Constitutional

Introduction

This is a book about Indigenous rights and their relationship to Indigenous peoples’ own laws in Canada. Its primary objective is to improve this relationship. Using Anishinaabe (i.e., Chippewa or Ojibwe) examples, I examine how Indigenous peoples law could help create healthier Indigenous–government relationships. The Anishinaabe legal lens is focused on the Seven Grandmother/Grandfather Teachings: love, truth, bravery, humility, wisdom, honesty, and respect. Thus, this is also a book about legal ethics. The first two chapters view treaties between Indigenous peoples and governments through an Anishinaabe lens of love and truth. The next two chapters examine the question of Aboriginal title through the ideas of bravery and humility. The following two chapters consider Indigenous law and legal education from the perspectives of wisdom and honesty. The final chapter explores collective responsibilities related to harms caused in Indian residential schools, in the light of Anishinaabe ideas of respect.

This is also a work of legal theory that reflects upon the practices, processes, and principles that help form and re-form Indigenous rights in Canada. Along the way, it advances ideas related to agency, self-determination, entanglement, syncretism, pluralism, nuance, power, and anti-essentialism. Since this is a work of jurisprudence, I hope that readers who may not work in my field will nevertheless draw insights from its pages. At the same time, I do not locate my work in any one specific school of legal theory (see my book on Freedom and Indigenous Constitutionalism for an explanation). Nevertheless, the present book is structured to address ideas connected to legal theory more generally throughout the text.

At the same time, this book also discusses “black-letter” law and is shaped by my work as a law professor. Thus it is focused on legal doctrine as it relates to Aboriginal rights. This is a constitutional field of law that operates under section 35 of Canada’s Constitution Act, 1982, which states, “The existing Aboriginal and treaty rights of the Aboriginal Peoples of Canada are hereby recognized and affirmed.” Each chapter attempts to advance doctrinal concepts connected to the Supreme Court of Canada’s jurisprudence in the area. It tries to advance the field of constitutional law in Canada more generally and to revitalize Aboriginal and treaty rights more particularly.

This book also seeks to make policy contributions to enhance legal education. As a result of its comparative elements, my hope is that people who do not teach in my field will nevertheless find more general insights related to legal education in this work. In fact, I also hope this book contains some helpful ideas about Indigenous post-secondary education more generally.

Law’s Indigenous Ethics is also squarely within the field of Indigenous Studies. The literature I cite, the methodologies I deploy, and many of my animating ideas are rooted in the scholarship of this field. Indigenous language, values, philosophies, and world views motivate this work. Specifically, my writing takes its context and content from Anishinaabe concerns and sensitivities. To forward these visions I relate many stories from my own community in the following chapters. I strive to give prominence to the voices of Anishinaabe elders, tricksters, monsters, caretakers, heroes, animals, and other cultural figures throughout.

Finally, this book is inherently interdisciplinary and highlights societal processes as they involve Indigenous peoples and other citizens. I hope anthropologists, political scientists, geographers, sociologists, historians, philosophers, and others will be drawn into conversations related to the issues discussed herein.

I begin by recounting a familiar Anishinaabe story, recast in my own words. Anishinaabe people tell stories to open spaces for instruction and inquiry. Basil Johnston, the elder who told me his own version of the following story, wrote, “Like our words, our stories have several meanings.” In his book The Gift of the Stars, Basil explained the invitational nature of his stories for adding our own interpretations and enhancing our own growth. He said this methodology is embedded in the earth’s own approach to teaching, which we should strive to emulate.