Editorial Introduction to Matthew Fletcher’s, “Indonaakonigewininaan  – Toward an Anishinaabe Common Law”

Language is the springboard for ways of knowing, something that generates and perpetuates knowledge. Discussing how Indigenous languages contribute to particular ways of knowing, Sákéj Henderson commented that, “It’s a different structure of knowing that’s embedded in the language that’s related to a deeper cosmology and knowledge system that literally goes to the centre of the Earth and to the stars. But the reference point is the earth and what lives in the earth lodge in all of our languages and how things are conducted.”¹⁶

Our second contributor this season is Matthew Fletcher, an Anishinaabe scholar who teaches law at Michigan State University. A member of the Grand Traverse Band of Peshawbestown, Michigan, he focuses on the role of Anishinaabe ways of knowing and their force in tribal court jurisprudence, introducing the theme of how Indigenous laws are articulated through Indigenous languages. In addition to his teaching and scholarship, Professor Fletcher sits as the Chief Judge of the Poarch Band of Creek Indians Supreme Court, and as a judge for the Grand Traverse Band of Ottawa and Chippewa Indians, the Mashpee Wampanoag Tribe, the Match-E-Be-Nash-She-Wish Band of Potawatomi Indians, and the Santee Sioux Tribe of Nebraska.

A reader of the following contribution might consider how the Anishinaabe law concepts presented by Matthew Fletcher contribute to ways of knowing that are unique to Anishinaabemowin speakers and Anishinaabe law practitioners (and different from the Anglo-American common law, based in English). In his essay, “Indonaakonigewininaan  – Toward an Anishinaabe Common Law,” Fletcher addresses the emergence of Anishinaabe law in the context of tribal court decisions in the United States. As a tribal court judge, Fletcher discusses his own use of mino-bimaadziwin (Anishinaabemowin, “the act of living”) to resolve disputes in Michigan Tribal Courts. Anishinaabe jurisprudence, which relies on an understanding of Anishinaabemowin, facilitates the production of law in a way that cannot be replicated in another language.

In his paper, “Rethinking Customary Law in Tribal Court Jurisprudence,” Fletcher asserts that “[o]ne method of teasing out a tribe’s primary rules may be to focus on important and fundamental rules articulated in the tribe’s language.”¹⁷ He calls this the linguistic method, which involves the tribal court identifying “an important and fundamental value identified by a word or phrase in the tribal language.”¹⁸ Fletcher argues that applying such a primary tribal rule to an Anglo-American or intertribal secondary rule “is necessary to harmonize these outside rules to the tribe’s customs and traditions.”¹⁹ Hadley Friedland notes an advantage of using the linguistic methodology in a tribal court context where “relying on the inherent knowledge of language as a legal resource, and applying broad concepts as interpretative aids to Anglo-American procedural law… risks little in terms of distortions relating to superficial pan-Indigenous values, and it at least gives tribal court judges a concrete way to begin considering and using Indigenous principles in a relatively safe and transparent way.”²⁰ Darcy Lindberg argues that using the linguistic legal methodology requires deep knowledge of the community because it relies on fluent understanding of the community language.²¹ A reader of Matthew Fletcher’s essay might also think about mino-bimaadziwin from this methodological perspective and consider how this concept functions as a primary rule from which the Seven Grandmother teachings are learned.

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¹⁶ Sákéj Henderson, “Language and Knowing Differently” (6 September 2011), online: YouTube <https://www.youtube.com/watch?v=EcanBpZGVYA&gt; at 00h:6m:35s.

¹⁷ Matthew Fletcher, “Rethinking Customary Law in Tribal Court Jurisprudence” (2007) 13 Mich J Race & L 57 at 41.

¹⁸ Ibid.

¹⁹ Ibid at 33.

²⁰ Hadley Friedland, “Reflective Frameworks: Methods for Accessing, Understanding, and Applying Indigenous Laws” (2012) 11 Indigenous LJ 1 at 18.

²¹ Darcy Lindberg, “Brain Tanning and Shut Eye Dancing: Recognizing Legal Resources within Cree Ceremonies” (2016) Law 502 final paper, University of Victoria [unpublished].

