INDIGENOUS LEGAL TRADITIONS: LAW 1530
Instructor: Prof. Karen Drake Email: [email protected] (Please do not email/message me through Desire 2 Learn as I will not be checking it regularly) Phone: (807) 346-7804 Office: 1004 D Office Hours: Tuesdays from 2 pm – 4 pm, or email me to make an appointment
1 COURSE INFORMATION
1.1 COURSE DESCRIPTION
This course examines the legal traditions of some Indigenous nations, specifically the Anishinabe and Métis nations, given our presence within the traditional territory of the Anishinabe and within the homeland of the Métis. There is a burgeoning movement seeking to identify, revitalize, and apply Indigenous laws and legal principles. This course prepares you to participate in and contribute to that movement in your careers as lawyers, judges, policy-makers, leaders within Indigenous nations, leaders within the Canadian state, and as informed, engaged citizens.
1.2 COURSE OBJECTIVES
This course will provide you with the resources to:
(1) identify Anishinabek and Métis legal principles from within an Anishinabe or Métis perspective, and begin to see how those legal principles interrelate to form worldviews;
(2) analyze legal problems faced by the Anishinabe or by the Métis, by applying relevant Anishinabek and Métis legal principles to novel fact scenarios;
(3) critically evaluate the legal and normative foundation of Canada’s assertion of sovereignty over Indigenous peoples and Indigenous territories;
(4) comprehend the effects of centuries of attempted cultural genocide on Indigenous legal traditions;
(5) analyze the challenges and potential limitations involved in identifying and working with Indigenous legal knowledge;
(6) develop a conceptual framework for understanding non-state, decentralized legal orders; and,
(7) foster an environment of integrity and professionalism. This involves engaging in meaningful discussion of sometimes highly sensitive issues in a mutually respectful way.
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1.3 CLASS TIMES AND LOCATION, AND ATTENDANCE
Attendance in this course is mandatory. This rule is enshrined in Regulation Seven of the Faculty of Law’s Academic Regulations, but there is also a more substantive rationale in support of mandatory attendance in this course: you must be present and engaged in class in order for us to be able to fulfill our responsibilities to each other. This rationale is discussed in more depth in section 1.4.1 below.
For Section A, classes take place on Tuesdays from 9:00 am – 10:15 am and Thursdays from 10:30 am – 11:45 am in room 3008 or room 3007.
For Section B, classes take place on Tuesdays from 10:30 am – 11:45 am and Thursdays from 9:00 am – 10:15 am in room 3008 or room 3007.
1.4 EVALUATION
Mode of Evaluation* Weight Date 1. Participation 20% Each class
2. Talking Circle 30% October 20 or 22
3. Final Exam 50% During the December exam period (December 9-19)
*Note that the requirement of a mid-term exam pursuant to Lakehead University’s regulations has been waived for this course by the Dean of the Faculty of Law. The same holds true of the requirement that a certain percentage of a student’s grade be provided prior to the deadline for withdrawing from courses.
1.4.1 Participation
Your participation is vital to the success of this course. The emphasis placed on participation, and the high percentage of the grading scheme devoted to participation, is a reflection of the Anishinabek principles (and to the extent that they incorporate Anishinabek principles, the Métis principles) that we will be discussing in this course. As we will learn, participation does not mean merely doing the readings and being able to recall them in class. It means connecting to one another in a way that allows you to share your gifts, while simultaneously ensuring you benefit from the gifts of others. In other words, participation does not mean talking as much as possible during class; more is not necessarily better. Rather, participation requires each one of us to fulfill our responsibilities to help each other engage with the material and ideas in the course.1
1.4.2 Talking Circle
Students will be divided into two groups of 15. One group will conduct their talking circle in class on October 20. The other group will conduct their talking circle in class on October 22. Each group will be provided with a hypothetical fact scenario involving an Anishinabe
1 I am indebted to Aaron Mills for this articulation of the significance of class participation within Anishinabe pedagogy. 2 INDIGENOUS LEGAL TRADITIONS – FALL 2015
community dealing with various legal issues. Each group will be asked to provide a resolution to these issues by applying Anishinabe stories and legal principles to their hypothetical fact scenario and by using a talking circle, including the traditional Anishinabek talking circle protocols that we will practise in class.
During each of these classes (October 20 and 22), the members of the group that is not conducting a talking circle will serve as witnesses to the talking circle, and will have specific responsibilities to fulfill as witnesses.
A detailed grading rubric for this assignment, as well as the membership of the groups, will be provided on September 24, 2015.
