Indigenous Ways of Being and Knowing (A Try): An Exercise in Family Law and Sex-O at UVicLaw

(The featured image entitled “Sen” is the work of Uumati Kisoun-Inuarak, more of her work can be found at http://www.uumati.com)

 

This post contains an exercise that I designed for my Family Law class at UVicLaw (Law 322) in the Fall of 2016 and then revised for my Sexual Orientation and the Law seminar (Sex-O) in the Fall of 2017.  My goal with both classes was to respond to Call to Action 28 by raising as central to our study — both of families and of sexual identity — issues of colonialism.  And, my goal was to do it at the outset of the course so those issues would serve as a lens through which we approached all questions throughout the term.

My hope here is to share what I did in those classes (the try that it was) so that anyone could pick it up, adapt it slightly, and use in their own course.  So, I will outline in a “how to” kind of way, what I did in both classes.  And then at the end I will reflect a bit on how it worked.

I.  Family Law.

Family Law at UVic is an upper level elective course with a cap of 50 students, taught twice a week for 90 minutes.  It is taught with two volumes of materials, the first addressing family formation and the second addressing family breakdown.  Given the complicated ways that law impacts our understanding of “the family” the first part of the course is evaluated by essay with the subject chosen by the students.  This enables me some pedagogical freedom.  The second part of the course addresses the more conventional issues of divorce, custody, division of property and support, and is evaluated by take-home examination.

There is not a single issue that we address in family law that will not in some way or shape impact someone in the class.  This is something we address explicitly at the outset of class; we know what “the family” is in family law because we have lived them.  The need to recognize that in class participation is critical, and wherever there is a more embodied class, like this one, I ensure, as best I can, that students know the content we will be covering.

The role that colonialism plays in family law in BC has always been central to the course, particularly on questions of family formation, but in Fall of 2016, I decided additionally to address the TRC’s calls to action with a standalone class.

In a semester of 25 classes, this was the third class coming after a introductory class, and a class that set out histories, definitions and legal change, and before dealing with constitutional frameworks Reading Outline Law 322 2016.

The question posed to the class in advance of class was “how does the legacy of residential schools inform our understanding of the family and family law in 21st century Canada” and the reading for the class was the Introduction to Honouring the Truth Reconciling for the Future, Summary of the Final Report of the Truth and Reconciliation Commission of Canada (pages 1-21) Executive Summary TRC1 and then excerpts from The Survivors Speak, A Report of the Truth and Reconciliation of Canada (pages 1-22, 31-46, 99-108, 201-203) The Survivors Speak TRC2.

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The students were also asked to come to class with an example of when they had seen the story of residential schools in popular media for sharing with their classmates; and with a reminder of the nature and difficulty of the subject matter we will address.

At the outset of class the students had an outline to show the four components of the class: introduction to TRC28, sharing their popular culture moments, Briefing a Story, and then discussion of the TRC and its connecting significance to the course as whole (TRC class outline).

Introduction. As the class was settling I had set up my child’s turntable, and was playing  a vinyl version of Gord Downey’s The Secret Path.  I begin by very briefly addressing TRC28 and then move to discuss the history of residential schools as the explicit policy of the Canadian government to eliminate Indigenous governments and legal traditions in Canada through assimilation.  And specifically, how at the heart of this cultural genocide was the need to disrupt the family, the unit recognized y then governments as the primary vehicle through which Indigenous laws and values were shared and learned.

Popular culture.  I then divided the class up into groups of four or five, giving them a few minutes to share with each other how residential school issues have been made visible to them in popular or other media.  After some time I then charted them up on to the board and later provided the list as a handout with some space for discussion about where, when and how these issues should be taught Shared residential school resources 20-09-16.

Briefing a story. In their same groups I then introduced a case briefing exercise drawing on the methodology developed by Drs Val Napoleon and Hadley Friedland and employed at the heart of the work of UVic’s Indigenous Law Research Unit (ILRU).  This part of the work may seem daunting, but here is where I really encourage colleagues to give this work a try.  If you can do a workshop with ILRU that would be ideal.  But if not there is detailed information about the history, ethic and structure of the methodology in ILRU publications like their Gender Inside Indigenous Law Toolkit or in scholarly writing like Hadley and Val’s article, Gathering the Threads.

