In our exploration here, we have selected ten kinds of
laws for examination…eliciting 10 different kinds of
categories of law. These kinds of law related well to our
notions of law and show that, while the systems are
different they still relate to each other at a basic level.
Clearly other kinds of laws could be developed, but these
ten cover some of the most fundamental, and they relate
directly to concepts with which we are familiar. We have also
begun this analysis with a basic Category analysis of the
Spiritual/Sacred Quality in law. This quality provides the
bedrock on which the ten categories can rest.
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 or any
of the other people in our survey.
2. Ritual Law (manitohkasowin)
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.
"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 First Nations' understanding: kinship
systems /family relationships, that is, nehiyawewin/akayasemowin,
or kiciniskehk (sacred power), making things "right,"
systems of responsibility, respect, consent,
Territorial Law (nehiyawaskiy, literally,
Indigenous land and territory)
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.
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.
Restitutional Law (mihtatatamowin, act of
repentance, masinahikewin, indebtedness)
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 defining the legal
territory. The best approach to this category is to note
that tribal and regional differences played a role in
defining law among Indigenous peoples in a very
significant manner. For example, the Dene people have
a long tradition of "holy" people called, in English,
"prophets" who often come to tell the people what would
be coming and how the people should prepare themselves.
The best known of such figures among the Dene is Nógha
(pronounced No-ah). He was said to receive his
information from a wolverine (Nógha is Slavey for
wolverine). Stories of his exploits continue to
influence Dene culture to this day. Hence, in this
category, we will try to indicate how law takes on local coloring from people and occurrences, despite its
attendance to some of the general principles we have
Environmental Law (nakayaskamowin /wasakameskakewin,
literally, way of life/all-around-one's self)
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.
There are others that could be construed as reflecting
the law-like tendencies of our own jurisprudence, but these
categories indicate the complexity and richness of
Indigenous legal tradition and should be sufficient to
demonstrate the sophistication of Indigenous civilization.