By Darcy Lindberg
Darcy Lindberg is an Assistant Professor at the Faculty of Law at the University of Alberta. He has published and has publications forthcoming regarding Indigenous law and legal theory, Plains Cree constitutionalism and food sovereignty, and Indigenous citizenship orders.
Published in “Rooted Constitutionalism” | (2021) 1:1 Rooted
Download full issue (PDF) here.
In the following excerpts from his forthcoming book, Nêhiyaw legal scholar Darcy Lindberg introduces a few essential elements of Nêhiyaw law, constitutionalism, and legal thought.
I set out on this research concerned with human relations to the ecological world, and the role of law in these relationships. As one theory of nêhiyaw (Plains Cree) law and constitutionalism enables strong kinship relations between the nêhiyawak and non-human beings and things, I explore how nêhiyaw law can be revitalized to reconcile our land relationships. Wâhkôtowin, or the overarching principle that governs our relations, ensures that wellness and good living – miyo pimâtisiwin – is not only a human objective, but shared intersocietally with non-human relations and entities.
This dissertation examines the constitutive role that four areas of Plains Cree livelihood – nêhiyaw âcimowina (narrative processes), nêhiyaw âskiy (Plains Cree territory and territoriality), nêhiyawewin (Plains Cree language) and nêhiyaw mamâhtâwiwina (Plains Cree ceremony) – play in ensuring such good living. Taking a ‘law as weaving’ approach’, these areas and institutions form a web to support kind relations to our environments and ecologies.
Treaties provide an integral avenue to revitalize the uses of nêhiyaw law in our land relations. Canadian constitutionalism’s primary focus on human-to-human relations, without constitutional consideration of the agency of the ecological world, has had harmful effects on the wellness of non-human beings and things. When we apply the legal and constitutive principles within Plains Cree law and constitutionalism to Treaty 6, they obligate both the Crown and peoples within Canada in the same manner.
Introduction: A Narrative Approach to Wîtaskêwin/Treaty
Tan’si nitotamtihk, ninaskomon e-miyoatamahk wâhkôtowin. Hello my friends. I am grateful that we enjoy this kinship. I have been taught that sharing kinship with others means an equal right to the warmth of the fires within our houses. Our kehte-ayak, our older ones, teach us about our ahcâhk iskotêw, our spirit, as being a hidden fire that animates us. I have heard many of them share that when we begin our lives, we are each given a little flame from kisikâwi-pisim, the sun. In this way we are all animated by a fire from the same source. In a metaphorical way, this writing is part of my fire. And so, in sharing some of my home fire in this way, I hope you can collect a bit of its warmth and think of it as part of yours as well.
To begin, I want to offer one of our many stories of treaty.[i] I will offer a story about wîtaskêwin sputinow, or the hills near Wetaskiwin, Alberta. This area is significant, as it is where the nêhiyawak (Plains Cree peoples) and the niitsitapi (Blackfoot) recommitted to live on the land together in peaceable relations.[ii] While the story I am about to describe is about treaty, it is one of a collection of such treaty events from 1850 to 1870. Collectively, all of these eventually secured a long-lasting treaty – wîtaskêwina – between the nêhiyaw and niitsitapi on the northern prairies.[iii]
European settlement on the Canadian prairies brought significant and often tragic disruptions in the social, economic, legal, and spiritual lives of prairie Indigenous nations during this period.[iv] The decline and ultimate destruction of the population of paskwawimostos, the buffalo peoples, to whom both the nêhiyawak and niitsitapi respectively had kinship relations with, was especially devastating and the cause of rising tensions between the two nations.[v] Following dwindling herds in the northern prairies, each nation had camps in close proximity to each other north of kasakiykanitiwitihk or notinosipiy (the Battle River)[vi] around 1860. Fearing potential conflict with each other, the nêhiyawak and niitsitapi each sent a person to scout and observe where the other community was. In some accounts, it was two young leaders sent by each respective community. As it happened, both approached the same hills at the same time, surprising each other in their encounter.
Our most gifted storytellers know the power of leaving pauses within a story’s telling for the imagination to fill, before the plot is picked up again, moving unto what happens next. When I recount this story, I always wonder what this initial interaction between the nêhiyaw and niitsitapi looks like: I wonder about the surprise on their faces when they initially encounter each other, whether they knew each other from past interactions, what is gestured or said in their first interaction, what language they shared. I also think of how they each carried the burden of protecting their respective communities in the encounter, how their approach must have been filled with both fear and responsibility.
