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