1.4.3 Final Exam
The final exam will be a limited open book exam. All topics and material covered in the course are examinable. You will be allowed to bring into the examination room hard copies of the Course Book and the two required texts by John Borrows, as well as your notes and outlines, all of which may be tabbed and highlighted and may include marginal notes. Electronic devices may not be used during the exam.
The exam will consist of one or more hypothetical fact scenarios. You will be asked to apply the relevant Indigenous laws, namely either Anishinabek or Métis laws, to the fact scenarios in the exam. In other words, the exams will require you to engage in a legal analysis by employing either Anishinabek or Métis legal principles.
Please note that deferrals of examinations are provided for in the Faculty of Law Regulations and are made by the Dean’s Office. Deferrals of examinations are not made by individual instructors.
1.5 MATERIALS AND COURSE CONTENT
Required Readings:
Indigenous Legal Traditions Course Book
John Borrows, Canada’s Indigenous Constitution
John Borrows (Kegedonce), Drawing Out Law: A Spirit’s Guide
I am deeply grateful to Aaron Mills for bringing many of the following readings to my attention and for sharing with me his vision of Anishinabe constitutionalism, which we will draw out from these readings, especially those listed for September 17 and 22.
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DATE READINGS Page # in Course Book Laptop vs hand-written notes
Sept. 9 The following reading is recommended but not required: ---
Pam A Mueller and Daniel M Oppenheimer, “The Pen is Mightier Than the Keyboard: Advantages of Longhand Over Laptop Note Taking” available online at http://pss.sagepub.com/content/early/2014/04/22/0956797614524581.a bstract
Why study Indigenous laws and legal traditions?
Sept. 9 Canadian Bar Association Resolution 13-03-M re “Indigenous Legal Traditions” 1 [14 pages] Truth and Reconciliation Commission of Canada, Calls to Action 5 (2015) § See Calls to Action #27 and #28
Basil Johnston, “Is That All There Is? Tribal Literature” (Spring 1991) 7-10 128 Canadian Literature 54 at pp 7-10 John Borrows, Canada’s Indigenous Constitution, at pp 6-11 ---
Sources of Indigenous laws
Sept. 15 John Borrows, Canada’s Indigenous Constitution --- • “Retroduction” at pp 3-5 [38 pages] • Chapter Two at pp 23-58
Please note that we are reading Chapter Two in order to gain a general overview of some different sources of Indigenous law. It is not necessary to read Chapter Two in extensive detail.
Anishinabek laws
Sept. 17 Creation Stories
[27 pages] John Borrows, Canada’s Indigenous Constitution --- § Anishinabek legal traditions at pp 77-84 Basil Johnston, “Is That All There Is? Tribal Literature” (Spring 1991) 10-11 128 Canadian Literature 54 § Creation story at pp 10-11
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Basil Johnston, Ojibway Heritage (Toronto: McClelland and Stewart, 17 1976) § Chapter One: “The Vision of Kitche Manitou”
Edward Benton-Benai, The Mishomis Book: The Voice of the Ojibway 21 (Minneapolis: University of Minnesota Press, 2010) § Chapter Five: “The Great Flood”
Anishinabe Political Community: Interdependence, Responsibility, and the Gift
Basil Johnston, “Is That All There Is? Tribal Literature” (Spring 1991) 12 128 Canadian Literature 54 § The Hunter and the Fox at pp 12-13
William Jones and Truman Michelson, eds, Ojibwa Texts, Part I 27 (Leyden: E J Brill, Limited, 1917) § “Nanabushu and the Woodpecker” at p 423
William Jones and Truman Michelson, eds, Ojibwa Texts, Part II (The 29 Arbor Press, Inc, 1919) § “The Mink and the Marten” at p 127
Patronella Johnston, Tales of Nokomis (Okemos, Michigan: The 32 Nokomis Learning Center, 1994) § “The Legend of the Oriole” at p 59 § Illustration by Francis Kagige
Jacques LePique, “Aitkin and the Ojibwa”, in Arthur P Bourgeois, ed, 37 Ojibwa Narratives of Charles and Charlotte Kawbawgam and Jacques LePique, 1893-1895 (Wayne State University Press, 1994) at p 131
Sept. 22 All My Relations and Community Governance
[37 pages] John Borrows, Canada’s Indigenous Constitution --- § “Living Law on a Living Earth” at pp 239-48 F G Speck, ed, Myths and Folk-lore of the Timiskaming Algonquin and 40 Timagami Ojibwa (Ottawa: Government Printing Bureau, 1915) § “Beaver Gives a Feast” at p 53
Patronella Johnston, Tales of Nokomis (Okemos, Michigan: The 42 Nokomis Learning Center, 1994) § “Spring in the Forest” § Illustration by Francis Kagige
Arthur Solomon, “Notes on the Philosophy of an Indian Way School”, 46 in Michael Posluns, ed, Songs for the People: Teachings on the Natural Way (NC Press Limited, 1990) at p 98
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Gary Potts, “The Land Is the Boss: How Stewardship Can Bring Us 50 Together” in Diane Engelstad & John Bird, eds, Nation to Nation: Aboriginal Sovereignty and the Future of Canada (House of Anansi Press Limited, 1992) at p 35
Charles Nelson, “‘Protection’ Conflicting with Anishinaabe Rights” in 54 Jill Oakes, Rick Riewe, and Kathi Kinew, eds, Sacred Lands: Aboriginal World Views, Claims, and Conflicts (Art Design Printing Inc, 1998) at p 143
Treaty Relationships
Leanne Simpson, “Looking after Gdoo-naaganinaa: Precolonial 56 Nishnaabeg Diplomatic and Treaty Relationships” (2008) 23:2 Wicazo Sa Review 29
John Borrows, Canada’s Indigenous Constitution --- § “Aboriginal Land and Resources: Aboriginal to Aboriginal Relations” at pp 129-132
What happened to Indigenous Laws?
