By: Aaron Mills

Aaron Mills (JD Toronto, LLM Yale, PhD UVic) joined McGill Law as an Assistant Professor in 2018 and is the Canada Research Chair in Indigenous Constitutionalism and Philosophy. As a community-engaged scholar, Aaron works with indigenous individuals, communities, and organizations to revitalize indigenous law and constitutionalism, to renew treaty, and to re-centre Earth in indigenous-Canada relationships.

Note: This essay provides the rough contours of what will ultimately be reworked into an article.

Published in Rooted Constitutionalism | (2021) 1:1 Rooted
Download full issue (PDF) here

1. (Liberal) Constitutionalism

In its conventional prescriptive sense, constitutionalism is said to consist of fundamental law which ascribes, and reciprocally limits, certain powers to government. A government’s legitimacy consists in its observance of the fundamental law: it acts within its authority only to the extent that its actions are sourced within the fundamental law and constrained by its limitations.

On this view, constitutionalism’s ultimate purpose is to justify the exercise of governmental authority over those subjected to it. While particular accounts of what this means vary widely in their specific contentions and emphases, contemporary constitutional theorists generally agree that constitutionalism requires certain core principles. These principles, in turn, entail certain institutional arrangements.

For instance, core constitutional features which connect necessary principles with corollary institutional commitments include:

• A primary emphasis on the legal interests of individual persons, typically represented in bills of civil rights and liberties.
• The rule of law, which necessitates a separation of governmental powers into legislative, executive, and judicial branches of government. Each branch consists of those governmental institutions which, respectively, create law, implement and enforce law, and interpret law and adjudicate legal disputes. Heavy emphasis is typically placed, in particular, on the independence of the judiciary.
• Responsible government and popular sovereignty, which require that the executive order of government is ultimately responsible to an elected body of representatives, and so to the people it governs—who are the ultimate source of executive authority.

Importantly, these constitutional features presuppose certain structural and normative commitments. For instance, the first feature presupposes that the individual is the foundational moral unit in the exercise of justification that constitutionalism seeks to effect. The second feature presupposes a particular form of polity, the state, which specifies citizenship as its form of membership. The third feature presupposes a democratic electoral system and so the foundational norm of the consent of the governed.

Taken together, the presuppositions of just these three constitutional features seems already to suggest that constitutionalism requires some conception of liberty (though perhaps no particular conception thereof) and of equality (at a minimum, equality before the law). One might reasonably wonder whether constitutionalism so conceived is only for liberal political communities. 

That’s an awfully specific starting point and one idiosyncratic to a particular historical experience and geography. What if a people who doesn’t share that genealogy founds their political community upon different normative commitments? What if they take community to represent a different value (and so to serve a different end) and in consequence, to require a relationship between community members based in something other than consent? Presumably such differences would require an altogether different justification for community. Would such a community necessarily exist outside of constitutionalism? Of constitutional import, what if, despite these different starting points, this community demonstrates a degree of concern for how governmental power is (and ought to be) exercised over its members consistent with that of liberal constitutionalism?

Some might concede that all of the foregoing exists and even allow that I’m talking about a form of political community and of social control, yet deny applicability of the language of constitutionalism and of law. They may argue that these are technical terms and that their inapplicability here doesn’t reflect any moral judgment. Legal positivists, for instance, might assert that communities of this sort simply contain the wrong kind of social facts. Others might reply that communities of this sort can’t be constitutional communities if they aren’t democratic communities, since, they contend, constitutionalism is a specific democratic form. There are many like legal and political theory grounds for occlusion of such communities.

Yet if we take that the ultimate purpose of constitutionalism is to justify the exercise of governmental power in and over the lives of community members, then I think such dismissals risk moving too quickly and assuming too much. In my work, I’ve sought to provincialize the conventional prescriptive view of constitutionalism as representing but one family of conceptions of what, I argue, is a much wider concept.

