Heroes, tricksters, monsters, and caretakers: indigenous law and legal education.

• Author: Borrows, John
• Position: II. Organizing Indigenous Law on Its Own Terms, as Best as We Can B. Heroes, Tricksters, Monsters, and Caretakers through Conclusion, with footnotes, p. 820-846 - Canada - Moving from the Why to the How of Indigenous Law

2. Heroes, Tricksters, Monsters, and Caretakers

With a broader context now in place, I am now prepared to directly answer the question posed at the beginning of this article: how might teachers of Indigenous law best organize their materials? Here is an answer: we should ask Elders and Indigenous legal practitioners about how they categorize law (as Friedland did). (114) Furthermore, teachers and students could look for clues about the organization of Indigenous law in the broader narrative structures that discipline such narratives.

I must stress that narrative is only one way of systematizing student experience in transmitting Indigenous law. Some learning will resist categorization. Additionally, libertarian, anarchist, and contrarian lines of thought are found within Indigenous communities. These must be preserved and strengthened. There is even a category of practitioners in Anishinaabe circles whose members work in contrary ways: they are called Windigokaan. (115) Indigenous people occupy different points along political spectrums. (116) Some are conservative, others are liberal, while yet others resist capitalism and adopt or reject alternative forms of Indigenous political classification. Materials will be organized differently (or not at all) as practitioners and teachers follow competing and crosscutting schools of thought. Not every law professor organizes their presentations of law in the same way and, as I have argued earlier, the same is true of Indigenous legal traditions.

For instance, I would not want narrative to overtake customary law as the privileged source of authority in Indigenous law. (117) would also lament the loss of Indigenous law's spiritual sensibilities. (118) Furthermore, positivistic proclamation continues to be a powerful source of law within Indigenous communities. (119) This is why communities use bylaws, regulations, declarations, and rules to create order among their citizens. Moreover, deliberation and wide-ranging debate generates most law within Indigenous communities. The results of this activity may later be recorded in agreements, (120) treaties, (121) judgments, (122) statutes, (123) songs, (124) and stories (125) as well as on wampum belts, (126) scrolls, (127) totem poles, (128) button blankets, (129) rocks, (130) paper, (131) and other media. (132) People also reference "the sacred" in some instances to develop law. (133) My favourite source of Indigenous law flows from observation and deliberation concerning the environment. Indigenous peoples use events in the natural world as a resource for understanding how they should act in their own sphere. (134) Law is a human activity embedded in a larger natural world. (135) It relies on persuasion, discussion, argumentation, contestation, mediation, and coercion to bring insights from natural and sacred sources into the human realm. By distinguishing or drawing analogies (136) from the behaviour of water, wind, rocks, plants, insects, birds, and animals, Indigenous peoples generate standards for how humans should regulate themselves and resolve their disputes. (137)

I am asserting that the teaching of Anishinaabe law is best facilitated by understanding and working through Indigenous legal epistemologies (138) (or as the Anishinaabe would say Anishinaabe gikendaasowinan or izhitwaawinan). We must study the nature, sources, and limits of knowledge as articulated by Indigenous peoples themselves to best teach Indigenous law. (139) We must develop an understanding of how Indigenous peoples create and justify what they think they know to be true in their own terms. (140) When we pay attention to Indigenous epistemologies, we will be in a better position to organize teaching materials for future Indigenous law practitioners. (141)

As I have been suggesting, Anishinaabe narrative is one (and only one) way to accomplish this task. As I think about how Anishinaabe narratives are organized, I recognize that they are correlated in different ways. (142) There is a creation story epic. (143) There is an extended chronicle of Nanaboozhoo and his travels. (144) There is a cycle of stories connecting Nanaboozhoo to his brother and broader family. (145) There are also stories about Nanaboozhoo that contain standards about how non-humans should relate to the natural world, and to one another. (146) Some of these stories are about how the winds, rocks, plants, birds, and animals counselled and interacted with humans in a time before time (mewizha). (147) These stories are often called aadozookaanak. (148) They are recited in different ways with different sequencing throughout Anishinaabe territories in Ontario, Manitoba, Saskatchewan, North Dakota, Minnesota, Wisconsin, and Michigan. There is another class of stories known as dibaajimowinan, (149) These narratives chronicle more recent events and they recall the names, places, and activities of people who may have lived in the more recent past. (150) Some of these cases involve human relationships prior to European arrival, while yet others relate to treaty and later colonial actors in their interactions with non-Anishinaabe people. (151)

