Justice, the Colonizer, and the Michigan Anishinaabek
By Matthew L.M. Fletcher
The classic Anishinaabe aadizookaan (sacred story) relevant to tribal justice matters is titled “How the Anishinaabek Used to Conduct Trials.”[1] In that story, which takes place near the southern tip of Lake Michigan, dozens of Anishinaabek gathered in a lodge to conduct a murder trial. A pipe-carrier conducts the opening ceremony. The trial is supposed to begin with the touching of a pwaagan (pipe) by one of the ogemaag (leaders or speakers), the lighting of the semaa (tobacco), and ingestion of tobacco smoke by the ogemaag.
In this instance, however, the ogemaag turn their backs on the pipe-carrier, preventing the start of the trial. No Anishinaabe person agrees to start the trial by touching the pwaagan. The pipe-carrier pleads with the Anishinaabek, but they refuse to turn around and touch the pwaagan. Finally, as the pipe-carrier is about the give up in despair, a latecomer with a benodjhen on her back arrives. The pipe-carrier rushes to her, hoping she will touch the pwaagan, but she sees the entire community had turned their backs, so she does, as well. The benodjhen on her back, however, reaches out and touches the pwaagan. With that, the trial could begin.
The aadizookaan about the trial is procedural. We do not learn about the facts of the murder, whether Anishinaabe inaakonigewin (law) supported a murder conviction, and, if there was a conviction, what the sentence would be. We learn that the trial begins with a pipe ceremony. Unsaid are the requirements for the preparation of the pwaagan and the semaa, which involves detailed work. Also unsaid in the story are the details of the pipe ceremony.
There must be a pipe ceremony to begin any meeting where important decisions would be made to ensure that the participants understood their obligation to the truth and to respect the decisions made that day. Critical to the substance of a pipe ceremony is the pipe carrier’s prayers to the seven directions ─ East, South, West, North, Above (the Spirit World), Below (Mother Earth or Anishinaabewaki), and the Center (all living things). This show of respect to the seven directions is indicative of the interconnectedness that Anishinaabe people acknowledge between us and the universe.
Justice, as understood by non-Native persons in the United States (if it is understood at all), is a concept foreign to the Anishinaabek. Most people understand the notion of justice only in broad generalities, such as fairness or morality, or even more broadly, an entire governmental system that is intended to guarantee fairness and morality to individuals. But even that broad notion of justice is not really what most people think of as justice. Most people think that justice is personal, good things handed out to them at opportune moments: a win in a child custody case, a federal income tax refund, a ticket for the speeding truck driver that just blew past. America is, after all, a nation of individuals.
The pipe carrier’s invocation of the seven directions contrasts considerably with the commencement of court proceedings in state, federal, and nearly all tribal courts. There, nothing begins until the judge appears, usually wearing a special black robe. When the judge appears, all persons rise in respect, but they are still below the judge, who is standing and then sitting on a raised platform behind a fortified desk and wall called the bench. This physical structure of the courtroom reinforces the social structure, which is that the judge, sitting in the shoes of the government, is at the apex of the hierarchy of power arrayed to dispense justice.
Justice in this system comes from the judge and the judge only. The attorneys, the jury, the parties, the witnesses, and the audience are mere observers of the power of the court manifested in the judge. These people are mere individuals, weak compared to the power of the government. When individuals are called to testify, they must swear an oath to a monotheistic god to tell the truth, perhaps because individuals cannot be expected to tell the truth inherently.
Americans are, after all, competitors with one another for justice. Americans learn this early, when schools and leaders dictate the mythology of the state of nature in which human life is nasty, brutal, and short in the absence of an all-powerful to guarantee justice. In this system, which pits humans against one another as adversaries, there will be winners and losers. The judge decides. The parties go home.
Anishinaabe people would understand justice differently. If there is to be justice, individuals are only a small component of an overall scheme. Many Anishinaabe people are aware of a principle known as Mino-Bimaadiziwin, which merely means the act of living a good life. But the principle is the wellspring of a kind of natural law, or an unwritten constitution, of the Anishinaabek.
Mino-Bimaadiziwin requires Anishinaabe people to acknowledge the impacts of their actions and inactions on the surrounding world, which expansively includes living and non-living, animate, and inanimate objects. In Anishinaabe philosophies, humans are not the most important entities in Anishinaabewaki, though humans play an important role. Humans possess self-awareness, free will, and creative thought, which are considerable powers and strengths, as well as intense and deeply consequential weaknesses. The Anishinaabek acknowledge their responsibility for their actions on the world and act accordingly.