2. Constitutional Kinds

Taking the justificatory purpose of constitutionalism seriously requires that we think of constitutionalism less as a noun, more as a verb. To explain constitutionalism is to justify how and why a community constitutes itself in the way that it does, and not to justify any particular institutional arrangement. To be sure, this casts the ambit of ‘constitutionalism’ (and of ‘law’, too) much wider than many theorists, and certainly most analytic philosophers, will readily support. Yet if constitutionalism is to be defined in respect of its justificatory purpose, I think the larger view is necessary. 

First, a contextual contention: many (and possibly all, but obviously I can’t substantiate that intuition) pre-contact indigenous communities of Turtle Island were communities characterized by the different sort of starting points I’ve indicated. Albeit damaged and incomplete, many retain their distinct form of constitutionalism and of law today. They survive despite (often centuries of) unrelenting pressure from a colonial power determined to suppress and erase them and to occupy all the constitutional space itself.

My primary contention in this essay is that these differences amount to a difference in constitutional kind. For greater certainty, I’m saying that the relevant difference regards not just distinct constitutional orders (which I take to be obvious), but also conceptions of constitutionalism.

Because of my identity and related community experience, I focus on Anishinaabe constitutionalism. Yet I draw a vital distinction in my work. In distinguishing between constitutional kinds, I prefer to speak of rooted constitutionalism and not indigenous constitutionalism. Thus I’d say that Anishinaabe constitutionalism is a species of the rooted constitutional kind. I make this discursive choice precisely to place the emphasis where it ought to be: on the kind of constitutionalism at issue, and not on the identity of the subjects who bear it.[1]

On the latter point, indigenous peoples are far and away rooted constitutionalism’s exemplars, but as a kind of constitutionalism, rootedness is available to anyone willing to sustain it. My hope is that enough of the world’s peoples will adopt it within a timeline that, respecting the urgency of anthropocentric global warming, allows for the continued viability of humans and of creation as we know it.

The question of central importance, then, is what defines a constitutional kind? On the verb-oriented view, constitutionalism consists of four tightly-connected aspects. The first three deal directly with what it means to constitute community: (1) a constitutional logic: the mechanism that justifies community (and upon which distinctions in constitutional kind ultimately turn); (2) the correlate structure through which that mechanism is realized and sustained in practise; (3) the form of membership internal to that structure. The fourth aspect of constitutionalism, a conception of law, regards the viability of the first three through time. As the mechanism tasked with maintaining social order (and indeed, social cooperation), we might think of law as the sustainability condition of constitutionalism. Law sustains constitutionalism through change in two senses. First, the internal sense of ongoing—indeed, permanent—difference between community members, and second, in the external sense of a ceaselessly changing world.

3. Anishinaabe Constitutionalism

In the case of Anishinaabe constitutionalism (and I think of rooted constitutionalism generally), the first three aspects are mutual aid, family, and kinship. In anishinaabemowin, the Anishinaabe language, the word most frequently used for the fourth aspect is inaakonigewin. In English, we might call it something like law as reasoned normative discernment. Given the context of this essay, I’ll provide only a skeletal sketch of each aspect and of their internal relationships, focussing on mutual aid.

Mutual aid, or wiisookodadiwin, is the beating heart of rooted constitutionalism. As a constitutional logic, it answers the question ‘why ought persons to constitute themselves as community?’ The answer it provides is that freedom requires mutual aid, and community is mutual aid’s condition of possibility. Without community, the coordinated exchange of individuals’ gifts and needs—mutual aid—isn’t possible. Note that ‘gift’ refers not only to the offering of material goods, but also to the sharing of knowledge, skill, labour, or anything which one agent beneficially shares with another.

Rooted peoples understand this to be how Earth community functions, and as such, they find themselves in always-already existing networks of mutual aid.[2] In reproducing its logic in their own communities, rooted peoples constitute themselves in and through Earth (hence ‘rooted’).

The foundational political theory challenge for rooted peoples, then, isn’t to justify the movement from an imagined state of nature into political community, but rather to reproduce and to sustain the general state of order which precedes human communities. That is, rather than creating the conditions of freedom through the imposition of law and government on nature, we work to preserve and develop the freedom inherent in Earth’s[3] internal legality.