Aadozookaanak and dibaajimowinan contain recognizable patterns of thought and action. (152) Many characters recurrently appear in different contexts to demonstrate how to regulate life and resolve disputes. (153) This is why they can provide resources for reasoning in a legal context, even as they function as entertainment-oriented, psychological, or spiritual narratives in other spheres. (154) They provide a basis for organizing the teaching of law.

In reviewing these narratives, I am struck by the persistent appearance of four character types: Heroes, Tricksters, Monsters, and Caretakers. Just as Friedland recognized in dealing with Windigos, these characters exist as ideal types; their actions can be compared and contrasted to contemporary behaviours and analogized or distinguished to guide present actions. (155) The principles generated from their activities can be applied to people today. Reference to these characters provides one way of organizing the vast body of Anishinaabe authority, as follows:

* Heroes are figures who brought us to the place we are. In applying these precedents, we can ask: how do we draw reasoning and standards for judgment from their activities?

* Tricksters are figures who turn the established order of life on its head to confirm, change, or transform generally accepted norms. In analogizing from their behaviours to our own, we can likewise ask: how do we draw reasoning and standards for judgment from their experiences?

* Monsters are figures of destruction and dissolution. There is value in considering: how do we draw reasoning and standards for judgment from their lessons?

* Caretakers are figures who encourage, mend, heal, reconcile, and make whole. As with the other figures, when considering their actions, we can ask: how do we draw reasoning and standards for judgment from their actions?

In applying these categories, I can imagine teaching a law school course or organizing an entire curriculum in Anishinaabe law on this basis. Of course, there are other ways of correlating materials, which combine other Anishinaabe legal methodologies. Despite other possible patterns, in the next few pages I briefly discuss legal lessons that may be learned by reference to these four categories and I indicate the kinds of cases that might fall within each order.

In reciting the cases/stories in each category, I do not have the space in an article of this brevity to provide the facts of each narrative. Unfortunately, this will make the stories much less interesting. (156) Nevertheless, those who are familiar with Anishinaabe law will understand the references below. For those unfamiliar with this tradition, the references to each case/story will sound obscure. It might be like reading about cases in a law review article that discusses a field in which you have no experience. For instance, if a writer were to discuss leading insurance, banking, or telecommunications cases, I would not immediately understand their references. I would have to do the additional work of reading the cases to which they refer. I might even have to undertake a more in-depth study of the field to accept or critique their categorical summaries. Until this occurred, I would not have the tools to evaluate their work. Some readers may have this experience in the next few paragraphs.

Fortunately, detailed studies of Anishinaabe law are being prepared by me and other legal academics. (157) Graduate students, professors, and community practitioners are also engaged in this work. (158) Of course, the stories are more interesting when they are told in full. This is one of the reasons these stories have continuing currency within Anishinaabe communities. (159) They allow readers and students to learn each case and its relationship to other stories in greater detail and in context. (160) The purpose of this article, however, is not to analyze any one case in great detail and apply it to a particular dispute. This article is directed to the question of organizing entire fields of Anishinaabe law for teaching purposes, rather than digging deeper within one area of inquiry. Anishinaabe people already teach and practise law by reference to Heroes, Tricksters, Monsters, and Caretakers. I hope this brief overview introduces one way of organizing this legal tradition to a wider audience.

1. Heroes

   Anishinaabe heroes are numerous. (161) Many inspiring figures have shaped our understanding of where we are today. (162) Anishinaabe heroes illustrate how humans can regulate behaviours, relate to their environments, and resolve their disputes. (163) In the creation cycle, Gizhe-manidoo is a pre-eminent hero who set in motion the systems that regulate our lives. (164) The turtle who gave his back to house the Earth and the muskrat who sacrificed himself to bring up...