In every version of the story of wîtaskêwin, the two decide to fight but also choose to do so unarmed. In some accounts, this fight lasts for four hours. […] Exhausted, the two men stop their fighting for break. During this pause, the niitsitapi man brings out his ospwâkan (pipe) and loads it with tobacco to smoke. The nêhiyaw okimâw (leader, or chief), wanting to do the same, sees that his has been broken during the fight. Empathizing with the other, the niitsitapi man offers his ospwâkan, and the nêhiyaw man accepts it. In doing so, they both realize they have shared a ‘common pipe’, and thus have obligations to carry forward with each other. As a placeholder for deeper discussions further in this dissertation on what these terms mean for nêhiyaw peoples, they have a shared understanding of this event as a sacred one, and a constitutive one as well. They recognize in sharing tobacco, that their personal conflict on the hill is resolved. They also understand the larger obligations that have arisen by sharing the pipe, for each return to their respective camps and seeks out the collective advice of their communities for interpretation.
The two nations’ subsequent actions confirm the significance of sharing tobacco through the ospwâkan. Upon their respective deliberations, each camp concludes that the shared medicines between the two men signals a treaty friendship. Acting upon these interpretations, the older leaders of each of the communities return to the hills, and under the guidance of further ceremony, enter into a larger treaty relationship with each other with the intent to have peaceable, kin-like relations with each other. For the nêhiyawak, these hills since then have become known as wîtaskêwin-sputinow, or the hills where we live on the land together. While the hills are the literal ground of the treaty event, they are inextricably linked with the treaty making process, as it is not only an agreement for peaceable relations between the two nations, but also a renewed agreement to live in respect with the earth.
Nêhiyawewin: Language as an Avenue to the Heart of Treaty
Nêhiyaw wiyasiwêwina (Plains Cree law) is a living, breathing ecology.[vii] The term translates into English as the ‘act of weaving’.[viii] While the story could be interpreted on its own for lessons of inter-societal peace-making, to maintain the strength of the social fabric of nêhiyaw societies, the story requires braiding with other materials of nêhiyaw law and constitutionalism. […] Nêhiyaw social institutions aid in illuminating these relationships. […] As revitalization of Indigenous law “necessitates we find ways to hold the settler state to the original spirit and intent of our treaties,” language brings us closer to the meanings and intentions that Indigenous treaty signatories brought to them.[ix] Wîtaskêwin translates into ‘the place where we live on the land together’ or ‘living in peace together’. Another interpretation of the term is when “peoples establish relationships that are to be governed by the laws of wâhkôtowin and which are reflected in the kind of land-sharing arrangements created between the parties.”[x]
Wîtaskêwin is also multi-dimensional, as it applies to our familial, neighborly, and societal relationships. It is also only one of many ways to describe our treaty relations. Our kêhtê-ayak (old ones, or elders) used the term iteyimikosiwiyecikewina to describe treaties with the British Crown. This translates into treaties that are inspired by the manitow (Creator) and are “grounded in the laws of miyo-wîcêhtowin” or good relations.[xi] Okimaw miyo-wicihitowiyecikewin, another treaty term, translates to “agreements or arrangements establishing and organizing good relations or relations of friendship between sovereigns.”[xii] More abstractly, miyo-wîcêhtowin and wâhkôtowin (laws that provide obligations to assist each other and that govern our relations generally) offer overlapping principles of friendship and kinship that play a role in our treaty relationships.[xiii]
This brief introduction to the linguistic wealth within the term wîtaskêwin reveals the necessity to examine related terms that hold similar legal and constitutional knowledge. Wîtaskêwin – as a constitutional and legal term – cannot be atomized and held separate from the other terms of its relation, but relies upon them for a full description of treaty. A linguistic approach towards the heart of wîtaskêwin requires a relationship with nêhiyaw pimâtisiwin (Plains Cree way of living, or alternatively, Plains Cree constitutionalism).