We do so by coordinating gifts and needs throughout our circle of community. The constitutional logic of mutual aid manifests through the gift –> gratitude –> reciprocity analytic. I receive a gift; I experience gratitude; I’m moved by my experience of gratitude to reciprocate. Vitally, reciprocity is circular, not correlative. I offer my gift ‘forward’, to wherever in the circle it’s most needed. This doesn’t preclude me from offering my gift to my original donor, because he or she is, after all, part of the circle. But I’m under no obligation to do so (i.e. my act of reciprocity isn’t correlative to my donor), and circumstance will usually direct me elsewhere. For greater certainty, in those instances where I reciprocate to my own donor, my reciprocation is an instance of gifting forward, not ‘back’.

My reciprocal gift completes my participation in the immediate mutual aid exchange (it’s the third step of the analytic) but stands as the beginning (the first step) of someone else’s, triggering the cycle anew. Thus, instead of the certainty that characterizes a provisionally settled agreement (whether through the constitutional logic of contract, original position, etc.), rooted political community consists in a state of radical contingency, perpetually constituted in each act of an ever-unfolding sequence of mutual aid exchange.

All community members participate, simply trusting that in helping to meet the needs of others, the circle will provide for their needs, too. This ancillary principle of trust replaces the liberal principle of rational self-interest. This would be unfathomable from an ontology that situates the moral agency of individuals in terms of their autonomy. But individual autonomy isn’t part of the ontology that gives rise to rooted constitutionalism. Where persons are always already connected, their natural state is one of deep interdependence: well beyond any instrumentality, they’re ontologically connected, one consequence of which is that they frame purposes not only in, but as relationships.

This ontological difference from liberal constitutionalism’s starting points bespeaks a novel conception of freedom in which liberty and equality are absent, replaced by sharing and respect. Practically speaking, freedom is the capacity to gift and to be gifted (that is, to have our needs respected). Mutual aid is this conception of freedom’s condition of possibility. 

The second and third aspects of rooted constitutionalism can be taken up briefly and together. What I’ve called the ‘circle of community’ (tracking the exchange mechanism of circular reciprocity) is structured as a family to which community members belong as kin (i.e. no state, no citizenship, no legacy of Westphalia). So for greater certainty, community members don’t practise mutual aid just however they may please. Rather, the giving and receiving of community-sustaining gifts is structured through kinship, or stated differently, each kinship role specifies the mutual aid analytic in a particular way. This is why kinship schema for Anishinaabeg are so highly determined. Almost every role gets its own name, because it’s characterized by unique gifting responsibilities.

Vitally, ‘family’ doesn’t refer only to community members who share common ancestry. All community members are located within the kinship schema, whether by blood, marriage, adoption, and/or metaphorical extensions of kinship roles. Within many contemporary Anishinaabe communities, there are still those who occupy the role of aunty, grandmother, or grandfather to the entire community, or at least to those who aren’t blood kin.

This means that within rooted communities, membership is contingent and differentiated (and so decidedly unlike citizenship). It’s contingent in the sense that community members belong only insofar as they sustain their kinships (through their practise of mutual aid). It’s differentiated in that every community member inhabits a different set of kinships, both with respect to one another and with respect to themselves, over time.

That just leaves the conception of law that rooted constitutionalism generates. As with all conceptions of constitutionalism, the value of rooted constitutionalism consists in its capacity to enable and to limit the exercise of governmental power over community members, generating the conditions for freedom. Where freedom consists in the capacity of community members to sustain and to develop positive relationships through gift exchange, then the work of law is to facilitate and to protect those relationships and the exchange which defines them.

These differences combine to render law a character which is quite distinct from the familiar sense of law as legal norms which direct behaviour (and enable plans, although I’m not contemplating that analogue aspect of rooted law here). There’s no set of abstract and externalized propositions (i.e. values, standards, principles, and paradigmatically, rules) to which I may turn to direct my behaviour. Instead, I draw from an internalized repertoire of source material (such as legends/aadizookaanan, family histories/dibajimowinan, earth teachings/akinoomaagewinan, elders’ teachings/izhitwaawinan) to form judgments about how to realize my kin-defined responsibilities to share my gifts. Rooted law, then, is the deliberative process of accessing that source material and placing it in relationship with the relevant factual circumstances to result in two related judgments:

• First, given the kinships in play, what are my responsibilities?
• Second, if any, then how can I best realize them, given the relevant circumstances?

