People and Language
Anishinabek (also called Ojibway, Chippewa, Odawa, Potawatomi, Ojibway or Saulteaux) are Algonkian-speaking people who collectively refer to themselves as Anishinabek, which means “people” or “good people.”
Symbol of the Anishinabek
Territory

Anishinabek live around the upper Great Lakes and on the prairies to the north-east of the Lakes. Historically, the Anishinabek lived in communities as clans organized in a loose confederacy more recently called the Council of the Three Fires. Many still live in mixed Three Fires communities in their ancient homelands.

Anishinabek distribution around 1800

Image result for anishinaabe territory
Legal Organization

Totemic (Clan) System

The totem (clan) is the foundation of Anishinabek law and enables allocation of resources among the clans. Each family has a totem, which is a symbol from nature, that is conveyed through the male line. Marriage is not normally permitted within the same totem. A person’s totem creates reciprocal rights and obligations between members of the same clan and those of different clans. For instance, members of the same totem who travel through their Three Fires territory have reciprocal rights and obligations toward clan members situated hundreds of miles away.

Rights and Obligations

Anishinabek law recognizes the rights and obligations of individuals and groups (notably clans and family units) toward nature and society. Obligations toward nature are based on the concept of stewardship (Bimeekumaugaewin) that requires respect for the land, plants, people and animals. Three basic principles of stewardship are the following:

Three basic principles of Stewardship

Principle Method of Enforcement
Recognition of the Creator (Gaamiinigooyang) Stories and ceremonies support and reinforce one’s relationship to the Creator, which is essential to one’s relationship to creation.
Realization of the Creator’s vision (Bimeekumaugaewin) Stories help to understand the Creator’s vision, and thereby partake in the creative process (Gikinoo’amaadiwin). More specifically, they help to understand how people should relate to and respect plants, animals and minerals and how to live a good life in peace and friendship with other creatures.
Accountability (Gawayakochigewin) Stories communicate the notion that every being will face the consequences of their actions. Ceremonies such as pipe smoking, dancing, feasting or singing can confirm the performance of obligations or ratify legal relationships and express human or divine approbation. Disapprobation (Tubuhumahgawin) is expressed for failing to perform one’s obligations.

As a general rule, rights and obligations are correlative. For instance, because people benefit from the use of rocks, they have a correlative obligation toward them (see the sections entitled “Agency and Consent” and “Property and Trust”).

Anishinabek law also recognizes social obligations. For instance, when Anishinabek people meet, they traditionally ask one another:

    • What is your totem? (Weanaesh k’dodem?)
    • What do you do for a living? (Ahniish aen-anookeeyin?)

A person’s totem and profession not only indicates their clan affiliation but also their rights and obligations (Daebinaewiziwin). Anishinabek peoples have filial obligations (Daebizitawaugaewin) toward their family, their clan and their band, whom they must support.

Resource Management

The band plays a central role in the management of resources. It owns the goods on which its members subsist, as well as the right to harvest wild animals, fruits and fish.

The band allocated these rights to its members by assigning territories to families to harvest goods. Rights to harvest the scarcest vital goods–hunting animals in the winter–were assigned to small groups as an exclusive right within a specified territory. Rights to more abundant goods, such as maple sugar and fish, were allocated to larger groups on a less exclusive basis.

These measures helped to reduce conflict and ensure a relatively equal supply of food for all members of the community. The Anishinabek observed conservation practices such as leaving hunting areas fallow from year to year or every third year while other areas were hunted every second year. Other conservation practices involved leaving a certain number of animals in a region to repopulate the land.

Agency and Consent

The earth is animate or living in Algonkian languages such as Anishnabemowin. Rocks are thus considered to be persons who deserve respect. Use of rocks without their permission is inappropriate, as this would oppress their liberty, akin to using other people against their will. The enslavement of rocks could lead to great calamities for the earth and its people. Particular procedures are required to obtain the permission of rocks and make appropriate use of them.

The pipe ceremony is such a procedure. By smoking the sacred pipe, the earth’s legal personality is acknowledged. As the smoke rises to heaven, prayers of thanksgiving are spoken for the rocks, plants, animals and other humans. The pipe represents the four orders of life: the earth which forms the pipe; the plant, tobacco, which is sacrificed for the ritual; the animal, symbolized by feathers and fur attached to the pipe; and the human being who inhales the smoke and thus communes with the different orders.