Nêhiyaw âskiy: Land-based Law and Constitutionalism
Just as language and nêhiyaw narrative practices[xiv] offer directions understanding wîtaskêwin, we can recall our treaty obligations by visiting the valleys and hills where treaty was made. Kiyokewin (visiting) is necessary to have a living relationship with treaty. The story I provided above is a constituting story of the land that I grew up on. I was raised in Wetaskiwin, the city on the outskirts of the Maskwacîs communities (those of the Samson, Ermineskin, Montana, and Louis Bull Cree) in Central Alberta. The city’s name is a subtle corruption of the term wîtaskêwin. Aside from my knowledge of the treaty, I know the hills in other ways as well. I have rubbed dirt from them in my hands, have been chased by bees down paths that cut through them after coming too close to hives on summer days. I have gathered at night with friends on the hills and watched stars and generally teen-aged together amongst the poplar and aspen trees. I have tobogganed down one of its bumpier trails in wintertime with my cousins. And in moments where I disregarded one of our older familial beliefs that causes us to avoid owls, I have gathered barn-owl feathers along the ground. Just as the land is stitched into a collective nêhiyaw narrative memory, my own personal history becomes a part of this context.[xv]
Similar bundles of legal and constitutional meanings are on locations within nêhiyaw âskiy, where law remains similarly written into the land. Approaching the Neutral Hills from the vastness of the prairies, where they seem to rise like mountains above the long plains around them, provides a deeper understanding of their force in teaching the nêhiyaw and niitsitapi of loving kindness in sharing the land.[xvi] Southeast of Wetaskiwin is paskwawi-mostos sakihikanihk (or Buffalo Lake), a lake that was said to be given as a gift to the nêhiyawak through the kindness of the buffalo nation to provide nourishment and shelter for nêhiyaw peoples, especially during the winter months.[xvii] Southeast of paskwawi-mostos sakihikanihk, is mistasinîy (or the big stone), a large stone that our âcimowina tell us was once human who had the ability to shapeshift into a paskwâwi-mostos (buffalo). Lost by his human family as a child, he was taken in and raised by buffalo peoples. Upon learning of his human roots later in life, he chooses to turn himself to stone to avoid having to hunt his own kin.[xviii] The site of the Mistasinîy, on the elbow of the kisiskaciwani-sipiy (the swift flowing, or South Saskatchewan River) was long a ceremonial gathering place for many prairie Indigenous nations.[xix] This is not surprising if one understands the legal principles […] that the account of mistasiny teaches. And so on. If you were to run your finger across a map of nêhiyaw âskiy territory, you will find similar constitutive and legal events written into the land. Nêhiyaw âskiy not only shelters and nurtures, but also teaches law. It becomes constitutionally animated as it continues to nourish us through the stories of its creation.
The “Breathing Life” of Wîtaskêwin [xx]
So, as you can see, there are a multitude of directions that wîtaskêwin can take us in an examination of Plains Cree law and constitutionalism. As constitutional and legal ordering can be comprised of multiple centers,[xxi] nêhiyaw law and constitutionalism can be described as constellating by nature; the connection of multiple sites of constituting practices provides the strength of the constitutional fabric nêhiyaw peoples coordinate our lives together on. The ordering of our lives is determined by how we interpret the constitutive bodies hanging celestially above us, and how we relate nêhiyaw social institutions and practices to each other in complex and beautiful patterns.[xxii]
Non-human agency in our constitutive relations
Such ordering of course is not strictly ‘celestial’ but is grounded within the multitude of relationships with the non-human beings and things within the ecological world. It is this grounded voice – that of non-human agents – within our legal reasoning that animates this dissertation. It is the “original spirit and intent” of nêhiyaw treaty relationships to “uphold commitments to land, water, animals, flora and fauna.”[xxiii] As the accounts of Wîtaskêwin Sputinow and the Neutral Hills collectively speak, nêhiyaw treatymaking is not merely about setting strict governance and control of lands and waters but necessarily animates non-human entities upon nêhiyaw âskiy as active agents within treaty relationships. As the resulting relationships from treaty-making between Indigenous nations and Euro-Canadian controlled polities has generally been interpreted through Euro-centric interpretive processes, the personhood, sovereignty, and ultimately voice of non-human agents has been removed from treaties. The imposition of Eurocentric legal reasoning upon nêhiyaw âskiy has subverted kinship relationships with non-human beings and things to create merely property or commodity relationships, or to deny the existence of relationships entirely.[xxiv] I am fearful that Canadian constitutionalism’s primary focus on human-to-human relations without making constitutional and legal room for the animacy of the ecological world will continue to result in devastation to the good living of non-human beings upon nêhiyaw âskiy. As John Borrows observes, when we view our constitutive and legal dealings solely on a human-to-human level, we fail to acknowledge inherent limits to our relationships with the ecological world.[xxv]
Focused on developing the legal personhood of the environment, earth jurisprudence re-engages a relational view of the connection between humanity and the ecological world, understands that the health of humans is reliant upon the health of the earth, and thus seeks laws that aspire to reflect this relationship.[xxvi] A common trait within nêhiyaw legal thinking is this type of relationality generally. As Art Napoleon explains: “[a]n underlying assumption of this kind of relatedness is that it signifies a kinship not just to humans but also to all other living entities and spirit beings.”[xxvii] Napoleon’s use of ‘living entities’ is significant. Such relatedness within nêhiyaw tapwewin (Plains Cree truth) does not exclude lands and waters that Western thinking often holds as ‘inanimate’.