Since its origins, the people of ILRU, Val, Hadley, a cohort of students, researchers and others, began to look for Indigenous law sources and resources in the myriad places they have been recorded.  And drawing on the work of Dr John Borrows and others, ILRU began to retells stories and cases, using an adaptation of the common law “case-method” to identify legal principles within single stories, to address the resurgence and revitalization of Indigenous laws.

So, in each group I gave them a publicly-accessible story that has formed part of ILRU’s work.  One of the students in each group read the story aloud, and then the students set out to use the framework, shared by ILRU, to prepare a “brief” of the story.  To move through stereotypes and assumptions, to see Indigenous laws in the present tense, and to see legal concepts and categories, legal principles, legal processes for decision-making and problem-solving.

Screen Shot 2018-01-06 at 6.30.58 PM

(Art by Dr. Val Napoleon)

Case brief:     Name of story with full citations

Issue/Problem: What is the main human problem we are looking at within this story?  What is it that the story is trying to tell us?  It may be more effective to frame this as a question that one can then answer through the analysis.

Facts:  What facts in the story matter to this particular issue?

Decision/Resolution:  What is decided that resolves the problem?  If there is no clear human decision, what action resolves the problem?

Reason (Ground/Ratio): What is the reason behind the decision or resolution?  Is there an explanation in the story?  If not, what can be inferred as the unstated reason?  What is the “why” behind the decision or response?

Bracket:  What do you need to bracket for yourself in this story?  Some things may be beyond your current frame of reference but are not necessary for the case analysis.  Conversations will inevitably flow from what is bracketed

The stories I gave my class that year were all stories about children being removed from or returned to communities.  The ones I used are here: Buffalo ChildThe Girl Raised by a Grizzly BearThe Caterpillar; and The Boy who was Raised by Wolves.

Time was of course an issue, and was best spent by giving them lots of time to struggle with pulling the principles out of the stories, making sense of them, and seeing the connection to our work in the course.  I used my time moving from group to group, posing questions and working to keep them on track.

Truth and Reconciliation. I concluded class by offering some space for reflections from their briefings, and then by returning to the broader work of the TRC, and our work in family law.

II.  Sex-O

Sexual Orientation and the Law (Law 357, lovingly called Sex-O by the students) is an upper year seminar, theoretically taught every other year.  The class is twice a week for 90 minutes, and the methodology is one that draws heavily on embodied pedagogy.  The first class of the week is a discussion class, readings based, and the second class puts those readings into action.

In my 2017 seminar, I chose to import the lesson plan that I had used in family law with slight modification.  This class on Indigenous stories was the third of three classes at the outset of the course aimed at locating ourselves in place, space and law and to recognize the connections between Indigenous laws and colonial constructions of gender.  The first week of the course including an adaptation of Pulling the Weeds – by Suzanne Lenon, Kara Granzow & Emily Kirbyson shared on this blog, and the second week included a discussion of colonialism, Indigeneity and queer legal theory, to set up the TRC exercise.

So, similar to family law, this exercise sat right at the outset of the course so that students would be thinking about and drawing on these materials through their work Reading outline Sex-O 2017.

The reading for the week including the following: SexO readings 12-09-17 and so the students were asked to come to class with familiarity of the ILRU methodology.

Introduction. I did a similar introduction as I had in family law, but with the focus on the role that colonialism plays in our understanding of sexuality, or as authors Drs Sarah Hunt and Cindy Holmes articulate “further our reflections on decolonizing a queer praxis.”  This was supplemented by the students having already spent a whole class engaging with the theoretical materials.

We then watched one of ILRU’s videos — Indigenous Law Gender and Sexuality to set up our conversation about how gendered power dynamics shape legal interpretations, and in particular how Indigenous ways of knowing and being are engaged in our collective effort in queering law.

Briefing a case. I then, similarly, broke them into groups of 3 or 4 (smaller groups due to the smaller seminar size), set up the ILRU exercise, and then gave them each a story that I chose from the Gender Inside Indigenous Law Casebook.  The stories I chose were: Hu’pken (Secwepemc); Sn’naz (Secwepemc); Hairy-Heart People (Cree); Swan and Some (Dane-zaa) and Dog Peed on Arrow (Dane-zaa).

