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. INDIGENOUS LEGAL TRADITIONS – FALL 2015 1 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. INDIGENOUS LEGAL TRADITIONS – FALL 2015 3 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 4 INDIGENOUS LEGAL TRADITIONS – FALL 2015 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