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Nature’s Law Foundations

Aboriginal peoples have long argued that despite an absence of formal codes of law among Amerindian tribes, a larger, comprehensive sense of law did exist and it shaped their life. Together with trans-tribal social mores, political agreements such as treaties, religious ritual and myths about the common source of all life, and the myriad details of everyday responsibility, these elements point to and affirm the existence of a truly all-embracing legal consciousness. Mohawk historian Rarihokwats states that:

"Natural law is understood by children, demonstrated without words in nature, and, properly, is the subject of study and discussion, but not dispute. In this sense, man-made "Indigenous religions" are deemed to be suspect because of the human intervention, is not understood by children, requires words to explain, and prompts many disputes." (Rarihokwats, 2004)

This sense of law formed the basis of Amerindian society and provided the common ground for such things as treaties, hunting ground agreements and social intercourse. As an important example, they point to the "Great Peace." It was and is a well-known model for one area of trans-tribal cooperation—a law that bridged the five tribes of the Iroquois Confederacy. The Great Peace was and is, they contend, concrete evidence of the existence of a regime of law encompassing both local and individual tribes with a larger sense of ordered behaviour on the cosmological and natural levels.

In our exploration, we have selected ten types of laws. These categories indicate the complexity and richness of Indigenous legal tradition and should be sufficient to demonstrate the sophistication of Indigenous civilization. We will use the Cree language as an example of the kinds of laws present, but we could as easily have developed the same set of terms for the Chipewyan, Dene, Blackfoot, etc. 

1. The Spiritual/Sacred Quality
The foundations of Nature’s Law can be described as the Spiritual/Sacred Element in the Cosmos and in Law—its principles, values and meaningful stories are based upon it. This centre of Indigenous reality involves such areas of understanding as myths, cultural stories, principles, greater-than-human beings, general values, the 'sound' of truth, the focus for 'nature’s law,' and ethical understandings.

2. Ritual Law (manitohkasowin)
Rules and requirements associated with ritual were the responsibility of the wise and the spiritually gifted. This law had many dimensions, including seasonal directives, institutional demands and chosen personnel. Taboos also played a role in this law, some of which were kept secret, or were the purvey of the knowledgeable. Most ordinary citizens remained outside the deeper reaches of this law.

3. 'Constitutional' Law (nehiyawewintotam, i.e., S/he acts like a Cree person [trad. translation] or S/he acts like an Indigenous person [contemporary translation]

This kind of law deals with issues of identity and social belonging of the group as a whole. Traditional hunting grounds were one marker of constitutional authority, as were treaty agreements and inter-tribal arrangements. Issues related to the well-being of the group were also involved in constitutional affairs.

4. Relational Law (wahhkotowak, i.e. the act of being related to each other)

A number of areas impinge on this category of Aboriginal peoples ' understanding: kinship systems /family relationships, that is, nehiyawewin/akayasemowin, or kiciniskehk (sacred power), making things 'right,' systems of responsibility, respect, consent, reciprocity, etc.

5. Territorial Law (nehiyawaskiy, literally, Indigenous land and territory)

Territorial law encompasses more than territory, for it relates to what we would call the ecolog—the presence (or absence) of traditional food animals, the use of resources in traditional territories, the preservation and enhancement of the area within boundaries, etc., all fall under this set of rules.

6. Governmental Law (wiyasowewin/ oyasiwwewin, literally, a governing law)

The Indigenous people of Alberta demonstrated great resourcefulness in building societies, with flexible systems of rulership and significant curbs on authority. The Sundance was the primary model for government, since it was at this annual celebration that the whole people came together and dealt with common issues and problems. Smaller band government was more dependent upon chiefs, along with gifted leaders for specific issues. Medicine people and shamans were consultants in the governance of the people, since they were deemed to have knowledge of the spirit world's intentions.

7. Personal Law (manatcihiwewin, respecting someone or ayiswewinpakitinamotowin, i.e, individual act allowed by the law)

Issues of personal property were involved in this kind of law—who "owned" a canoe, who had the rights to hunt or trap in a certain region, who owned the tipis, etc. These were mediated by talk and discussion within bands or tribes, and the concept differs considerably from our notion of ownership.

8. Restitutional Law (mihtatatamowin, act of repentance, masinahikewin, indebtedness)
Justice was meted out according to the peoples' understanding of their law, so local oral codes (peyakoskaniwin, i.e. act of being one family or tribe) helped in maintaining constituency in dealing with infractions locally. The over-riding principle, however, was not punishment of the wrongdoer, per se, but return of the social group to health and well being. Hence, restitution was of much higher value than plain punishment, for the latter only dealt with the immediate problem; whereas, justice had to deal with the long-term survival and health of the group. Sentencing circles, usually composed of elders and members of family from both sides, mediated the results of community consensus on an infraction.

9. Local Oral Law (tipahikepayihtāwin, i.e. act of imposing a rule or requirement)

In this kind of law, local understandings play a role in shaping the law. In other words, tribal and regional differences played a role in defining law among Indigenous peoples in a very significant manner.  This category tries to indicate how law takes on local colouring from people and occurrences, despite its attendance to some of the general principles we have noted.

10. Environmental Law (nakayaskamowin /wasakameskakewin, literally, way of life/all-around-one's self)

Environmental law dealt with issues of survival—preservation of food stocks, growth of fruit and berries, sharing of resources among band members, responsibility of members to the group, if specialized areas were in their traditional territory (i.e. medicine plants, etc.). Environmental law applied to killing of females, wiping out families of animals, disturbing the herd of bison, utilizing all the resources in a given season, etc.

Speech by the Most Honourable Antonio Lamer, PC, CC, CD, LLD, DU. September 26, 2002.

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