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Proquest Dissertations University of Alberta The Wetiko (Windigo) Legal Principles: Responding to Harmful People in Cree, Anishinabek and Saulteaux Societies - Past, Present and Future Uses, with a Focus on Contemporary Violence and Child Victimization Concerns by Hadley Louise Friedland A thesis submitted to the Faculty of Graduate Studies and Research in partial fulfillment of the requirements for the degree of Master of Laws Faculty of Law ©Hadley Louise Friedland Fall, 2009 Edmonton, Alberta Permission is hereby granted to the University of Alberta Libraries to reproduce single copies of this thesis and to lend or sell such copies for private, scholarly or scientific research purposes only. Where the thesis is converted to, or otherwise made available in digital form, the University of Alberta will advise potential users of the thesis of these terms. The author reserves all other publication and other rights in association with the copyright in the thesis and, except as herein before provided, neither the thesis nor any substantial portion thereof may be printed or otherwise reproduced in any material form whatsoever without the author's prior written permission. ii Library and Archives Bibliotheque et 1*1 Canada Archives Canada Published Heritage Direction du Branch Patrimoine de I'edition 395 Wellington Street 395, rue Wellington Ottawa ON K1A 0N4 OttawaONK1A0N4 Canada Canada Your Tile Votre reference ISBN: 978-0-494-55729-7 Our file Notre reference ISBN: 978-0-494-55729-7 NOTICE: AVIS: The author has granted a non­ L'auteur a accorde une licence non exclusive exclusive license allowing Library and permettant a la Bibliotheque et Archives Archives Canada to reproduce, Canada de reproduire, publier, archiver, publish, archive, preserve, conserve, sauvegarder, conserver, transmettre au public communicate to the public by par telecommunication ou par I'lnternet, preter, telecommunication or on the Internet, distribuer et vendre des theses partout dans le loan, distribute and sell theses monde, a des fins commerciales ou autres, sur worldwide, for commercial or non­ support microforme, papier, electronique et/ou commercial purposes, in microform, autres formats. paper, electronic and/or any other formats. The author retains copyright L'auteur conserve la propriete du droit d'auteur ownership and moral rights in this et des droits moraux qui protege cette these. Ni thesis. Neither the thesis nor la these ni des extraits substantiels de celle-ci substantial extracts from it may be ne doivent etre imprimes ou autrement printed or otherwise reproduced reproduits sans son autorisation. without the author's permission. In compliance with the Canadian Conformement a la loi canadienne sur la Privacy Act some supporting forms protection de la vie privee, quelques may have been removed from this formulaires secondaires ont ete enleves de thesis. cette these. While these forms may be included Bien que ces formulaires aient inclus dans in the document page count, their la pagination, il n'y aura aucun contenu removal does not represent any loss manquant. of content from the thesis. 1+1 Canada ...what if no lost child can be replaced? Emil Fackenheim Examining Committee Dr. Val Napoleon, Law Dr. Moin Yahya, Law Dr. John Borrows, Law, University of Victoria Dr. Brenda Parlee, Native Studies and Agriculture, Life and Environmental Sciences in Dedication To Nina Louise, whom I knew as a fiercely intelligent, inquisitive, and irrepressible thirteen-year old, and who is now beyond all harm. And to Peacha, who continues to teach me about protection, courage and compassion. To my own children: Davita and Asher. You are the lights and delights of my life. To my many wonderful nieces and nephews, and all the adults who love them. And to the children and youth I have worked with over the years, and all the adults who love them too. iv Abstract: A pressing contemporary issue within Indigenous communities is the frightening rates of internal violence and child victimization. How do we speak about the unspeakable? How do we protect those who we love, from those we love? This thesis explores possible answers to these questions within Cree, Anishinabek and Saulteaux legal traditions, as described in wetiko (windigo) stories and accounts. First, I examine the existing academic and legal literature alongside Cree oral information and conclude the wetiko is best understood as a complex legal concept, or categorization. I then demonstrate the similar thinking and theorizing around the dynamics of wetikos and offenders in cases of child victimization. Next, I outline the legal principles that emerge from a legal analysis of wetiko stories and accounts. Finally, I discuss possible future directions for and barriers to applying these legal principles to issues of violence and child victimization today. v Preface: This thesis is really a thought experiment. In it, I take stories