While nêhiyaw kinship relationships support this type of relationality expressed in ‘earth jurisprudence’, this dissertation distinguishes nêhiyaw pimâtisiwin from the epistemological path that earth jurisprudence takes.[xxviii] As I explore in the next chapter, the concept of the ahcâhk (or spirit)[xxix] within nêhiyaw thinking separates nêhiyaw constitutionalism from earth jurisprudence, as it is more concerned with the recognition of the autonomy of non-human beings and things, rather than the legal standing of non-human agents in human-centric legal processes. While earth jurisprudence provides non-human agents “human-like” stature within legal dealings or constitutional mechanisms,[xxx] Nêhiyaw pimâtisiwin treats non-human agents as autonomous beings, capable of their own culture and laws, and capable of the inter-societal practice of law. This influences our legal processes to seek treaty relationships, and how we seek consent for infringing upon the autonomy of non-human beings and things.
With regard to our obligations to nêhiyaw wiyasiwêwina, the old ones in our communities will often say, in one way or another, that someone living without a base in nêhiyaw pimâtisiwin is like a child caught out in a prairie winter storm, unclothed and unsheltered. I tend to think about this in a metaphysical sense, that there is necessity to be sheltered by nêhiyawâtisowin (Creeness). It recalls us to think about law as weaving […], that it is our responsibility to create a shelter through acting out nêhiyaw wiyasiwêwina. As young ones, we are bundled by nêhiyawâtisowin, furnished with teachings to shelter us from the outside storms. This is why we hold up our old ones (even while we acknowledge they are not perfect) because we have been lucky to have those older hands that are knowledgeable in working with the hides of our traditions, in sewing the strands of nêhiyawâtisowin that will furnish our cradleboards, in beading the âtayôhkêwina (spiritual stories) unto our vests. However, our cradling does not last forever. As we reach adolescence, grow into adulthood and then ultimately become these older ones, the tools for this cradle-making, shelter building, and star aligning have been turned over to us. We are given the responsibility to re-constellate our legal and social orders in our adulthood, allowing for strengthening, transforming, or even dismantling of our law and legal systems. Our four-bodied personhood[xxxi] provides us all the aspects to be full agents in these re-constellations, and thus our law.