They then similarly worked with the ILRU case brief (as shown above) with the additional questions drawn from the work of Dr Emily Snyder:

Questions about legal processes: What are the characteristics of legitimate decision-making processes? Who is included? Is this gendered? Who are the authoritative decision makers?

Legal responses and resolutions: What are the responses? Do these responses have different implications for women and men?

Legal rights: What should people and other beings be able to expect from others? Are any of these expectations gendered? Are certain rights overlooked?

General gender dynamics: Are both women and men present in the material? What are they doing or saying? In what contexts do women and men appear?

Conclusions. Again, time was not our friend, but after considerable engagement, we came back to the large group to see what they had pulled out of the stories, and how the primarily gendered issues translated into questions of sexuality.  We then stepped back to the work of the TRC as a whole, and concluded by thinking through, collectively, how knowing and continuing to engage with the TRC, particularly the history and legacy of residential schools, matters to our study of sexual orientation and the law.

III.  Self-reflection

I think to really know how these classes worked, you have to ask the students.  I hope that some of them will take up the comment features from this blog and let you all know. From my perspective as an educator, they worked really well.  First, issues of Indigenous ways of knowing and being grounded both of those courses from the outset.  And that really seemed to matter; visible in classroom discussion and in their essays and projects.  Second, engaging with Indigenous stories is something that our students do in various places at UVicLaw.  And there the work often does double-duty, demonstrating the significance to Canadian law of the resurgence and revitalization of Indigenous legal orders, on the one hand, and showing how all law is stories, on the other.  Third, the embodied nature of the exercise — the reading aloud, the sketching out a case brief on flip chart paper, the vulnerability of it — seems to affect a power shift in the class.  Right from the outset these students are talking to each other about things that really matter, and doing that with respect, creativity and openness.  Modelling dynamic learning can free students to try different evaluative methods themselves.

Finally, as a non-Indigenous instructor, doing this work can be terrifying at times.  The intergenerational trauma that some of our students live with, and the gravity of bringing issues of cultural genocide into law school teaching, is huge.  But my parting words would be that it so important to try.  To self-educate, definitely, but to not shy away from exercises, like this one, that with a little bit of set-up can wreak huge benefits.

I have tried to include all of my materials here, but super happy to talk more about this with anyone who wants to give this a go, too.

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Going Home Star

going home star

 

I saw the Royal Winnipeg Ballet’s Going Home Star on Saturday night in Victoria.  (Read a review here: http://www.cbc.ca/news/canada/manitoba/rwb-s-going-home-star-truth-and-reconciliation-is-inspired-and-inspiring-1.2785096).  It is an extraordinary piece of art and emotion, a choreographed telling of the legacy of residential schools in Canada, danced by by Canada’s pre-eminent ballet company.

As with most moments of art and law, I left the Royal Theatre with my heart and brain on fire, and wishing that we had had the opportunity to teach this performance in the law school classroom.  Or, alternatively, to have transformed the theatre into a place of learning for all our students. Thinking about this performance as a jurisprudential text brings many of the conversations we have been having about TRC Calls to Action 27, 28 and 50 to mind.  Some thoughts.

First, it reminds me of some of the dangers and concerns of creating mandatory course offerings.  I bought the tickets as a gift for someone close to me, someone who ultimately couldn’t come.  As a settler, I can often lose sight of the embodiment of colonialism, no matter how much I try to keep that present.  My friend carries the imprints of intergenerational trauma on her body.  And while lots of people around us commented on how much she would have loved the performance, her inability to be there wasn’t at all about whether she would have appreciated the art or not.  Even in the face of extraordinary beauty, the vestiges of colonialism can cause unthinkable pain.

