doesn't mean we're incapable of solving complex problems. It means we're human.

2) Continue on your own time the process I tried to start here regard­ing understanding how Canadian law, like all legal systems, is never neutral; is always conditioned by culture. If you want a starting point for further reading, "Dispute Settlement Among the Naidanac" by Leroy Little Beac35 is a wonderful (and comical) illustration of this.

3) For those disconnected from your ancestral history, reclaim your own origin stories and migration stories and vest them with ongoing signifi­cance for your lives today. This isn't a challenge to anyone's legitimate claim to be here. As treaty people, all are empowered to be here, and this through indigenous legal orders, not Canada's exercise of colonial power. However if a critical mass of Canadians recognizes that they're nonetheless originally from elsewhere, it will become much harder for us collectively to be oblivious to Opichi - that indige­nous peoples already here had other ways of governing themselves and of being in the world. If enough of us realize this, the realization will have to matter.

4) Learn about the indigenous peoples whose traditional territory is now

48 FOR THE DEFENCE • VOL. 34 • NO. 3

your home too. Learn which treaty legitimates your presence here. If you're offended by the question, ask yourself why. At the same time, understand that you need not feel guilt about being here. From my perspective within ALO, we exist with respect to one another as treaty partners: that's our relation. It's a wonderful thing. This also appears to be the perspective of The Honourable Frank lacobucci, who in his report on indigenous underrepresentation on Ontario juries, said:

To my mind, the model relationship between the two groups should be part­ners rather than what history reveals as adversaries. First Nations do have gov­ernments, and this Independent Review has reinforced my belief in the impor­tance of emphasizing a government-to­government relationship that incorpo­rates an underlying respect for cultural, traditional, and historical values that are different. It is this government-to-gov­ernment relationship that must underlie the relationship between Ontario and First Nations going forward in dealing with justice and jury representation issues.'·

5) Accept that "reconciliation" is not a goal but a process. If ever we're to live in a relation of justice with one another, our intention cannot be to reach an end-state after which his­toric wrongs are considered resolved and we can all move for­ward as if colonization never occurred. From an Anishinaabe per­spective, reconciliation is the process of a return to right relation­ship and its ongoing maintenance. Reconciliation isn't just about apol­ogy and compensation. The primary wrong that needs righting is the undoing of our sacred relationship as treaty partners. Partners. Indigenous peoples aren't stake­holders. We're not interest groups. We're not a minority community like any other. We're unique in that

OPICHI: A TRANSFORMATION STORY. AN INVITATION TO ANISHINAABE (OJIBWE) LEGAL ORDER

we're partners with Canada and our justice claims are thus for partner­ship, not toleration.

6) Consider that you may be colo­nized, and if so what this means to you. I certainly am.

7) In 2008 the Ontario Superior Court of Justice handed down a decision in a case the facts for which posi­tioned a group of indigenous per­sons from Kitchenuhmaykoosib Inninuwug First Nation (in Northern Ontario) at the centre of two conflicting sets of legal obliga­tions: one from Canadian law and one from their Oji-Cree legal order. In a decision which refers numer­ous times to "the social contract" (but which avoids reference to the state of nature), the Court stated, "If two systems of law are allowed to exist - one for the aboriginals and one for the non-aboriginals, the rule of law will disappear and be replaced by chaos. The public will lose respe.ct for, and confidence in, our courts and judicial system.";7

Would you? Is all the world Menominee? Ask yourself whether you believe the recognition and revitalization of indigenous legal orders is a foundational justice issue for all Canadians. Since I do, what stands out most for me about this judicial statement is its prioritizing of order over justice, an ordinal ranking of values which causes me to consider seriously the foundation upon which Canada's legal system rests.

If you're willing to consider the question, it's imperative you frame it properly. The tension isn't between Canadian law today and intentional killing. It's between Canadian law today and what revi­talized indigenous legal orders could look like today. And that could be many things. But one thing that's certain is that it will be relevant to the needs of indigenous communities and citizens today.

ALO has never been static; it has always changed with changing times. Make no mistake about it, the revitalization of indigenous legal orders isn't about "going back" in time. It's about looking back, to draw strength, resources, and cre­ativity for today and for the future. Like Opichi, I believe we can trans­form into something stunning and powerful. Further, looking only at ALO, revitalization must be accom­plished in a way that respects the lines connecting us to our non­indigenous treaty partners. To fail to do so would be inconsistent with our own law. Thus making space for indigenous legal orders is not mak­ing space for the undoing of Canada."" Post-transformation, Opichi sang to his father - despite years of oppression.

