Like most law professors in North America, I teach first-year students using the casebook method. The casebook method has, since the turn of the nineteenth century, been the dominant pedagogic method deployed in law schools across the continent. Boiled down to its core, the case book method uses edited versions of cases to illuminate legal principles. Each case in the casebook method is said to stand for a particular legal proposition. Law professors in virtually all common law jurisdictions use the casebook method to build principle upon principle and, in so doing, illuminate the contours and principles that make up the common law.
Hadley Friedland's masterful The Wetiko Legal Principles: Cree and Anishinabek Response to Violence and Victimization applies the casebook methodology to a corpus of stories about Wetiko. Some of the stories come from prior academic studies. Some come from primary research conducted by Friedland in a variety of Cree and Anishinabek communities and typically related to her by elders and other trusted knowledge holders. It is surely not the case that Friedland has compiled in her notes the complete list of every Wetiko story, but she has assembled a significant corpus of stories and from these stories she aims to draw a series of legal principles surrounding Wetiko.
Wetiko, or windigos, are typically people who are transformed into something they weren't before—something dangerous. I say typically, because in some stories the Windigos are described as giants, and the origin of these giant monsters is usually not elaborated. In extreme cases, Wetiko and Windigos become cannibals. In Friedland's research, it is important to point out that the corpus of stories are not “stories” in the sense that all the narratives are of an ancient past; some of the stories Friedland relies upon come from contemporary interviews with community members who have had experience treating persons who are at risk of turning Windigo.
Friedland organizes the stories about Wetiko around what she understands to be core legal principles creating obligations and rights of both community members who are healthy, and those who are becoming or who have become Windigo. That Windigo have rights, including rights to due process is crucial: traditional Cree and Anishinabek stories of Windego that have advanced to the cannibalism stage, presenting a clear and present danger to the community, show that when all else fails, Windigo such as these are permanently incapacitated (that is, killed).
There is an inherent risk in applying the casebook methodology to stories instead of cases. Of course, legal cases and judicial decisions are a kind of story. Cases set out facts and provide judicial reasoning. Cases apply prior precedent and established principles to a set of facts for a determinate outcome. Each case only arises in court and leads to a judicial decision because there is something unique about the facts of the case; no one litigates a case where we know what the legal outcome will be. Lawyers are too expensive and legal procedures permit applications for summary judgment, judgments that will be applied if the case at hand is precisely the same as for a previous case where we already have a judicial decision on the facts. So cases are clearly a kind of story. But they are a precise and particular kind of story. They are law stories, stories that tell us what the law is.
If we take a single Anishinabek or Cree story in isolation, and we ask what legal principles are illuminated by the story, it is entirely possible for a group of twelve persons to come up with twelve differing interpretations and principles illuminated by the story. I think that is an unlikely outcome; the lessons of most stories are fairly clear in most cases but surely not always. In judicial decisions, there is little interpretation, or what interpretation there is, is contextualized by the facts of the case, and the intention of the judge writing the decision to be clear about what it is being judicially determined. Stories are, by their nature, open to broader interpretations.
In a recent class, I had students read a Cree story. We then worked to interpret the story, and I was surprised initially at how we generally agreed on the principles demonstrated by the story. But the more we talked, the more we began to see different interpretations. It was not possible for twenty of us to agree what principles a story illuminated, what principle was the most important and, in cases of conflicting interpretations, what rule of paramountcy would obtain. So there is a danger in applying the casebook methodology to stories, because stories are not cases.
Friedland avoids this interpretive dilemma by setting out not a single story for interpretation but a corpus of stories. She is thus able to see that, for example, in virtually all the stories, there is a clear process for how a community should deal with Windigo or with persons who are at risk of becoming Windigo. A clear principle is that due process exists in these contexts. Community members are obligated to offer help, to try and cure the Wetiko with medicines and kindness. Another universal principle is that when a community is present, decisions about the fate of a person who has turned or is turning Windigo, are matters of community consensus. No single person can make the decision to execute a Windigo, except sometimes they can.
Friedland relates stories of Wetiko who follow and attack a single family, and the Windigo is killed to save the family without the opportunity for a community council decision. But, even here, Friedland is able to have the principle (community consensus is required) and a way to distinguish a different outcome based on the facts (the family is alone and in need of immediate self-defense). And that is how Friedland avoids the possibility of conflicting interpretations of stories: she doesn't rely on any single story to underlie the legal principle being illuminated. By using a corpus of stories, Frieland demonstrates legal principles that arise through the reading of many stories and, because of the volume of stories employed, she is able to distinguish outlier principles that trump the usual outcome as in, for example, the family that killed the Wetiko without the procedure of a community meeting.
Standing on its own, Friedland's work, if she merely illuminated a series of legal principles, would be an important but limited extension of work begun by John Borrows in the 1990s. But Friedland goes well beyond uncovering Wetiko legal principles. She applies the methodology brilliantly at a crucial time when Indigenous people are seeking ways to make traditional law relevant to contemporary realities. Friedland likens people at risk of going Windigo or who are fully Windigo or who are on the path to transformation to child sexual predators. These predators, like Windigos, are somehow outside of the community in which they inhabit: they have dark thoughts and impulses, they seek to harm the vulnerable, their desires are taboo and unhealthy, they are dangerous and they need to be dealt with by members of the communities and homes in which they inhabit.
Friedland shows how the legal principles that govern treatment of Wetikos can be used to treat and address child sexual predators. The community has a duty, a legal obligation, to try and help people at risk of becoming Wetiko, and that obligation begins by asking the person if they need help. This procedural step pushes the dark issue into light: “We see that you are having trouble controlling your emotions and impulses. Do you need help?” Once a community is aware of someone becoming Windigo, the community is under a legal duty to carefully observe that person and to place extra close watch over vulnerable community members. There may or may not be Windigo in the modern world, but there are child sexual predators. The residential school system served as a training ground for generations of abusers, and we are lying to ourselves if we do not see or acknowledge the very real danger these persons pose in our Indigenous communities. What Friedland demonstrates is the Cree and Anishinabek law has processes and methodologies for addressing the darkness.
Indigenous legal traditions are more and more the subject of academic debate, community engagement and intellectual curiosity. People often wonder what these ancient legal traditions offer present day persons and communities. Friedland's brilliance is in showing that traditional laws are not only relevant to contemporary situations, traditional Indigenous laws are perfectly suited to the interpersonal relations of present-day persons. After all, people are just people. We may have adopted new technologies, but we are today no less likely to fail not just to rise to an occasion but to sink to depths of depravity if we have been conditioned to do so. Indigenous law is, Friedland demonstrates, a method of regulating conduct, addressing problems in our communities, and realizing that traditional stories hold many teachings. These teachings are laws that model behaviours in order to resolve problems, address sickness and confront dangers to the community. Has there ever been a time when these teachings were needed more than now?