Indonaakonigewininaan – Toward an Anishinaabe Common Law by Matthew L.M. Fletcher

American tribal common law is a mixture of federal and state common law, intertribal common law, and tribal customary law, usually (and unfortunately) applied in that order. Too many American Indian tribes have set aside their cultures and languages when governing as a consequence of adapting to the American federalist system of governance. Michigan tribal courts are steadily moving toward reversing that hierarchy of law and establishing a body of tribal law, a body of law that is ours, Indonaakonigewininaan.

In Michigan, where the 12 federally recognized tribes are Anishinaabe, most of the tribes suffered through a century or more of a unique bureaucratic nightmare known as administrative termination. As a result, tribal governments focused on fighting for treaty rights and sovereignty rather than nation-building during that time. Tribal justice systems lay dormant as tribes struggled. In recent decades, however, Michigan tribes have successfully progressed into the modern self-determination era, where tribes now administer their own government services rather that depend on the federal government to do it for them.

Michigan tribal courts are models for the rest of the United States. The Michigan Supreme Court adopted Michigan Court Rule 2.615 in the 1990s, extending reciprocal comity to tribal court orders and judgments. Because of the court rule, the State of Michigan has agreed to resolve certain state tax disputes with tribal members in tribal courts. Because of the court rule, tribal courts have disbursed millions of dollars in child support and other garnishments. Nearly all Michigan tribes respect the separation of powers between the political branches of government and their independent judiciaries. For example, several Michigan tribes leave it to the judiciary itself to make the difficult decision to remove a judge from office. I have served as a judge in one of these challenging matters.

Michigan tribal courts have existed for many decades, but the modern era of tribal courts began in the 1980s as tribes established conservation courts to enforce tribal treaty hunting and fishing regulations on- and off-reservation. From 1980 to 1999, the federal government acknowledged and restored six Michigan Ottawa (Odawa) and Potawatomi (Bodewadmi) tribes that had been administratively terminated since the 1870s. These tribes ratified written constitutions that provided for independent judiciaries. I will focus my attention on these judiciaries.

In the 1980s and 1990s, the Ottawa and Potawatomi tribal judiciaries began to develop a body of tribal common law, deciding critical matters involving tribal sovereign immunity, election disputes, and tribal membership matters. For the most part, tribal court decision-making used federal Indian law as its jumping-off point. Tribal sovereign immunity matters usually arose in the context of Indian Civil Rights Act claims, and so the tribal courts analyzed sovereign immunity through the lens of Santa Clara Pueblo v. Martinez and related federal decisions. Tribal court decisions also looked to the decisions of other tribal courts, especially if the authors of those opinions were well known in federal Indian law circles, forming a kind of intertribal common law.

Now, as more Michigan Anishinaabek become lawyers, practice in our tribal courts, and serve as tribal judges, Anishinaabe Inaakonigewin is making a comeback. For the most part, that means tribal judges are turning to the growing body of positive tribal legislative and regulatory enactments. Tribal codes and regulations are very specific and highly tailored to a particular tribe’s circumstances. However, tribal constitutions, like the American constitution, remain ambiguous on critical points, leaving much room for tribal court advocates and judges to interact, apply, and ultimately announce tribal common law.

I turn now to cases I worked on as a tribal judge for Michigan tribes alongside my colleagues John Waubunsee and Holly Bird, Spurr v. Nottawaseppi Huron Band of Potawatomi Indians.

In Spurr, the first appeal before the Nottawaseppi Huron Band of Potawatomi Indians Supreme Court, the court rejected a due process challenge to a special tribal election on a constitutional amendment. The petitioner was a former sitting tribal council member who objected to the process by which the tribal council had introduced a series of amendments to the tribal constitution and then initiated a referendum election on whether to adopt the amendments. As this was a case of first impression for the tribe, indeed the very first appeal, the parties struggled with a starting point for their analyses. The petitioner analogized the alleged flaws in the process to union elections decisions from federal appellate courts. The government respondent analogized the election to federal decisions stripping the courts of jurisdiction over election disputes, including Bush v. Gore, the notorious American Supreme Court decision that favored George W. Bush by stopping a recount in Florida after the 2000 election.

The court struggled as well. We were not persuaded by either parties’ starting points. We were not persuaded that the process used by the tribal council was so flawed as to justify enjoining the election, which had already begun. We were not persuaded by the tribe that tribal election disputes were not justiciable. We chose to address the merits of the due process claim, with an eye toward affirming the validity of the election. The panel selected me to write the opinion. The tribal constitution was sparse and did not include a guarantee of due process to persons under tribal jurisdiction. We could have taken the easy way out and adopted the due process clause of the federal Indian Civil Rights Act.