If you're willing to accept even a few of these challenges, you'll be doing a lot. You'll have noticed that although I've pressed you to understand it for explanatory purposes, I haven't actually suggested that you assert law from the indigenous legal orders of your clients in your advocacy on their behalf. This is because I have grave concerns about what happens to that law when aspects of it are severed from the system that gives them meaning and are then trans­planted into another legal system. I'm worried the effect will be to colonize indigenous legal orders; that the result will be an effort to transform Opichi into Menominee. I'm not saying that this will invariably result. I'm suggesting that more work needs to be done before we can know. The Canadian Human Rights Commission has decided to go forward with bringing elements of indigenous law into Canada's legal framework. 39 I don't support this move and I'm watching carefully to see what happens. We shall see whether that institution transforms Opichi into some­thing that sings, or whether Opichi starts to sound suspiciously like Menominee.

For those willing to wait until we can

talk about how the different legal frameworks might relate to one another, there are many others working towards the revitalization of indigenous legal orders. The work is being done quickly; interest in it grows fast. Yet if you want to do something externally-focussed now, might I suggest that you help to make legal space for discussion around the revitalization of indigenous legal orders within the Criminal Lawyers' Association and beyond, and that you work to cultivate a hunger in others to know more.

Miigwec, Giminadan Gagiginonshiwan (Thanks, It's Been Great Speaking with You)

Throughout my preceding words, I've referred often to The Honourable Frank lacobucci's independent report into indigenous underrepresentation on Ontario juries. I've done so not only because it offers the most recent state­ment of the relationship between indigenous peoples and Canada's crimi­nal justice system, but because I hold a deep respect for the wisdom in its pages:o The single most striking pas­sage for me sums up so much of what I've tried to say and what I hope you're now able to bring a deeper understand­ing to bear upon:

One of the biggest challenges expressed

by many First Nations leaders and people

is with respect to the conflict that exists

between First Nations' cultural values,

laws, and ideologies regarding traditional

approaches to conflict resolution, and the

values and laws that underpin the

Canadian justice system. The objective of

the traditional First Nations' approach to justice is to re-attain harmony, balance,

and healing with respect to a particular

offence, rather than seeking retribution

and punishment. First Nations observe the

Canadian justice system as devoid of any

reflection of their core principles or val­

ues, and view it as a foreign system that

has been imposed upon them without

their consent.i1

The lacobucci Report is informed by

FOR THE DEFENCE • VOL. 34 • NO. 3 49

OPICHI: A TRANSFORMATION STORY. AN INVITATION TO ANISHINAABE (OJIBWE) LEGAL ORDER

representatives of 32 First Nations and four First Nation organizations,12 most of them Anishinaabe or Oji-Cree:' That their focus is consistently on "harmony, balance, and healing" reflects both the strength and dynamism of ALO. It reflects the ongoing centrality of rela­tionships to justice, and it reflects its tremendous capacity for change: the dissociation of retribution from justice reveals that legal-sanction of violence belongs to the past. It's no longer good law. This combination of continuity and change, of strength and growth fills me with hope and optimism that Canadians will see that celebrating ALO won't encourage Anishinaabe separation from other Canadians, but rather will empow­er us to come together. Strength and growth, I pause to note, are qualities essential to a healthy living tree.

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. It's Opichi's home, fall­en from its place to the ground. As soon as I saw it I felt a pull. There was Opichi's home, right on my front yard. And unbroken: although individually the countless and varied strands of dried grass, leaves and flower petals are frail, bound together into a circle where each is connected to all others, they're unbreakable. I found the nest lying on the grass without one strand snapped.

Now I hold the nest and through this story, now you do too. We have only to decide what to do with it.

Opichi, miigwec for singing for me today.

Miigwec, bizindawiyeg noongo Nindinawemaaganidog. Thank-you for listening to me today. All my relations.

Aaron Mills is a doctoral student (UVic). He is a Bear Clan Anishinaabe from Couchiching First Nation, Treaty #3 Territory and from

North Bay, Robinson-Huron Treaty Territory. He lives in central Victoria, Lekwungen (Songhees) Swengwhung Douglas Treaty of 1850 Territory.