Second, it reminds me that experiential education matters.  The performance itself, the ballet, the stage, the costuming, the dancing, was exquisite.  But the experience was also the drummers and their humour, the words of the Artistic Director and the audience response to the acknowledgement of the territories, the words of Grand Chief Cook about his own experience as a residential school survivor reading words from his grand-daugher’s IPad, the recognition of the survivors in the room and of the community that had paid for those tickets, the reminder that if we needed to stand up and leave the performance at any moment, content or otherwise, not only was that fine, but that there would be people to talk to.  It was feeling the Royal Theatre on its feet at the end.  The ballet was beautiful, but the layers of bark and sap and sinew that surrounded it made it living.

Third, there were elements in the performance, like points of law in a legal decision, that were jarring.  It was a constant sensory onslaught of mind, body and spirit.  The music, the throat singing and the spoken word offered affect to the story being told through movement.  The set and the use of the visual was engaging and provocative.  It made me care for the actors in the story, protagonists and villains, but it also made me worry about the context and the hurdles and obstacles presented there.  And I left thinking about representation, about synchronicity, about who keeps stories and who tells them.  I would love to think that when I teach a class I can do all of those things for my students who I know to be a mix of visual, auditory, and kinesthetic learners.

I know this ballet is near the end of its run.  I hope that others fortunate as I was to see it, will write about it, and what it offers those of us working to create a #ReconciliationSyllabus and more resources for an adequate response to the TRC in Canadian law schools.  I am very grateful and inspired to try to do more within our classrooms, wherever they may be, on this and the other pressing issues of our time.

 

The Wunusweh Lecture in Aboriginal Law

 (Image: Brea Lowenberger @BreaLowenberger)

This year the annual Wunusweh Lecture in Aboriginal Law at the University of Saskatchewan’s College of Law was focused on the questions posed by the TRC to the Legal Academy.  The presenters were Aimée Craft (Assistant Professor of Law University of Manitoba, and Director of Research, National Centre for Truth and Reconciliation), Karen Drake (Assistant Professor of Law, Bora Laskin Law School, Lakehead University) and Gillian Calder (Associate Professor of Law, University of Victoria).

A link to the presentation can be found here.

 

 

Dean Jeremy Webber’s post at slaw.ca on TRC Recommendation #50

Check out this August 4, 2015 post at slaw.ca by UVic Law Dean Jeremy Webber:

http://www.slaw.ca/2015/08/04/the-law-schools-and-the-future-of-indigenous-law-in-canada/

Webber argues that in addition to measures taken by law schools to respond to the TRC Call to Action on the curriculum for lawyers and law students, legal educator should pay attention to the TRC Call to Action #50:

  • In keeping with the United Nations Declaration on the Rights of Indigenous Peoples, we call upon the federal government, in collaboration with Aboriginal organizations, to fund the establishment of Indigenous law institutes for the development, use, and understanding of Indigenous laws and access to justice in accordance with the unique cultures of Aboriginal peoples in Canada.

Webber writes, “That recommendation too requires law schools to respond. We need to bring to Indigenous laws the kind of seriousness that we bring to non-Indigenous law, so that Indigenous law students can learn to reason with their traditions with the rigour and soundness that we require all our students to bring to non-Indigenous law. They need to have skills to know how to access their law, understand it, work with it, assess its multiple interpretations, and function within its institutions. And we and they need to develop modes of translation between Indigenous and non-Indigenous institutions, so that non-Indigenous institutions can relate intelligibly to Indigenous modes of governance and structures can be established that mediate sensibly among our various legal traditions.”

How are law schools in Canada taking up this challenge?

Diversity in our idea of Family: What is family law?

Teaching family law has its perils — on every issue there is someone in the class who has faced the questions addressed.  This makes teaching some of the questions even harder, particularly questions related to child welfare and child protection, to directly addressing issues of race, Indigeneity and cultural understandings of the best interests of the child.

But I would argue, it is inappropriate to teach an introductory course in family law without paying due attention to the issues of colonialism, particularly in British Columbia.  The legacy of residential schools and the sixties scoop have had profound impacts on Indigenous families, from non-recognition of diverse family forms, to direct intervention to a failure to acknowledge that parenting is a socially and culturally generated practice that can be destroyed.

I have been teaching family law at UVic Law since 2004 using materials that have been generated and edited over many years between family law professors at UVic and UBC.  Primarily the work of Professor Susan B. Boyd (recently retired).  Editing our materials year to year has given us the ability to include diverse media, links to resources like RCAP, and have themselves been a source of conversation.