Anishinabek law stands in stark contrast to common law in respect to its broader recognition of the personhood of the earth, animals, plants and the unborn, unlike the common law which only recognizes the legal personhood of mature citizens and corporations.

Property as a Trust

Under Anishinibek law, land cannot be owned or used without her permission. This is because Mother Earth is a person, like all of her children including rocks, plants, animals and people. It is not right to own a person, especially one’s mother or siblings. Persons include the spirits of the unborn. Man is a trustee of the portion he inherits from Mother Earth. When he dies, he takes nothing with him, but leaves his portion to future generations, who have an equal right to inherit.

Collective Decision-making

William Jarvis, the Superintendent of Indian Affairs in 1838, describes how the Anishinabek of French River in Ontario dealt with the case of Mayamaking, who suffered from a severe mental illness that made him a threat to society. This case illustrates the collective decision-making process of the Anishinabek, which John Borrows breaks down into the following steps:

    • wait, observe and collect information
    • council with friends when it is apparent something is wrong
    • help the person who is threatening or causing imminent harm
    • if the person doesn’t respond to help and becomes an imminent threat to individuals or the community, remove them, so they don’t harm others
    • help those who rely on that person by restoring what might be taken from them by the treatment
    • have both the collective and individual participate in the restoration
History and Philosophy

Stories and Their Significance

Stories about Mandamin, Gowkopshee, Animoosh, Pauguk, Pitchee, Nanabush and many other communicate the notion that everyone will face the consequences of their actions. They also show approbation for performance of obligations and disapprobation (Tubuhumahgawin) for failure to do so. These stories, in addition to ceremonies, act as enforcement mechanisms for Anishinabek law.

The story of creation, for example, expresses the Anishinabek concepts of human nature and the natural order. The story of the Flood, on the other hand, illustrates divine disapprobation of the abuse of Mother Earth. It also expresses divine approbation of Nanabush’s creative goodwill, his collaboration with the other animals and his lack of prejudice, as well as Muskrat’s altruistic sacrifice.

The Story of Creation

The Creator, Kitchi-Manitoo, first created the four elements–earth, water, air and fire–and endowed each of them with a particular spirit and powers over other spirits and bodies of their substance and essence.

Kitchi-Manitoo then created the four types of plants–flowers, grasses, trees and vegetables–and endowed each of them with a particular spirit and healing powers.

Then, the Creator made the four types of animals–two-legged, four-legged, winged and swimmers–and endowed each of them with a particular spirit and gifts to enabled them to survive.

Finally, Kitchi-Manitoo made people. These were the weakest in bodily powers and least in the order of dependence. To humans, Kitchi-Manitoo gave the greatest gift: the power to dream, which enables them to connect with other spirits and understand the four Great Laws of Nature–the laws of life, birth, growth and decay–that govern all things.

The Story of the Flood

When creation was new, Grandfather Sun, Grandmother Moon and Mother Earth were pure. The Creator breathed into the four parts of Mother Earth through the sacred Megis Shell to create mankind from the four elements. This was the origin of the Anishinabek.

However, discord arose among the people, who began to defile Mother Earth. When there was no hope of rectifying mankind, Kitchi-Manitoo cleansed Mother Earth by water.

Nanabush, the spirit of the original people, survived on the back of a log that floated on the surface of the water. Other animals took turns resting on the log. Nanabush believed that with the help of the Creator the earth could be restored if it could only be retrieved from the bottom of the water.

Loon first volunteered for this task. After a long dive it resurfaced, saying the water is too deep. Grebe, Mink and Turtle volunteered next with the same outcome. Little Muskrat finally volunteered. The other animals underestimated him, believing the best divers had already preceded him. Nanabush corrected them, saying it’s no one’s place to judge. After a long dive, Muskrat floated to the surface, his body inert. He had stayed too long underwater. In his clenched hand was a pinch of earth he had sacrificed himself to recover.

After Nanabush and the animals mourned the loss of Muskrat, Turtle told Nanabush to put the earth on its back, which would be restored with the help of the Creator. The four winds blew the earth across Turtle’s back, so the earth was restored. Hence, it is called Turtle Island, which is North America.

Turtle Island

Image result for Turtle island
References

John Borrows, Indigenous Legal Traditions in Canada, Report for the Law Commission of Canada (January 2006), online: Government of Canada <http://publications.gc.ca/collections/collection_2008/lcc-cdc/JL2-66-2006E.pdf>