NOTES: J Comments or questions are most

welcome, at amills@uvic.ca. I'm grateful to John Borrows, Robina Chair in Law, Public Policy and Society at the University of Minnesota Faculty of Law (and one of my supervisors) and to Anishinaabe-kwe elder Aldeen Starr Mason. Both kindly took time this sum­mer to encourage me to look to rela­tionships in the environment around me to guide my study. Of course the views I give voice to are my own.

2 Paul Kahn, Putting Liberalism in Its Place (Princeton University Press, 2005) at pp. 7-8.

, The Anishinaabeg are an indigenous people whose vast traditional territory spans the central and western Great Lakes and is thus split by the Canada-US border. In Canada, our territory extends from Georgian Bay and Lake Superior into northeastern Ontario and westward as far as Saskatchewan. By exonym we're known as Ojibway in Canada and Chippewa in the United States.

4 Some may challenge the necessity of this task, pointing to the domestic legal orders of other nation-states or of inter­national law as obvious examples illus­trative of our already-available capacity to recognize other legal orders as legal orders. However while at the surface these legal orders may differ significant-1y' at the level of foundations, with only minor variations Canada's conception of law is one shared throughout the Western world. It's this foundational dif­ference that I take up here and which one must take up in a comparative dis­cussion of indigenous legal orders and the legal systems of nation-states.

S Basil Johnston, Ojibway Heritage: The Ceremonies, Rituals, Songs, Dances, Prayers and Legends of the Ojibway (Toronto: McClelland & Stewart Inc., 1976) at p. 128.

6 Pine si (narrator) & William Jones

50 FOR THE DEFENCE • VOL. 34 • NO. 3

(recorder), "He Who Over-dreamed" in Truman Michelson, ed., Ojibwa Texts, Part Il, Publications of the American Ethnological Society edited by Franz Boas, Vol. VII (New York: G.E. Stechert & Co., Agents, 1919) at p. 307; Pinesi (narrator) & William Jones (recorder), "Stories About Fasting Youths" in "Ojibwa Tales from the North Shore of Lake Superior" (1916) 29(113) Journal of American Folklore. 368, 388; Joe Yellow head, "The Story of the Robin (Origin of the Robin)" in Col. G. E. LAIDLAW, "Ojibwa Myths and Tales" (1922, New Series) 1(1) Wisconsin Archaeologist. 37; Angeline Williams, Leonard Williams (ed., trans.) and John D. Nichols (ed.), The Dog's Children: Anishinaabe Texts Told by Angeline Williams (University of Manitoba Press, 1991). 24; Henry Rowe Schoolcraft, "Iadilla; or, the Origin of the Robin" in Algic Researches Compromising Inquiries Respecting the Mental Characteristics of the North American Indians, First Series: Indian Legends and Tales, Vol. 1 (New York: Harper & Brothers, 1839) at p. 221; Jacques LePique, "The Robin" in Arthur P. Bourgeois, ed., Ojibwa Narratives of Charles and Charlotte Kawbawgam and jacques LePique, 1893-1895 (Wayne State University Press, 1994) at p. 89. Although each version differs from the others, each retains the central theme of transformation from boy to robin as a means of avoiding a parental situa­tion in which the boy lacks the free­dom to pursue his own ends and ful­fil his own vision.

7 Johnston, Ojibway Heritage at p. 128.

8 Johnston, ibid at p. 129. 9 Johnston, ibid at p. 129. 10 Johnston, ibid at p. 129. JJ Johnston, ibid at p. 129. 12 Johnston, ibid at p. 129. Ll The Honourable Frank Iacobucci,

First Nations Representation on Ontario juries: Report of the Independent Review Conducted by The Honourable Frank Iacobucci (Government of Ontario,

OPICHI: A TRANSFORMATION STORY, AN INVITATION TO ANISHINAABE (OJIBWE) LEGAL ORDER

2013) at 211. Having offered this quota­tion before any other in my reference to the lacobucci Report and thus mindful of impressions it may suggest, I'm care­ful to note that Mr. lacobucci doesn't identify indigenous resistance to jury participation as the central obstacle to same.

14 In the Supreme Court of Canada's recent Ipeelee decision, the Court said "To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residen­tial schools and how that history contin­ues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of sub­stance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples": R. v. Ipeelee, 2012 CarswellOnt 4376, 91 c.R. (6th) 1, 2012 SCC 13 at 60.