What I’ve just described is a particular kind of reasoned normative discernment.[4] Law-generating, law-interpreting, and law-implementing institutions which map to this conception of law are markedly different in character from those associated with the liberal kind of constitutionalism. Without unpacking them, some examples include:

• Gii’igoshimowin and makoosekewin (men’s and women’s coming of age ceremonies, respectively) serve to generate law insofar as they create relationships and empower their participants with gifts.
• Aadizookewin (the institution of telling legends) serves the end of interpreting law by providing community members with a repertoire of source material that exemplifies good and bad judgements, and relationships, in a myriad of contexts.
• Zagasawe’idiwin (the council) is an institution in which community members deliberate as to how best to resolve or manage a situation, implementing a judgment.

4. The Determinateness of Governmental Authority Necessary for Constitutionalism: Government vs. Governance

So ends the brief sketch of my argument for a much broader concept of constitutionalism, one capable of admitting both liberal and rooted kinds of constitutional communities. Doubtless, it’s subject to numerous criticisms. One is surely as follows. Even if the foregoing sketch of rooted constitutionalism has adequately made out the case for the grassroots ascription of governmental powers directly to community members absent any notion of government, I’ve certainly failed to take seriously the other half of constitutionalism’s central purpose: to constrain the exercise of governmental power in community members’ lives. Given that deficit, at best I’ve offered a novel conception of political community, but not one constitutional in character. Finally, with the collapse of the rooted alternative, the effort to provincialize what I’ve called the liberal family of conceptions (or kind) of constitutionalism fails.

This worry disappears if we sustain our faithfulness to constitutionalism’s central purpose, to justify the exercise of governmental authority. Rooted peoples are surely just as subject to failure and frailty on this count as are the subjects of liberal constitutional orders. Likewise, rooted peoples are just as much in need of justification for the exercises of power which they assume for themselves and which they effect over one another. All we need to accommodate the challenge—the seemingly unmediated agency of rooted community members—is to recognize that government is an over-determination of the source of governmental authority. The broader standard of governance (of which government is but one form) is sufficient.

Rooted constitutional orders—at least Anishinaabe ones—don’t have governments. Ogimaa is our word for leader in the civil sense. But ogimaa is a role, not an office, and it has no decision-making or executive power of any kind.[5] Ogimaa mediates, facilitates, and re-articulates. Ogimaa has persuasive, but not coercive, authority.[6]

However governance is precisely what ordinary community members enact with each mutual aid exchange that keeps community vital, contributing to any of its law-generating, law-interpreting, or law-implementing capacities. Numerous Anishinaabe elders, scholars, and others have given voice to the perspective that governance responsibility is held by each of us individually.

Nokomis, my grandmother (Bessie Mainville of Couchiching First Nation) uses the word bimiwinitiziwin to describe this concept. Anishinaabe Elder Harry Bone explains, “That’s why we’re given that language, our teachings, our history, and the way you conduct yourself. But conducting yourself is like government, right? So it’s governing yourself.”[7] This literal view of self-governance is also shared in a Mishkeegogamang community book where the text immediately beneath the subheading “True Self-Government” reads “After careful teaching in childhood, people took responsibility for their own moral conduct through inner control, rather than by responding to rules or laws imposed by government or leader.”[8] Finally, the Anishinabek Nation (the political territorial organization in Central, Eastern, and Southern Ontario) also shares this view. In a recent report summarizing community engagement sessions on Anishinaabe law, it stated that “It was each of our own personal responsibility to strive to implement our laws and teachings within our day-to-day lives to achieve mino bimaadiziwin (a good life or living in a good way) and each of us had a responsibility to pass these laws and principles on to our children and grandchildren.”[9]

