Master of Laws
Constitutionalism is an Anishinaabe legal tradition. This thesis explores modern Anishinaabe constitutions in Ontario, as they connect to traditional constitutionalism while meeting the unique governing needs of contemporary Anishinaabe First Nations communities. I address the scholarly and legal context in which these constitutional documents have been produced and shed an empirical light on these understudied legal instruments. Two questions shape this thesis: 1) what are the defining characteristics of Anishinaabe constitutions in Ontario; and, 2) what is their function within Anishinaabe communities? To answer these questions, I review both ratified and draft Anishinaabe constitutional documents of member communities of the Anishinabek Nation according to three elements of constitutional development: culture, power, and justice. I find that these constitutions, though comparable to Western constitutions, are distinctly Anishinaabe legal instruments that respond to the settler-colonial state while prioritizing the restoration of Anishinaabe law-making powers and jurisdiction. Modern, positivist Anishinaabe constitutions in Ontario seek to nourish Anishinaabe ways of living as they look toward the past, present, and future needs of the communities that produce them. I conclude that, whatever the state of current scholarly discussions on the theoretical compatibility of Indigenous law with state law, these constitutions exist as a form of practical self-empowerment.
Summary for Lay Audience
A number of Anishinaabe First Nations communities throughout Ontario have written and begun using constitution style documents that contain some similarities to the Canadian constitution, as well as many unique points that come from Anishinaabe tradition. These constitutions contain both rules about how local government must be formed and guiding principles on how people should aspire to live. For the most part, they are part of an effort to create stability in advance of what many people hope is an agreement between the communities (in the form of the political advocacy organization, Anishinabek Nation) and the Canadian federal government that would allow these First Nations communities a great more deal over their operation. Based on these points, Anishinaabe constitutions in Ontario can be understood as important documents. They are important documents. Even so, they are missing from academic conversations on how Indigenous laws and governance are growing today.
The purpose of this paper is to draw attention to Anishinaabe constitutions – what they share in common and what their role is in the operation of governance in the communities that have them. To examine these points, I first explain how Indigenous law might be understood, especially because people who are not from Indigenous communities are used to recognizing in the form that we see the most – how the government produces law. I then provide information on how Indigenous law has been undermined in the context of Canadian law. I move on to explain how constitutions – something that non-Indigenous people are used to thinking of as related to Western or European law – is actually also an Anishinaabe legal tradition. It is Indigenous law as much as what was discussed in the previous section. The next part of the thesis is an analysis of Anishinaabe constitutions to reveal how different communities approach issues in a way that is recognizable to outsiders, but which makes space for the use of Anishinaabe law. I conclude that Anishinaabe constitutions are important for governance and the empowerment of communities, even if their future power against interference by the Canadian government remains unclear.
Derynck, Leaelle N., "An Anishinaabe Tradition: Anishinaabe Constitutions in Ontario" (2020). Electronic Thesis and Dissertation Repository. 7303.
Available for download on Wednesday, August 31, 2022