Lately though, I have been thinking of this refrain in a literal sense. What if a loss of nêhiyaw wiyasiwêwina means we are literally caught unsheltered? What if our loss of kinship with the ecological world means it will one day be unable to shelter and nourish us? As hard as it is to imagine, our collective constitutional unkindness towards the ecological world has already created unnourishing environments. In this sense we are experiencing ohcinêwin, or retribution for our transgressions against the natural world. So I turn to nêhiyaw law, and one lesson in particular, that teaches us against letting our collective consumptive tendencies overrun us. I turn to our whetiko stories for lessons on kindness.[xxxii] Whetikos are known for their consumptive intentions and actions.[xxxiii] Within nêhiyaw âcimowina, wehtiko accounts have been the subject of a variety of angles of analysis, including as psychosis.[xxxiv] Hadley Friedland contends they are “best understood as a complex intellectual concept with a social and legal history.”[xxxv] While there are historical accounts of wehtikos and community responses involving incapacitation and death,[xxxvi] in some instances a whetiko can be healed (or have their consumptive tendencies suppressed) through a collective turn to miyo-wîcêhtowin. This is enacted through kindness and generosity, often by sharing food.[xxxvii] As whetikowak are burdened by a freezing heart, one particularly important community action is that we bring people who are suffering this closer to fire, and ensuring they always have a spot around it.[xxxviii] The invitation that started this chapter – to come closer to the iskotêw (fire) – is not only individual, but societal as well. In a small way, this dissertation invites the heart of Canadian constitutionalism to come closer to the iskotêw of the nêhiyawak. I hope this invitation is fruitful. There may be disagreements and some words that feel like jagged stones going down. I hope there will be some shared medicine within these words for us. Let’s seek out this warmth together.
[i] The ‘our’ referring to Plains Cree peoples. I am âpihtawkosisân nêhiyaw (mixed-rooted Cree or literally translated as ‘half-son’ Cree). I am currently not a member of a First Nation, though my family relations are from Samson Cree Nation. While the most recent changes to the Indian Act have assured me ‘Indian- status’ according to Canadian law, I account for my inclusion into Plains Cree peoples through my participation in our shared obligations as nêhiyawak, and commitment to nêhiyawisowin (Creeness).
[ii] This is one translation of the origins of the town Wetaskiwin, Alberta. Other interpretations will be discussed.
[iii] See Hugh Dempsey, Maskepetoon: Leader, Warrior, Peacemaker (Victoria: Heritage House Publishing Company, 2010) at 184-5.
[iv] See Donna Feir, Rob Gillezeau & Maggie Jones, “The Slaughter of the Bison and Reversal of Fortunes on
the Great Plains” (Department Discussion Paper, University of Victoria Department of Economics), (2017)
online: University of Victoria. <https://www.uvic.ca/socialsciences/economics/assets/docs/discussion/DDP1701.pdf>
[v] Dempsey, supra note 3.
[vi] See Pauline Johnson, E-kawôtiniket 1876: Reclaiming Nêhiyaw Governance in the Territory of Maskwacîs through Wâhkôtowin (Kinship) (Ph.D. Dissertation, University of Western Ontario Graduate Program in Anthropology, 2017) [Unpublished] at 166.
[viii] Ibid at 152.
[ix] Heidi Kiiwetinepinesiik Stark, “Stories as law: A method to live by.” Eds. Chris Andersen and J.M. O’Brien, Sources and Methods in Indigenous Studies. (Abingdon, Oxon: Routledge, 2017) at 255.
[x] Harold Cardinal & Walter Hildebrandt, Treaty Elders of Saskatchewan: Our Dream is That Our Peoples Will One Day Be Clearly Recognized as Nations (Calgary: University of Calgary Press, 2000) at 41.
[xi] Shalene Jobin, Cree Economic Relationships, Governance, and Critical Indigenous Political Economy in Resistance to Settler Colonial Logics (Ph.D. Dissertation, Department of Political Science and Faculty of Native Studies, University of Alberta, 2014) [unpublished] at 121.
[xii] Ibid at 121.
[xiii] Cardinal & Hildebrandt, supra note 10 at 25–34.
[xiv] Neal MacLeod, Cree Narrative Memory: From Treaties to Contemporary Times (Saskatoon: Purich Publishing, 2007).
[xv] As Neal MacLeod points out, if we view acimowina as a collective practice, then no speaker holds the full story, but is integral to the collective. Thus my experiences at wîtaskêwin sputinow, however mundane they are, reflect upon the larger treaty narrative. Ibid at 6.
[xvi] See the story of Neutral Hills in Anne Speight, The Shadows of the Neutrals and Open Memory’s Door (Coronation, AB: Old Timer’s Centennial Book Committee, 1967) at 1-3.
[xvii] The story of creation of Buffalo Lake, passed orally in my family, involved a buffalo being hunted and producing water, not blood, out of its wound. The water continued to spill out of the wound until it became the shape of a buffalo. Communities would gather at this new lake as it became a place of refuge and was plentiful in the food and shelter provided around it.
[xviii] Macleod, supra note 14 at 23.