Sept. 24 John Borrows, Canada’s Indigenous Constitution, at pp 12-22 ---
[20 pages] (1) Conquest?
Two Row Wampum Belt 71
Covenant Chain Wampum Belt 72
Twenty Four Nations Wampum Belt 73
The Royal Proclamation, October 7, 1763 (excerpt) 74
John Borrows, “Wampum at Niagara: The Royal Proclamation, 77 Canadian Legal History, and Self-Government” in Michael Asch, ed, Aboriginal and Treaty Rights in Canada: Essays on Law, Equality, and Respect for Difference (Vancouver: UBC Press, 1997) at pp 155-65
Tom Flanagan, First Nations? Second Thoughts, 2nd ed (Montreal & 88 Kingston: McGill-Queen’s University Press, 2012) § Chapter Two at pp 20-26
Sept. 29 (2) Cession (Treaties)?
[27 pages] Treaty Nine 98
John S Long, Treaty No. 9: Making the Agreement to Share the Land 106 in Far Northern Ontario 153 in 1905 (Montreal & Kingston: McGill- Queen’s University Press, 2010)
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§ Excerpt from Chapter 23 at pp 329-43
Robinson Superior Treaty 128
Report of William Robinson in Alexander Morris, The Treaties of 131 Canada with the Indians (Toronto: Belfords, Clarke & Co, Publishers, 1971) at pp 16-21
Oct. 1 (3) Discovery and Occupation?
[27 pages] Johnson and Graham’s Lessee v William M’Intosh (1823), 21 US 543 139 (USSC)
Tom Flanagan, First Nations? Second Thoughts, 2nd ed (Montreal & 146 Kingston: McGill-Queen’s University Press, 2012) § Chapter 3 at pp 27-47
(4) Prescription?
Anishinabe Constitutionalism, Governance, and the Sugar Bush – Guest Talk by Damien Lee and Jacob McKay
Oct. 6 Claxton, Nickolas Xumthoult, "ISTA SCIANEW, ISTA SXOLE 'To 172 Fish as Formerly': The Douglas Treaties and the WSANEC Reef-Net [35 pages] Fisheries," in Leanne Simpson, ed, Lighting the Eighth Fire: The Liberation, Resurgence, and Protection of Indigenous Nations (Winnipeg: ARP Books, 2008) 47-58
Ladner, Kiera, "Governing in an Ecological Context: Creating an 181 AlterNative Understanding of Blackfoot Governance" (2003) 70 Studies in Political Economy 125
Oct. 8 Class is cancelled in order to accommodate our visit to the sugar bush on Oct. 22.
Oct. 12-16 FALL READING WEEK
Talking Circle Assignments
Oct. 20 Talking Circle ---
Oct. 22 Talking Circle ---
Visit the sugar bush at Fort William First Nation in the afternoon; --- bus leaves the law school at 12 noon.
Colonialism and the suppression of Indigenous laws
Oct. 27 John J Borrows and Leonard I Rotman, eds, Aboriginal Legal Issues: 209 Cases, Materials, and Commentary, 4th ed (Canada: LexisNexis,
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[58 pages 2012) with many § “The Indian Act and the General Challenge to Aboriginal photos. Governance” at pp 47-51 Note that the Truth and Reconciliation Commission, Canada, Aboriginal Peoples, 216 readings and Residential Schools: They Came for the Children (Winnipeg: for the next Library and Archives Canada, 2012) class are • Introduction and Chapter 1 at pp 1-20 shorter • Chapter 2 at pp 21-53 than usual.]