From Mino-Bimaadiziwin we can derive the Niizhwaaswi Mishomis (or Nokomis) Kinoomaagewinawaan (Seven Grandfather/Grandmother Teachings): Nibwaakaawin (Wisdom), Zaagidwin (Love), Manaadjitiwaawin (Respect), Aakodewin (Bravery), Gwekowaadiziwin (Honesty), Dibaadendizowin (Humility), and Debwewin (Truth). These teachings are loosely equivalent to an Anishinaabe Bill of Rights, but instead of rights owed by the government to individuals, they are sacred obligations that every Anishinaabe person owes to Anishinaabewaki and all creatures within.
Traditional Anishinaabe governance divided political discourse into seven areas tied to the dodem (clan) social structure. The Anishinaabek labeled the dodemaag after seven creatures and supernatural entities, including the mukwa (bear), name (sturgeon), migizi (eagle), and ajijaak (crane) clans. Each dodem owed duties to the Anishinaabe community and to Anishinaabewaki, akin in some respects to limited-issue political parties. Only after all sides were heard and respected did the Anishinaabek make decisions regarding complex issues. Those political structures have given way to modern tribal structures influenced by American governments, but the cultural traditions remain influential.
Anishinaabe tribal justice systems are, for the most part, modeled after state and federal courts. Anishinaabe tribal legislatures adopt laws also modeled on state and federal laws, forcing tribal courts to apply law that derives from the American legal and political tradition that favors a powerful government and a citizenry submissive to the government, but not necessarily to each other.
Even so, many Anishinaabe laws adopted by tribal legislatures and enforced by tribal courts deviate dramatically from state and federal legal traditions. For example, the 1855 Treaty Authority, a group of Minnesota Anishinaabe tribal nations and communities, and the White Earth Ojibwe Nation adopted resolutions recognizing the rights of manoomin (wild rice). The law provides that “Manoomin, or wild rice, within all the Chippewa-ceded territories possesses inherent rights to exist, flourish, regenerate, and evolve, as well as inherent rights to restoration, recovery, and preservation.”[2] Under state and federal law, it goes without saying, wild rice is property that does not possess “rights” like an individual does. For Anishinaabe people, manoomin is a close relative entitled to respect and protection, a gift from the Creator. Further, many Anishinaabe people believe that humans are obliged, if capable of doing so, to affirmatively take action to protect manoomin. Presumably, the successful protection of manoomin from forces that threaten it is a form of justice.
The American philosophy of justice is rooted in individual rights against the government, most especially as applied to personal property. Federal and state law privileges, even fetishizes, personal property. The founding, organic legal documents of the United States — the Constitution and the Declaration of Independence — enshrine personal property owned by individuals over virtually all other legal interests. These documents created a social contract for the powerful white men that drafted and ratified them, leaving out by omission women, children, poor people, noncitizens, and people of color.
Persons excluded from this social contract tended to be treated as property, too, most obviously persons held as slaves and “Indians not taxed,” but also women and children. Anglo-American common law treated women and children as chattel property until very recently. Vestiges of these laws remain even today. Consider how easily states can remove children from their home; all it takes is the affidavit of a police officer or social worker, followed by a short court hearing where the government’s witnesses are presumed to be right, and parents or custodians can lose custody of their children for months and months. Exclusion from the social contract effectively means exclusion from justice.
Justice in Anishinaabe tribal communities is a much more complicated matter than it is in state or federal courts. Anishinaabe people have suffered grave losses to their families, their cultures and languages, and their lands and assets. For many Anishinaabe tribal nations, what governing and cultural institutions that remain are vague shadows of what once existed before American dominance.
Tribal nations are recovering substantial governmental powers, economic and political power, and cultural and language resources, but that effort is slow and very frustrating. And while tribal nations are working and fighting to restore what was lost, they are also engaged in governing their remaining lands and resources and, of course, the people within their territories. Conflicts abound. How those conflicts are resolved, perhaps even more than the substantive result, is a strong indicator for whether there will be justice in Anishinaabe communities.
Consider first conflicts between tribal nations and their citizens. Tribal laws tend to follow the American model of dispute resolution between government and citizen. The first and often only principle is that the government is virtually infallible, deserving of immunity from suits, for example. The second key principle is that the tribal courts serve as an important governmental forum for resolving those disputes, assuming the tribal government creates a court system and consents to be sued there.