15 For an artful, sustained examination of this idea, see Harold Johnson, Two Families: Treaties and Government (Saskatoon: Purich Publishing, 2007).

1(, Clifford Geertz, Local Knowledge: Further Essays in Interpretive Anthropology ·(Basic Books, Inc., 1983).

17 Tom Axworthy & Pierre Elliott Trudeau, eds., Towards a just SOCiety: The Trudeau Years (Penguin Books, 2000) at p. 407.

IH By speaking of Anishinaabe legal order in the past tense, I'm not saying that it no longer exists. Much to the contrary, there are many ways in which it continues today, in some places more than in others, and Anishinaabe legal knowledge is held by many. However as a public system governing human conduct, it has been forcibly displaced by Canadian and American legal systems. It is this public function and authority which is in many ways dormant today. It is this public dormancy and the nega­tion of the colonial norms that sustain it which I reference when I speak of the "revitalization" of indigenous legal orders.

19 A windigo is a spirit that comes to be within a person which causes the

person to behave in harmful ways, ulti­mately resorting to cannibalism. It's often associated with winter and with giant stature. There are many stories of windigo within Anishinaabe oral tradi­tion. The windigo was a focal point of early anthropological work in Anishinaabe communities.

20 Darlene Johnston, "Aboriginal Traditions of Tolerance and Reparation: Introducing Canadian Colonialism" in Micheline LaBelle, Rachad Antonius & Georges LeRoux, Eds., Le devoir de memo ire et les politiques du pardon (Presses de l'Universite de Quebec, 2005) at pp. 156-157.

21 Those wanting to better understand this important element of ALO are directed to Bruce M. White, "'Give Us a Little Milk': The Social and Cultural Meanings of Gift Giving in the Lake Superior Fur Trade" (1982) 48(2) Minnesota History, 60, and Cary Miller, "Gifts as Treaties: The Political Use of Received Gifts in Anishinaabeg Communities, 1820-1832" (2002) 26(2) American Indian Quarterly, 221.

22 Story is just one source of law with­in ALO. For some others see the typolo­gy John Borrows presents in "Sources and Scope of Indigenous Legal Traditions", in Canada's Indigenous Constitution (Toronto: University of Toronto Press, 2010), p. 23.

23 Marcel Mauss, The Gift: the Form and Reason for Exchange in Archaic Societies (W. D. Halls, trans., W. W. Norton & Company, Inc., 2000 [original­ly published 1923]) at p. 3, 79.

24 Johnston, Ojibway Heritage at p. 61. 25 For a scholarly examination of the

institution of ogimaag, see Cary Miller, Ogimaag: Anishinaabeg Leadership, 1760-1845 (University of Nebraska Press, 2010).

26 Edward D. Neill, "History of the Ojibways, and their Connection with Fur Traders, Based Upon Official and Other Records" in Collections of the Minnesota Historical Society, Volume V (Saint Paul: Minnesota Historical Society, 1885) at pp. 420-421.

27 Neill, "History of the Ojibways", at

421-422. 2R R. v. Ipeelee, supra note 14. 29 R. v. Ipeelee, supra note 14. 30 Criminal Code, R.s.c. 1985, c. C-46,

Part XXIII, s. 718.2(e). 31 R. v. Gladue, 1999 CarswellBC 778,

1998 CarswellBC 779, 23 c.R. (5th) 197, [1999] 1 S.c.R. 688.

32 R. v. Gladue, ibid at 73; repeated in R. v.lpeelee, supra note 14 at 74.

33 R. v. Ipeelee, supra note 14 at 74. 31 lacobucci, supra note 13 at 351. 35 Leroy Little Bear, "Dispute

Settlement Among the Naidanac", in Richard F. Devlin, ed., Canadian Perspectives on Legal Theory (Toronto: Emond Montgomery Publications Ltd., 1991). 341-349.

36 lacobucci, First Nations Representation on Ontario juries at 356.

37 Platinex Inc. v. Kitchenuhmay­koosib Inninuwug First Nation, 2008 CarswellOnt 1421, 2008 WL 726951 (Ont. S.C.].), at 44.

3R This is the great irony of coloniza­tion: this is in fact only a concern inso­far as the Anishinaabeg are forced to conceive of and articulate their legal interests within rights discourse.