Leanne Simpson more clearly draws out the linkage from individual to community self-governance when she explains of Anishinaabeg that “There was a belief that good governance and political relationships begin with individuals and how they relate to each other in families”[10] and “In a real sense for the Nishnaabeg, relating to one’s immediate family, the land, the members of their clan, and their relations in the nonhuman world in a good way was the foundation of good governance in a collective sense.”[11]

Mohawk scholar Trish Monture put the point more expressly still, explaining that for deeply interdependent kinsfolk, to be self-governing means to carefully attend to one’s relationships:

Self-determination begins with looking at yourself and your family and deciding if and when you are living responsibly. Self-determination is principally, that is first and foremost, about relationships. Communities cannot be self-governing unless members of those communities are well and living in a responsible way. It is difficult for individuals to be self-determining until they are living as part of their community.[12]

Patricia A Monture-Angus, Journeying Forward: Dreaming First Nations’ Independence (Halifax: Fernwood Publishing, 1999) at 8.

If individual community members are to be so trusted that each is empowered to exercise governmental authority directly, then surely each ought to expect that every exercise thereof be both grounded and constrained. Through its four aspects of mutual aid, family, kinship, and inaakonigewin (or the conception of law as reasoned normative discernment), this is just what Anishinaabe constitutionalism—which is of the rooted constitutional kind—accomplishes. 

As the mere sketch of an argument, I don’t presume to have persuasively made my case. But I hope to have at least opened up the possibility that we live in a world of not only distinct constitutional orders, but also of constitutionalisms which are different in kind.

Mii ih, miigwech.

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[1] It may be worth stating expressly that any given indigenous community will ordinarily contain members not of the dominant ethnonational group.  

[2] See generally Robin Kimmerer, “Returning the Gift” (2014) 7:2 Minding Nature18.

[3] I say “Earth’s” and not “nature’s” deliberately. Implicit in the foregoing text is a denial of a nature/culture divide.

[4] I present a lengthy list of definitions of ‘inaakonigewin’ in my dissertation. While each varies in its particulars, each gives this sense to the word. See Aaron James Mills, Miinigowiziwin: All That Has Been Given for Living Well Together: One Vision of Anishinaabe Constitutionalism (PhD dissertation, University of Victoria, 2019) [unpublished] at 143–44.

[5] See Nicolas Perrot, Memoir on the Manners, Customs and Religion of the Savages of North America, in The Indian Tribes of the Upper Mississippi Valley and Region of the Great Lakes, ed and translated by Emma Helen Blair (Cleveland: Arthur H Clark, 1911) vol 1 at 145; Peter Jones, History of the Ojebway Indians; with Especial Reference to Their Conversion to Christianity (London: AW Bennett, 5, Bishopsgate Street Without, 1861) at 108–09.

[6] See “Narrative of the most remarkable Occurrences in Canada. 1694, 1695.” in EB O’Callaghan, ed, Documents Relative to the Colonial History of the State of New York (Albany: Weed, Parsons and Company, 1855) vol 9 594 at 612; Basil Johnston, Ojibway Heritage: The Ceremonies, Rituals, Songs, Dances, Prayers and Legends of the Ojibway (Toronto: McClelland and Stewart, 1976) at 61.

[7] Teaching of elder Harry Bone (16 June 2018) Winnipeg, Manitoba.

[8] Marj Heinrichs & Diane Hiebert with the people of Mishkeegogamang, Mishkeegogamang: The Land, the People & the Purpose (Rosetta Projects, 2009) at 217.

[9] Union of Ontario Indians, “Revitalization of Anishinabek Legal Traditions, Regional Sessions, Final Summary Report” (Nipissing First Nation: Anishinabek Nation Legal Department, 2018) at 15.

[10] Leanne Simpson, “Looking after Gdoo-naaganinaa: Precolonial Nishnaabeg Diplomatic and Treaty Relationships” (2008) 23:2 Wíčazo Ša Review 29 at 32.

[11] Ibid.

[12] Patricia A Monture-Angus, Journeying Forward: Dreaming First Nations’ Independence (Halifax: Fernwood Publishing, 1999) at 8.