[xix] The mistasiny was submerged in the damming of the South Saskatchewan River in 1967, and currently sits beneath Lake Diefenbaker.
[xx] I borrow the phrase ‘breathing life’ to connote revitalizing lost treaty conceptions from Aimee Craft in Breathing life into the Stone Fort Treaty: an Anishinabe understanding of Treaty One (Saskatoon: Purich Publishing, 2013).
[xxi] However, part of the categorization of the character of Indigenous legal orders as ‘decentered’ is influenced by the inability for people outside of an Indigenous legal order to recognize and ‘read’ the texts of Indigenous law and to recognize the legal institutions within Indigenous societies. As will be discussed in the last chapter, there is a fluidity to nehiyaw governance that allowed for multiple centers to come together at certain periods, for example during conflicts and wars, as well as during periods of renewal in the summer.
[xxii] These directions are by no means the only locations of law but serve as single points within a constellation of constitutive events, textualizations and institutions. Deciphering the pattern in our stars is not an individual endeavour; we require the guidance of our kehte-ayak (our old ones) and those of our ancestors accessed through the lessons they have embedded in stories and language, and through ceremonial relationships. But we also have individual agency in our interpretations, and a persuasive voice in the collective. The ordering of our stories, our ceremonies, the law written into the land, and the guidance within our language gains persuasive authority through our guided constellating; we teach it to our children and raise up those who we trust in their reading of the stars to be our leaders who will speak for us from this knowledge. It is both the multitude of constitutional and legal resources and the guided interpretative processes that make a living nêhiyaw law and constitutionalism.
[xxiii] Stark, supra note 9, at 255.
[xxiv] You would be hard pressed to find an acknowledgement of ancestral helpers within the common law, as we do within nêhiyaw law and governance.
[xxv] John Borrows, “Earth Bound: Indigenous Law & Environmental Reconciliation” in eds. Michael Asch, John Borrows, & James Tully, Resurgence and Reconciliation: Indigenous-Settler Relations and Earth Teachings (Toronto: University of Toronto, 2018) at 50. [Borrows, Asch, & Tully, Resurgence and Reconciliation]
[xxvi] See David Humphreys, “Rights of Pachamama: The emergence of an earth jurisprudence in the Americas” (2017) 20:3 Journal of International Relations and Development at 459.
[xxvii] Art Napoleon, Key Terms and Concepts for Exploring Nihiyaw Tapisinowin in the Cree Worldview (Masters Thesis, Faculty of Humanities, University of Victoria, 2014) [Unpublished] [Key Terms] at 86.
[xxviii] John Borrows, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010) at 85.
[xxix] Danika Billie Littlechild, “Transformation and Re-formation: First Nations and Water in Canada” (LLM Thesis, University of Victoria, 2013) [Unpublished] at 16.
[xxx] See Christopher Stone, “Should Trees Have Standing? Toward Legal Rights for Natural Objects” (1972).
[xxxi] Nêhiyaw translates into ‘four-directioned or four-bodied peoples, thinking of the emotional, spiritual, physical and intellectual aspects of people.
[xxxii] For Anishinaabe conception of Wehtiko within literature, see Louise Erdrich, The Round House (New York: Harper Collins, 2012).
[xxxiii] See Hadley Friedland, The Windigo (Windigo) Legal Principles: Responding to Harmful People in Cree, Anishabek and Saulteaux Socieities – Past Present, and Future Uses, with a Focus on Contemporary Violence and Child Victimization Concerns (LLM Thesis, University of Alberta Faculty of Law, 2009) [unpublished] at 29.
[xxxiv] Lou Marano et al, “Windigo Psychosis: The Anatomy of an Emic-Etic Confusion [and Comments and Reply]” (1982) 23:4 Current Anthropology 385.
[xxxv] Ibid at 39.
[xxxvi] For example, Swift Runner, a Cree man, was sentenced to death for the deaths of his wife and children after he consumed them in the winter of 1878. See Robert Brightman, “The Windigo in the Material World” (1988) 35:4 Ethnohistory 337 at 352-3.
[xxxvii] Robert A Brightman, Ācaðōhkīwina and ācimōwina: Traditional Narratives of the Rock Cree Indians (Regina: Canadian Plains Research Center, 2007) at 106.