The course has been taught with colonialism being one of the central themes, particularly in the family formation part of the course, and introduction to the legacy of residential schools is part of the first set of readings.  We have used excerpts from RCAP and the texts of the apologies in the House of Commons, but will work to edit our materials to be inclusive of the TRC Report and Recommendations.

In this short blog post I just want to mention two resources that I have used.  The first is a video that I show when teaching a class on Indigenous child protection.  It is a VHS cassette (an historical artefact for today’s students) produced by the Carrier Sekani Family Services: A Journey Home: Reclaiming our Children, Carrier Sekani Family Services (CSFS), House of Talent Productions, 2005  www.csfs.org  If your library doesn’t have it you can probably get it ILL from UVic Law.  The video tells the story of a bah’lats (a potluck) held by the Carrier Sekani to welcome back into the clans children who had been apprehended and raised outside their communities.

The other readings for the class are Marlee Kline, “Child Welfare Law, ‘Best Interests of the Child’ Ideology, and First Nations” (1992), 30 Osgoode Hall L.J. 375; and annie bunting,“Complicating Culture in Child Placement Decisions” (2004) 16 Canadian Journal of Women and the Law 137.  This enables an open and challenging conversation around the ideologies embedded in our understanding of terminology like “best interests of the child,” questions of essentialism, questions of protocol, and a more embodied response to the questions mostly due to the visual presentation and the powerful words of the elders (with English subtitles).

I have written about using that resource in class here: Gillian Calder, “‘Finally I Know Where I am Going to be From’: Culture, Context and Time in a Look Back at Racine v. Woods” in Kim Brooks, ed., Justice Bertha Wilson: One Woman’s Difference (Vancouver: UBC Press, 2009) pp. 173-189.

The second resource is a short story by Thomas King, “The Baby in the Airmail Box” in A Short History of Indians in Canada (Toronto: Harper Collins, 2005) 34-49 at 34-42.  The story is about an Indigenous couple who goes to a Child Placement Office in Alberta to adopt a white baby, while simultaneously a white baby has mysteriously shown up in a box delivered to the local Chief and Counsel.  It is wry and laugh-out-loud funny.  But every year I sit on the edge of the desk and for the last 8 minutes of class I read this short story to an almost silent, holding in their breath class.  At the end of the reading, when there is inevitably laughter, I set up the next class.  In that class the students are required to read a series of difficult adoption cases, including Racine v. Woods.  Thomas King is purposefully playing with stereotypes, and it makes some of the students uncomfortable.  But the goal is to go to the readings thinking carefully and critically about what is not said in those cases.  What kinds of stereotypes and assumptions are at play.  And the following class is inevitably more engaged as a result.

I am very happy to share lecture notes, syllabi from family law, or other materials (gcalder@uvic.ca).  And I am happy to know what family law teachers across the country are doing to respond to the TRC.

“The Problem of Prostitution” – Problem-based learning in Constitutional Law: some reflections on colonialism

gillianIn the 2014-2015 academic year I revised the methodology of my first-year Constitutional Law class to centre “problem-based learning.” And the problem that I chose to ground the year, federalism, Indigenous laws, and the Charter, was the “problem of prostitution.”

If anyone is interested in thinking through what a shift to problem-based learning might look like, I have lots of resources from my year that I am super happy to share. Just email me at gcalder@uvic.ca. It is the best thing I have done to challenge my own perceptions and teaching in a long time. Here are a couple of articles about problem-based learning that I found helpful when I started my own rethinking:

  • Julie Macfarlane and John Manwaring, “Using Problem-Based Learning to Teach First Year Contracts” (1998) 16(2) Journal of Professional Legal Education 271-298
  • Shirley Lung, “The Problem Method: No Simple Solution” (2009) 45(4) Williamette Law Review 723-766.

However, what I want to say briefly here in the context of how law schools should respond to the TRC, is that one of the problems I have faced in teaching Constitutional Law is the volume of materials, but also the silos. I have tended to teach the course in three separate chunks, and evaluate those three chunks separately as well. What I found this year using a thick, messy, political, economic, social, ethical and multi-legal problem like “prostitution” was that the integrated questions of jurisdiction, colonialism, and rights remained present throughout all components of the course.