Instead, we used as a starting point the Anishinaabe notion of mino-bimaadziwin (or in Potawatomi, MnoBmadzewen), which translated literally means merely the act of living. But for Anishinaabe people, mino-bimaaadziwin means much more than that – it means the act of living the right way. And the act of living the right way, at bottom, is to acknowledge that an individual’s actions affect more than just that individual. Since we are all interconnected to all beings, animate and inanimate, we affect all beings through our actions. And to live the right way to acknowledge that interconnectedness, it is to act in accordance with the best interests in mind for all beings. We articulated this notion of mino-bimaadziwin with a quotation from former Grand Traverse Band tribal leader Eva Petoskey:

There is a concept that expresses the egalitarian views of our culture. In our language we have a concept, mino-bimaadziwin, which essentially means to live a good life and to live in balance. But what you’re really saying is much different, much larger than that; it’s an articulation of a worldview. Simply said, if you were to be standing in your own center, then out from that, of course, are the circles of your immediate family. And then out from that your extended family, and out from that your clan. And then out from that other people within your tribe. And out from that people, other human beings within the world, other races of people, all of us here in the room. And out from that, the other living beings . . . the animals, the plants, the water, the stars, the moon and the sun, and out from that, the spirits, or the manitous, the various spiritual forces within the world. So when you say that, mino-bimaadziwin, you’re saying that a person lives a life that has really dependently arisen within the web of life. If you’re saying that a person is a good person, that means that they are holding that connection, that connectedness within their family, and within their extended family, within their community.

From that view, all Anishinaabe Inaakonigewin derives. From mino-bimaadziwin, we learn the Seven Grandmother (or Grandfather) teachings: Nbwaakaawin – Wisdom; Zaagidwin – Love; Mnaadendimowin – Respect; Aakwade’ewin – Bravery; Gwekwaadiziwin – Honesty; Dbaadendizwin – Humility; and Debwewin – Truth.

In the Spurr matter, the council held public meetings to discuss potential amendments and amendment drafts. The council complied with the bare letter of the tribal constitution in setting the election date, and election procedures. The petitioner complained that the tribal council relied too heavily on an expensive non-Indian consultant to implement the procedures, to draft the amendments, and review tribal member concerns. In particular, the petitioner worried that the consultant also used his position to advocate for the amendments, which the petitioner worried were really the tribal council’s political positions. The petitioner had participated in many of these processes during his time as a sitting council member. In his briefing, he insinuated that one of the constitutional amendments, to bar persons with a criminal record from serving as a tribal council member, was directed at him. Keep in mind that, as nonmembers of the tribe itself, none of the appellate judges had access to the actual content of the tribal constitutional amendments.

We concluded that the tribal council acted in good faith in developing its procedures for drafting amendments to the tribal constitution and in holding the election itself. We did express concern that there could be a perception that the consultant had advocated improperly in favor of the amendments, but we also noted that no election is perfect. Though we did assert jurisdiction over the matter, we did choose to apply a limited standard of review on the election in deference to the political branches of tribal government’s authority over tribal elections. In short, we decided that the petitioner had not alleged enough facts to justify enjoining an ongoing election.

The Spurr matter drew a great deal of attention from the community, and the opinion made an impact. In the appeals that followed involving the tribal government, tribal lawyers drew heavily from the court’s reasoning and attempted to develop a tribal common law consistent with the principles of mino-bimaadziwin. Perhaps the most acute impact was the acknowledgment by tribal leadership that tribal politics was too adversarial, and that political opponents were forgetting they were still relatives.

A coda. I was pleased to see that the Grand Traverse Band Election Board had expressly adopted the Seven Grandfathers as guiding principles in administering elections since at least the 2014 elections. See Raphael v. Grand Traverse Band of Ottawa and Chippewa Indians Election Board. It is my hope that the Spurr announcement of Anishinaabe Inaakonigewin will be adopted by other tribal judiciaries in Michigan and elsewhere. I have tried to understand more about mino-bimaadziwin and apply the Seven Grandmothers in my later judicial opinions and in my legal scholarship. E.g., Cholewka v. Grand Traverse Band Tribal Council; People of the Pokagon Band of Potawatomi Indians v. Rangel.

Miigwetch.