seriously, as a means of expression, as a form of reasoning, and as normative resources. For this reason, I begin and end with an original story, in which I use a wetiko as a metaphor to capture the current predicaments of child victimization within Indigenous communities. I also take common-law legal reasoning and analysis seriously. I apply these intellectual tools to create a framework for thinking about the wetiko stories in terms of legal principles. In the end, I believe these two ways of thinking compliment each other and can be combined to develop new insights and ideas in law. I am aware I am combining things that are not usually combined, and that the conclusions I reach are just possibilities. The effort put into this thought experiment simply asserts that there are identifiably legal resources within Indigenous societies, and that, in the fraught and urgent area of violence and child victimization within Indigenous communities, such possibilities are worth exploring. VI Acknowledgements: Many thanks to my supervisor, who pressed my thinking, shored up my spirit, encouraged my ideas and fed me soup, often all at once, and for the inspiration and support provided by my committee. I am grateful for the many enriching and enlightening conversations about topics related to this thesis with family, friends and colleagues. This thesis would not be what it is without Karen Ameyaw, Dana Antaya-Moore, Collette Arcand, J.D. Crookshanks, Liz Greenaway, Jennifer Haslett, Fiona Kelly, Tim Kelly, Kenny McDonald, Tina Pysemany, Kendall Stavast and Joana Thackery. I am also grateful to the elders and other community members who agreed to be interviewed, for their openness, advice and endless patience explaining things to me. I owe a substantial debt to Nathan Carlson, who generously shared his time and research on the wetiko concept. Many thanks also go to Jeremy Webber, for paving the way for these ideas through his own work, and for always being willing to discuss and nurture new ideas and insights. Carol Wanyandie's clear, principled and compassionate thinking has had an incredible influence on my own. Jodi Stonehouse's insights and encouragement pushed this project forward. Kerry Sloan's thorough reading of the text and valuable suggestions helped develop the final draft and Jess Friedland's precision and attention to detail refined it. Thank you all. Finally, a special thank-you must go to my Mom, without whose support this project would not have been possible, and my children again, Davita and Asher, for their patience during LLM madness and for ensuring I keep perspective - always. VI1 Table of Contents Story #1: Sweet Dirt 1 Chapter 1: Introduction and Methodology 11 Chapter 2: The Wetiko as a Legal Concept or Category 21 Chapter 3: Understanding the Dynamics: The Wetiko and Child Victimization 54 Chapter 4: The Wetiko Legal Principles 82 Chapter 5: Future Directions in Wetiko Law 123 Story #2: Beyond Sweet Dirt 127 Bibliography 132 Appendix 1 139 Appendix 2 144 Vlll Sweet Dirt All sorrows can be borne if you can put them into a story. Up in the mountains there was a small community. Now, for many years, people came and went when they wanted, as they wished. Sometimes the families came together for months, to visit around and tell stories, to dance, to laugh and tease each other. Once in a while, one or two might even fall in love. Other times, families would head out trapping, curl up around the fire, walk all day and fall asleep exhausted at night. In those times, when a visitor came, it lit up the night, and when no one was around, the soft comfort of those you knew well from birth surrounded you like snow on the landscape. Rarely, but memorably, this routine would be broken by the arrival of another family, seeking help and medicines for someone who had fallen ill, or who had became a wetiko during the long winter. Sometimes, someone would know the right medicine and the prayers would work, and other times, a death would rend all continuity for awhile. Time went on and the ravenous people who had spread throughout the lakes and plains below grew hungry again. They travelled up to the mountains seeking coal, and, finding it, promised they would not bother the mountain people as they satisfied their terrible appetites. The mountain people agreed to let the ravenous ones live among them, but quickly, as they had been warned by relatives and friends from farther away, the ravenous people multiplied and settled there. Promises were made and settlements built. In time, the mountain people came to learn that the ravenous people were both good and bad, both harsh and kind, just as among their own people. The only thing that distinguished them was their immobility and their unending appetite for accumulation. Isak Dinesen, as cited in Hannah Arendt, The Human Condition (Illinois: University of Chicago Press, 1958) at 175. 1 Soon, a curious thing began to occur.
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