Oct. 29 Hadley Friedland, The Wetiko (Windigo) Legal Principles: Responding 274 to Harmful People in Cree, Anishinabek and Saulteaux Societies – [15 pages] Past, Present and Future Uses, with a Focus on Contemporary Violence and Child Victimization Concerns, (reproduced and distributed with permission of the author) • Story: Sweet Dirt, at pp 1-10 • Story: Beyond Sweet Dirt, at pp 129-33
How can we address the challenges involved in identifying Indigenous laws?
Nov. 3 John Borrows, Canada’s Indigenous Constitution at pp 137-49 ---
[32 pages] Val Napoleon and Hadley Friedland, “The Inside Job: Engaging with 290 Indigenous Legal Traditions Through Stories” in Tony Lucero and Dale Turner eds, Oxford Handbook on Indigenous People’s Politics, forthcoming (reproduced and distributed with permission of the authors) at pp 1-24
Anishinabe Law Today
Nov. 5 John Borrows, Drawing Out Law: A Spirit’s Guide --- [69 pages] • Scrolls One to Four
Nov. 10 John Borrows, Drawing Out Law: A Spirit’s Guide --- [48 pages] • Scrolls Five to Eight
Nov. 12 John Borrows, Drawing Out Law: A Spirit’s Guide --- [41 pages] • Scrolls Nine to Eleven
Nov. 17 John Borrows, Drawing Out Law: A Spirit’s Guide --- [46 pages] • Scrolls Twelve to Fourteen
Nov. 19 John Borrows, Drawing Out Law: A Spirit’s Guide --- [15 pages] • Scrolls Fifteen and Sixteen
Métis legal principles and institutions
Nov. 24 John Borrows, Canada’s Indigenous Constitution, at pp 86-91 ---
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[38 pages] Alexander Ross, The Red River Settlement: Its Rise, Progress and 312 Present State (Edmonton: Hurtig Publishers, 1972) at pp 242-74
Nov. 26 Adam Gaudry, Kaa-tipeyimishoyaahk - ‘We are those who own 343 ourselves’: A Political History of Métis Self-Determination in the [41 pages] North-West, 1830-1870 (unpublished; reproduced and distributed with permission of the author) • Abstract at pp 3-4 • Chapter 6 at pp 207-210; 215; 221-29; 238-48 • Chapter 8 at pp 291-95 • Chapter 9 at pp 316-21
Manitoba Act, 1870 413
What is law? Are Indigenous laws ‘law’?
Dec. 1 Review John Borrows, Canada’s Indigenous Constitution at p 12 ---
[29 pages] Lon L Fuller, “Human Interaction and the Law” (1969) 14 Am J Juris 378 1 at pp 1-13
Jeremy Webber, “Legal Pluralism and Human Agency” (2006) 44 391 Osgoode Hall LJ 167 at pp 167-182
Review for Exam
Dec. 3 Review for Exam ---
2 IMPORTANT RESOURCES
Some of the topics and readings addressed in this course have the potential to trigger emotional and psychological distress. The following are some resources available to provide assistance:
Thunder Bay Crisis Response Service (807) 346-8282, 1-888-269-3100 http://thunderbay.cmha.ca/programs_services/crisis-response-service/#.UflZtBbvzs0 This is a 24-hour, seven day a week crisis response telephone line.
Ontario’s Mental Health Helpline 1-866-531-2600 http://www.mentalhealthhelpline.ca Provides 24-hour free, confidential and anonymous support and information.
Lakehead University’s Student Health and Counseling Centre (807) 343-8361 University Centre 1007
INDIGENOUS LEGAL TRADITIONS – FALL 2015 9 https://www.lakeheadu.ca/faculty-and-staff/faculty-resources/helping-students/distress
Lakehead University’s Aboriginal Cultural and Support Services Regional Centre 0002, (807) 343-8085, [email protected] https://www.lakeheadu.ca/current-students/student-services/tb/aboriginal-services
In case of an emergency, call 911.
3 LAKEHEAD UNIVERSITY AND FACULTY OF LAW REGULATIONS AND POLICIES
Students have a responsibility to familiarize themselves and comply with the rules, regulations, and policies of the University and of the Faculty of Law. Students should pay particularly close attention to the following paragraph from the Faculty of Law’s Academic Regulations:
By registering at the Faculty of Law students accept that they have joined the legal profession community and as such, are bound to conduct themselves in a manner reflective of the academic, professional and ethical expectations/standards of the legal education program and the practice of law.
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