And in particular, the issue of who is affected by the sex-trade and the correlation between colonialism, murdered and missing Indigenous women and girls, and law’s engagement with prostitution, was something we returned to throughout our learning process. And while there are Indigenous issues in federalism and in the Charter, here the engagement and the learning was deep-learning. And, as a result, discussion in class and work, collaborative projects and work on evaluations engaged with questions of colonialism in a way that I have never experienced teaching Constitutional Law before.

The resources that I drew upon in teaching the Indigenous component of the course included:

I also had Guest lectures by  Val Napoleon, John Borrows.  The students also listened to this phenomenal podcast, by UVic law grad (and singer-songwriter) Tara Williamson (please use with acknowledgement to Tara and to UVic Law): https://www.dropbox.com/s/81jgawpfl7h5zx1/Podcast%2014%20intro%20to%20s7.m4a?dl=0

I also tried to challenge the pedagogy used in each class, with an aim to use movement, the visual, art, and the diversity of learning styles of my students, to connect their learning and their emotions.

The questions that students were asked to answer as part of their evaluation included:

 Question one: Amongst other goals, this section of the course has asked you to think about the relationship between Indigenous Laws and the Canadian Constitutional order. To explore this relationship you are asked to choose one source (for example, an article, a book, or a film) that is external to our course materials and to offer a critical review of that source. Your analysis should draw on at least three of the sources our course has addressed with the goal of examining the tensions that exist between Indigenous and non-Indigenous legal orders. Do we truly live in a multi-juridical country? What happens when one set of legal orders can’t hear the other? How does your source contribute to a shifting understanding of law?

An example of an external source might be: Louise Erdrich’s novel The Round House (New York: Harper Collins, 2012); Christy Jordan-Fenton and Margaret Pokiak-Fenton’s children’s book Fatty Legs: A True Story (Toronto: Annick Press, 2010) or the Inuit film, Atanarjuat (The Fast Runner), Zacharias Kunuk, 2001.

Question two: Amongst other goals, this section of the course has offered you the opportunity to critically engage with s. 35 of the Constitution Act, 1982, primarily through the cases that have interpreted that provision. In the SCC’s recent Tsilhqot’in Nation v British Columbia, 2014 SCC 44 decision, the Court held as follows:

[42] There is no suggestion in the jurisprudence or scholarship that Aboriginal title is confined to specific village sites or farms, as the Court of Appeal held. Rather, a culturally sensitive approach suggests that regular use of territories for hunting, fishing, trapping and foraging is “sufficient” use to ground Aboriginal title, provided that such use, on the facts of a particular case, evinces an intention on the part of the Aboriginal group to hold or possess the land in a manner comparable to what would be required to establish title at common law.

With attention to at least three sources that we have studied this term, how is the Court’s concern with a “culturally sensitive approach” reflected in Canadian law? Is the Court moving the jurisprudence in a new direction? What underlies this critical aspect of the judgment? What obstacles or concerns do you foresee with this approach?

 Question three: Amongst other goals, this section of the course has asked you to think about the role that colonialism plays in the “problem of prostitution.” Indeed, an argument of our course is that that the passion and creativity of the Idle No More movement has brought legal issues to light that might have otherwise lain dormant. With attention to at least three sources that we have studied together this term, what does looking at “the problem of prostitution” through the lens of the Idle No More movement bring to the surface? What systemic issues inherent in our study of the sex trade this term are elucidated through a colonialist or postcolonialist lens? How have the stories of Indigenous women been reflected, or not, in our journey through Constitutional law to date?

But significantly, issues of Indigeneity, colonialism, and being a residential-school survivor, were issues that were part of the student’s final evaluation, a factum that was to either challenge or defend Bill C-36. Teaching law in an integrated way, centring problem-solving as the primary skill, can lead to unexpected results.

I have never seen this kind of quality work from students in a first year class before, it was exhilarating and humbling to be part of – and I think there is lots to learn for how we approach the challenge the TRC recommendations set for law schools.