Reconciliation Summer Reading List? “At the Bridge: An Anthropology of Belonging”

[EDITOR NOTE:  I wrote this blog piece for my personal blog rebeccaj63.wordpress.com], but I am re-posting it here as I think it is something that may be of interest to Law folks looking for resources for TRC-engaged teaching and learning.  This book is a goldmine re h TRC#28’s call for education about Indigenous law, Aboriginal-Crown relations, conflict-resolution and intercultural competency.]

20200528_171147_hdrLooking for a good read this summer, during COVID times?  One of my favourite books of the year is Wendy Wickwire’s book,  At the Bridge: James Teit and an Anthropology of Belonging (UBC Press, 2019).

Now, you may be thinking “I don’t know who James Teit is”, or “Anthropology isn’t really my thing.”   I would encourage you to push past those responses, and say that if you give this book a try, you will come away being so happy to have built a relationship with James Teit, and I suspect you may also come away feeling connected in a more intimate way to the places you live (where ever those places are) and feeling more  hopeful about the ways we all may choose, in these difficult times, to become anthropologists of belonging.  In concrete terms, here is what it says on the back cover of the book:

Every once in a while, an important historical figure makes an appearance, makes a difference, and then disappears from the public record.  James Teit (1864-1922) was such a figure.  A prolific ethnographer and tireless Indian rights activist, Teit spent four decades helping British Columbia’s Indigenous people in their challenge of he settler-colonial assault on their lives and territories.  At the Bridge chronicles Teits’s fascinating story:  From this base at Spences Bridge, BC, Teit practised a participant-based anthropology that covered much of BC and northern Washington, Oregon, Idaho, and Montana. Whereas his contemporaries, including famed anthropologist Franz Boas, studied Indigenous peoples as the last survivors of “dying cultures” in need of preservation in metropolitan museums, Teit worked with them as members of living cultures actively asserting jurisdiction over their lives and lands.  At the Bridge lifts this story from obscurity.

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It bugs me knowing Boas published this photo of Teit and Ankto photo without identifying them.

I was excited when this book came out, in part because I had already encountered Teit.  Or at least, I knew his name.  For several years, I had been part of a partnership between ILRU (the Indigenous Law Research Unit at UVic) and the SNTC (The Shuswap Nation Tribal Council) working on a number of the Secwépemc Law projects. In these projects, we were asked to work with a number of Secwépemc storied legal resources, and to draw on a number of those gathered by James Teit at the turn of the last century (You can see a copy of the Lands and Resources Law Research Project here).  All this to say, I knew that his name was on the monograph from which we drew these resources.  But I knew next to nothing about Teit himself.

And now, I love him.   Seriously.  And I love thinking about his Nlaka’pamux wife Antko, and the place of women in this important story.  And I love the book.   You know I love a book if I lay traces of my pens and highlighters so thickly across the paper.  20200528_171439_hdrMy copy of the book pretty much looks like this…..  I couldn’t help myself!  (sorry to you librarian folk out there who try to maintain book purity). But the text simply drew me into engagement, and there were just so many things i wanted to be able to return to. While my kids (nearly adult man-cubs?) have not yet ‘read’ the book (physically run their eyes over the pages), they both have a good sense of what is there:  while I was reading, I was constantly stopping to interrupt them in their other endeavours, so I could read them different sections from the book.

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A treat to see pages from his field notes, always identifying specific storytellers, weavers, hunters…

It is just chock-a-block full histories that need knowing.   And it is written in such an accessible style, whether one is a theorist, a historian, a  teenager, a community member, a health care worker, an environmentalist, a linguist, a knitter, a basket maker.  Beautifully thoughtful and inviting.

I also think it should be mandatory reading for anyone teaching in a law school (OK.  Not that I would “mandate” anything, but I think people would WANT to have access to this one).

The day I finished my first read through of this book, I sent the following note out to my law school colleagues, detailing all the reasons I think this book should be on all our shelves, and should be drawn into our teaching, our research, and our practices of engaging in the socio-political world around us.  I still stand by that analysis.

