Red Earth Cree Nation legal orders

Mamawe Kohtawinaw nihkimihikonan ohi; ta yapichitahyak, ta pihmachisowak, ta pamihsowak, ta wayohtisiyak, ta wiyasowatisowak, ekwa ta nahnakichisowak. (Our Creator gave us all that we would need to be self-sufficient, self-governing, to exercise self-determination and to live under our own laws).

Legacies of colonialism and racism have allowed little understanding in modern Canada about the First Nations' legal inheritances. The establishment of a new post-colonial order in Canada in 1982, where inherent and treaty rights of the Aboriginal people were made part of the supreme law of Canada, has been a first fragile step toward the revitalisation of the First Nations' legal inheritances and to the maturity of Canada as a nation.Footnote 31

An introduction to the principles of Cree Law can be found in the Truth and Reconciliation Commission final reportFootnote 32 as follows; pimâtisiwin (life), pimâcihowin (livelihood), pâstâhowin (breaking laws against humans), ohcinêwin (breaking laws against anything other than a human), kistayimowin (respect), mino-ohpikinâwasowin (good childrearing), wahkôtowin (kinship), and tâpowakêyihtamowin (faith, spirituality). These eight principles confirm an identity distinct from Canadian legal systems. These principles were not institutionalized but rather internalized by the Cree individual. Acting in harmony, these foundational principles are the law. Nonetheless, these principles are a generic interpretation of Cree laws. Though similarities exist, each Cree nation reserves the right to bring forward their own distinct principles. For example, RECN would include mihyotisiwin (representing kindness, or the act of being kind), kistayimowin (to be respectful, to have respect), and tapahtayimowin (having humility). Importantly, Nehiyew (Cree) words are not often directly translated into singular nouns or verbs, rather the meaning of the word is often better reflected as describing an action or responsibility.

Generally, Indigenous peoples transmit their laws and rules of engagement through interpersonal interactions. The value of transferring law through vis a vis engagement has become as depreciated as Indigenous contributions to the history of Canada. Perhaps by not leaving the maintenance of healthy relationships to be guided by pen and paper, Indigenous peoples made the complexity of our laws appear simple. That is, until one tries to practice Indigenous law and its intricately interwoven considerations.

For RECN, their laws are found primarily in interactions with their total environment.Footnote 33 It is from these laws that RECN takes care of themselves, their lands, and ensures collective and individual wellbeing for themselves and other beings they share the land with. From these laws they have maintained a strong and balanced society with humility, respect, and honour. RECN continues to demonstrate a continuity in their own legal systems, but requires an adaptive response from colonial legal systems to have those laws properly and fully “recognized and affirmed”—as Canada has now claimed to do so for over 40 years. Canada’s claims of Indigenous legal system revitalization must be met with the resources required to restore those legal systems, including time and funding for honoraria to knowledge keepers, researchers, and those involved in the implementation of that restored legal system. Further, Canada must amend their own laws to align with the original laws of the land, not merely to acknowledge Indigenous legal systems, but to establish reconciliation with them. This approach seeks to move away from a legal system rooted in racial superiority that was imposed without consideration for the unique identity of RECN, and other Indigenous nations. The resurgence of RECN Legal Traditions does not require permission or validation from those who came after it, ignored it entirely, or have intentionally suppressed it.

Prior to the arrival of the ‘newcomers’, the customary law and legal traditions of RECN peoples were effective and enforceable. Lamentably, the ‘Day After Treaty’ was not met with honour but by systematic and deliberate displacement of Indigenous identity by the Crown’s self-serving legislation. RECN’s peoples’ lives are now controlled under a consolidated code of legislation called the Indian Act and subjected to other federal and provincial legislation.

The Spirit and Intent of Treaty, which was ratified under RECN customary law and legal traditions, and the Crown’s constitutional legislation and legal text, creates a bi-lateral relationship between nations. With each nation delegated specific rules and having certain obligations and duties for the fulfilment of political covenants, economic wealth, judicial orderliness, and social healthiness.

RECN law is based on knowing one another, their circumstances and what is good. RECN subscribes to the notion of subsidiarity, which states that the best and most legitimate government takes place nearest to the people who are governed. Subsidiarity advocates for agreements on sharing tasks rather than authority to perform tasks.

It is not about putting our own people in prison, as though they are expendable, and making them think about what they did, like sending children into a corner. It is about communicating with them, valuing their identity, restoring their relationships, and correcting their worldview, thus bringing everyone back into harmony. How can we coexist otherwise?

Upholding the law is a responsibility of everyone, not just a body or select individuals with no personal involvement to the wrongdoer, far removed from the individual’s personal life. Indigenous justice is a being, a people, a spirit, not a department. And it is not led by singular authority. It is well known that Indigenous nations, or most of them, are made up of decentralized governments. With that said, it is not about what an individual can do for the community, it’s what a community can do for themselves.

The relationship between RECN and the Crown can be summarized as being treated as her Majesty’s red children. Again, this misconception and interpretation has misled many to view Indigenous people as wilfully subordinate to the British monarch. RECN Legal Traditions are those formed of a matriarchal lineage. Women, in balance with men, shared in the authority and decision-making processes of the Nation. They held, and do hold, great respect under the RECN laws of Wahkotowin (being in relation to one another). Referring to the Queen as “the Great Mother” was symbolic of an Indigenous title of respect. However, intentionally, Alexander Morris (the then Treaty commissioner of Treaty 5, circa 1875) and others manipulated this term of respect to present the Indigenous nations as having surrendered an authority to the Crown of Britain and Ireland. The ideology that has grown from this manipulated view has created a severe imbalance in the relationship between RECN and the Crown.

Implementing RECN restored legal system is one step towards resolving those imbalances and creating a new relationship with the Crown. A true nation-to-nation, government-to-government relationship based on what our ancestors have taught us is the Spirit and Intent of the Treaty: to live in harmony, side by side, and share the responsibilities that were bestowed upon us by God, the Creator.