.'9 An Act to Amend the Canadian Human Rights Act, 2008, c. 30, s. 1.2, which refers to "First Nations legal tradi­tions and customary laws."

40 With one exception, being where he speaks approvingly of "moving towards the integration of First Nations principles and values into the justice system" (Iacobucci, First Nations Representation on Ontario juries at 223). Again, my view is that the way forward must bring both systems into dialogue with one another, not hive off elements of one system of law for inclusion within the other. It wasn't clear to me here what precisely Mr. lacobucci intended, but on my reading the context of the excerpted quotation suggests the latter.

41 lacobucci, supra note 13 at 210. 42 lacobucci, supra note 13 at 19. 43 lacobucci, supra note 13 at pp. 151-

152.

FOR THE DEFENCE • VOL. 34 • NO. 3 51

FOR~ President Norm Boxall

Vice Presidents Tom Bryson Joseph Di Luca Andras Schreck

Treasurer

FENCE

Anthony Moustacalis

Secretary Heather Pringle

Assistant Secretary Constance Baran-Gerez

Executive Director Anthony Laycock

Editors Breese Davies Seth Weinstein

Photo Editor Phil Brown

Past Editors Gregory Lafontaine Harold Levy Michael Lomer David Schembrucker

All photos by phi! Brown unless otherwise credited.

Criminal Lawyers' Association 189 Queen St, K, Suite 1 Toronto, Ontario M5A 1 S2 Tel: 416-214-9875 Fax: 416-968-6818 E-mail: anthony@criminallawyers.ca www.criminallawyers.ca

For non-association members, subscription information can be obtained by contacting customer service at www.carswell.com/email or by phone at 416-609-3800 (in Toronto) or 1-800-387-5164 or by fax at 1-416-298-5082. The Criminal Lawyers' Association Newsletter is published by Carswell. The opinions expressed in the CLA newsletter are those of the authors and do not represent the views of the CLA or its directors or its members. Submissions are welcome and should be directed to the Executive Director, Anthony Laycock, at 189 Queen St. E., Suite 1, Toronto, Ontario M5A 1S2. Tel: 416-214-9875 E-mail: anthony@criminallawyers.ca. For advertising inquiries, please call l'.1ichael Murton at 416-323-9991 or murton@murtonco.com. Published by Carswell, a Thomson Reuters business Customer No.40065782 Canada Post Publications Agreement Number 1682169

CARSWELL®

CRIMINAL LAWYERS' ASSOCIATION NEWSLETTER VOL. 34, NO. 3

President's Message

Editor's Notebook

Legal Aid Update

FEATURES

E

An Embarrassing Legacy of Under-Representation on Juries

2

3

4

by Jessica Orkin 7

The Criminalization of Aboriginal Protests in Recent History and Implications for Sovereignty Summer by Tia Dafnos and Shiri Pasternak 15

United States of America v. Leonard: Why Gladue Principles Matter in Extradition by Erin Dann 24

Efforts at Understanding (with thanks to my Mr. Miyagi) by Meaghan Daniel 31

The Rule of Law: In the Eye of the Beholder by Robert Lovelace 35

Opichi: A Transformation Story, an Invitation to Anishinaabe (Ojibwe) Legal Order by Aaron Mills 40

COLUMNS

The Docket

Member Profile: Kirk Makin

COVER PHOTO by Scott Benesiinaabandan.

Scott Benesiinaabandan is an Anishinabe intermedia artist that works primarily in photography, printmaking, and video. Scott has recently completed an international residencies at Parramatta Artist Studios in Australia (2012), Context Gallery in Derry, North of Ireland (2010) and most recently been awarded the University Lethbridge/Royal Institute of Technology iAIR residency 2013. He is currently in

Montreal, having recently completed a year-long Canada Council New Media Production grant through OBx Labs/ Ab-tech and Concordia. Benesiinaabandan has taken part in several group exhibitions across Canada and the United States, most notably in Harbourfront's Flatter the Land/Bigger the Ruckus (2006), Subconscious City at the Winnipeg Art Gallery (2008) and with more recent solo exhibitions, unSacred, at Gallery 1C03 ( 2011) and in Sydney, Mii Omaa Ayaad/Oshiki Inendemowin (2012). In September 2013 Benesiinaabandan will take part in Ryerson Image Centre's Ghost Dance exhibition.

FOR THE DEFENCE • VOL. 34 • NO. 3

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