Hi all:

I have been reading my way through Wendy Wickwire’s new book At the Bridge: An Anthropology of Belonging, and wanted to put the word out that I think this book might be the “must read” book of the year.  I have been thinking about how it is a game changer in a number of areas:

1. People teaching in BC law schools – I feel like the historical pieces of BC finally started settling into place with this book
2.  People teaching constitutional law – wow to the ability of this book to get at both confederation questions and federalism ones
3.  People thinking about reconciliation stuff — the story of James Teit is so absolutely inspiring in terms of seeing indigenous/settler collaborations and working relationships
4.  People working on any of the transsystemmic questions — this book gets at the legal orders in the BC interior
5.  People thinking about the history of Victoria and Vancouver Island — I just think this book should be taught in all the high schools here too.
6.  People looking for models and pathways for how we begin to have more complex engagements of law at the current juncture.
7.  People cautious about the place of anthropology in our legal work — this book makes visible multiple ways of doing anthropology, and provides tools for distinguishing the kinds of approaches that are more and less helpful/valuable (indeed, left me feeling rather inspired about the possibilities of acting otherwise)
Anyways…. I think it would be a great choice for a faculty “book club” read.   This will be an amazing resource for us here in the law school, and I am really keen on having others to talk to about the book (and ways to think about drawing this book into our resources in both first year and upper year courses)

Wendy Wickwire’s At the Bridge is one of those books that has shifted my sense of history, and my sense of what is possible when it comes to walking the path of respectful relations, and taking seriously the hopeful potential in decolonizing actions.  What James Teit did (as a settler to Canada) is possible for all of us to do.  He offers us a pathway.  It is ours to walk.

Ceremony as Remedy? A Heiltsuk resource for doing TRC#28 work in the law school.

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Bella Bella Big House – Photo credit Charity Gladstone/Canadian Press

In the fall of 2019, the news carried the story of an Indigenous man and his granddaughter who were detained and handcuffed in the context of trying to open a bank account at a branch of the Bank of Montreal in Vancouver.  In short, a bank teller had ‘become suspicious’ that fraud was involved, and the RCMP were called. The pair were detained and handcuffed in front of the bank. The RCMP determined within the hour that there was no criminal activity, and the bank later agreed that it had been a mistake to call the police. Here is a link to Angela Sterritt’s report on what happened to the grandfather and granddaughter, both Heiltsuk from the community of Bella Bella.

https://www.cbc.ca/news/canada/british-columbia/indigenous-girl-grandfather-handcuffed-bank-1.5419519

There was significant national and international media swirl around the case.  Angela Sterritt played an important part in keeping the issue prominent, and with a lens that focused on the Indigenous experience of commercial racism.

What is exciting here is seeing what the Heiltsuk actually DID in response to the injury that had been caused to their members — they held a “Washing Ceremony”.  Here is  Rafferty Baker’s report for CBC.  https://www.cbc.ca/news/canada/british-columbia/bmo-heiltsuk-bella-bella-ceremony-1.5483320

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Maxwell Johnson said being in the community’s big house brings him a solace that the incident at BMO disrupted. (Angela Sterritt)

What the Heiltsuk have done in this case is to take action on the basis of Heiltsuk law. I do not know very much about the Heiltsuk washing ceremony, and I suspect that few of us teaching in law schools do, but the Heiltsuk conducted the ceremony in a way that can help non-Heiltsuk begin learning about their obligations and responsibilities under Heiltsuk law, as well as about Heiltsuk ways of addressing harms and injuries.

Angela Sterritt was invited to participate as a witness to the ceremony, and the community agreed that media could be part of this conversation.  Thus, these reports provides a lens for learning about (and teaching about) this work.  Here is her CBC report,”Indigenous Ceremony tries to right wrong caused by handcuffing of grandfather and granddaughter. (https://www.cbc.ca/news/canada/british-columbia/reporter-s-notebook-grandfather-handcuffed-bank-1.5484448

There is also a twitter feed that fleshes out this experience. https://twitter.com/AngelaSterritt/status/1235040345722720257

HOW MIGHT THIS BE DRAWN INTO THE CLASSROOM?

For people thinking about how they might respond to the TRC Calls to Action in their own classrooms, this case provides many powerful lessons, and directions for engagement.  It could also be draw into a number of different classroom contexts.