For most of the first several decades of the establishment of these Anishinaabe court systems, the tribal judges and the litigants relied on state and federal law to resolve those disputes. In some respects, this is justice, or at least justice as state and federal judges would dispense. Because Anishinaabe tribal court judges tend to be more representative of the tribal community, tribal court decisions tended to be more supportive of individual tribal citizen rights than observers would expect to see in state and federal courts, but not much more.
More recently, however, Anishinaabe courts are importing Anishinaabe culture and language into their decisions. In Payment v. Election Board,[3] the appellate court of the Sault Ste. Marie Tribe of Chippewa Indians applied Mino-Bimaadiziwin and other sacred teachings in interpreting the due process requirements of tribal law: “[T]he notion of due process emanates from the concept of achieving harmony in life, to live in balance with all of creation, otherwise known to the Anishinaabe as mino-bimaadiziwin.” In state and federal courts, due process means little more than the bare minimum the government must do before taking private property or the liberty of a citizen. No one ever really wins a “due process” case in state or federal court.
In Anishinaabe tribal courts, however, due process can mean much, much more. In the Payment case, due process was compared to Anishinaabe talking circles, ceremonies where every participant is given a chance to speak without interruption, about anything they wish, for as long as they wish. Anishinaabe people in a circle respect the power of that space and the words and emotions expressed in that circle. Anishinaabe tribal governments, therefore, would have much greater obligations to their citizens than that provided in the rights provided to citizens in the American Constitution, for example.
Indigenous justice is not solely internal. Tribal nations are seeking justice for historical wrongs, as well. For example, the Grand Traverse Band of Ottawa and Chippewa Indians has been fighting in Congress for the right to sue the United States for the taking of its reservation lands, guaranteed in the 1855 Treaty of Detroit. The lands set aside by the federal government for the Anishinaabek were quickly swarmed over by non-Indian squatters. Rather than evict the squatters, Congress ratified squatters’ rights and tried to set aside other lands for the Anishinaabek.
The same thing happened again, repeatedly. Eventually, the United States gave up. Grand Traverse Band citizens never received the lands promised and the tribal government was “administratively” terminated for over a century. Recently, the tribe has asked for a congressional reference, a special jurisdictional law that allows a tribal nation to sue the United States for the takings of Indian lands. The tribe’s current efforts are designed not to force eviction of the non-Indians who have benefitted from prior federal actions and inactions, but to recover money damages that hopefully provide the tribe with the resources needed to recover as much of the reservation as it can. These lands in northwest lower Michigan are Anishinaabe homelands, places where tribal citizens performed sacred ceremonies and buried their ancestors. The land is healing and contains the breadth of Anishinaabe culture. The restoration of most or all the traditional territories will always be the goal of this tribal nation because that would be justice.
The injustice of American law and politics is on full display in the Grand Traverse Band situation. There is political opposition to the tribes’ efforts to sue the United States, not necessarily from Congress, but from local governments and community leaders. Since the tribe is not seeking eviction or back rent from any current property owners, their objections are misplaced and even confused. But in terms of maintaining the economic and racial hierarchy that dominates Indian Country, the opposition is very effective. The juxtaposition of the goals of the Grand Traverse Band and the local political leaders demonstrates in a microcosm where the quest for justice in Indian Country fails miserably.
Even so, Anishinaabe tribal nations appear to be on the right side of history. Anishinaabe tribal nations focus on matters such as Indian children, climate change impacts and pollution of Anishinaabewaki, and sustainable economic development. These are forward-looking goals designed to remedy historical injustices.
Anishinaabe nations are seeking balance and harmony. Every Anishinaabe participates in governance — even the children, as the aadizookaan of the criminal trial shows. And those efforts are part of the quest for justice.
Notes
[1] Howard Webkamigad, Ottawa Stories From the Springs: Anishinaabe Dibaadjimowinan Wodi Gaa Binjibaamigak Wodi Mookodjiwong E Zhinikaadek 265 (2015).
[2] 1855 Treaty Authority Resolution 2018-05, Rights of Manoomin § 1(a) (Dec. 5, 2018).
[3] No. APP-22-2022 (Sault Ste. Marie Tribe of Chippewa Indians Ct. App. 2022).
First Nations Development Institute (First Nations) is pleased to launch a new online series of essays that focuses on Native justice. With generous support from the Chan Zuckerberg Initiative (CZI), First Nations invited multiple experts to discuss the root causes of Native injustice and highlight possible frameworks to move forward toward Native justice.