  • One might think of this case through a criminal law lens. The story offers space for looking at the law around detention, reasonable grounds/reasonable suspicion. It also asks about the place of private citizens (or corporations) in ‘policing’ the spaces of commerce and economy. There is lots here that raises questions about what racial profiling looks like when it is performed by private rather than public actors.
  • One might also think of this case through a tort law lens. Again, what does ‘wrongful arrest’ look like in the tort context? What duty of care do banks owe to customers? And what precisely is the harm? What kind of damages would repair the injury done? And who precisely is responsible for the injury: the bank teller? the police officers? the bank manager? the board of directors?
  • The question of WHO is responsible for the harm also raises the kinds of questions that come up in the context of not only corporate crime, but also corporate torts. That is, there are questions raised here about institutional actors (corporations). What theories of liability and responsibility are most appropriate when intention and action are differentially distributed through a corporate structure.  There is much in this case that can provide background for addressing Call to Action #92.
  • And of course, WHOSE LAW applies to injuries such as these? This is a particularly live question in BC where questions about unceded territory, and the limits of state sovereignty continue to take centre ground.  [NOTE: a super helpful resource on Sovereignty in BC is Claxton, Nicholas XEMTOLTW, and John Price. “Whose Land Is It? Rethinking Sovereignty in British Columbia.” BC Studies 204 (2019-2020): 125-48.  I would HIGHLY recommend putting this on your summer reading list or in your curriculum for the students].

 

In both the Sterritt and Rafferty accounts of the ceremony, there are some spaces for opening the conversation. Things to note:

  • The harm to Maxwell Johnson and his granddaughter is identified as having both individual and collective elements: There was an injury not only to the two of them, but to the community as a whole.
  • The community as a whole stepped in to focus on repairing the harm to the grandfather and granddaughter. The ceremony enabled a public acknowledgement and witnessing of the harm, and an opportunity for him to speak about that harm to those representing the bank.
  • 15 representatives from the bank were present. Their job was to hear the expression of hurt and anger.  They were not (like other witnesses) given a space to speak. There is something interesting and important here in thinking about the role of taking public responsibility (at least of thinking about the different ways that acknowledgement might work). Also something important about the place of listening without responding.
  • Witnesses were called, so there is a public memory of the event, and of the removal of shame from the grandfather and granddaughter.  Witnesses play an important role in keeping the memory of the ceremony alive. The focus here, even if involving representatives of the Bank of Montreal, is on the Heiltsuk taking action to relieve the harm caused by others (my point is that the job of repairing and restoring is carried not only by the ‘person who did the harm’, but also of the full community in which the member is embedded).  The work of healing from the injury is not confined to the person who did the injury.
  • The ceremony seemed designed not with the primary goal of ‘punishing’ the bank, but with the goal of healing and repair.   It presumes that a piece of this means attending to the work of ongoing relationships (ie. many people will still have their money in the bank…so what is needed to repair trust?).  This ceremony does not wash the stain off the bank members (as far as I can tell).  It is focused on repair.  But at the same time, it makes a space for the bank to participate in doing their own acts of restoration, rehabilitation, acknowledgement and repair.   Part of the remedy seems to involve drawing them closer into relationship rather than just pushing them away. The representatives of the Bank were gifted, blanketed, and given a role in the ceremony. The remedy, in effect, is one which helps those responsible for the injury to learn more about both the Heiltsuk, about the impact of the injury, and about what it might mean to repair an injury in ways that go beyond apology or monetary compensation (particularly if one asks also about the harm to the community)
  • Note that, in attending the ceremony, the Bank of Montreal was in a sense acceding to Heiltsuk law.   Maybe ‘acceding’ is too strong a word, but at the very least, they came to the Ceremony without being ‘required to’ by a court action, or contract.  Rather, they took their lead from the Heiltsuk, and agreed to come and occupy a role in ceremony designed to heal the injury done.  One might imagine conflicts over what reconciliation is or isn’t, but one can see in this decision an action that affirms the legitimacy of a Heiltsuk response.
  • the Washing Ceremony was conducted in the Big House. The Bella Bella Big house was newly reconstructed (after 120 years). The Big House is the venue for important public ceremonial and spiritual business. https://www.cbc.ca/news/canada/british-columbia/heiltsuk-big-house-ceremony-   It is significant and moving to see the new space (“a living space”) being put into action right away.
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Representatives from the Bank of Montreal take part in a washing ceremony in Bella Bella. They were invited there by the Heiltsuk Nation in an effort to repair the damage done when two members of the Heiltsuk community were arrested at a Vancouver BMO branch in December. (Shawn Foss/CBC)

This is an important case to think with and through.  It is one for conversation in the law schools, both between us as colleagues and with our students.   There are undoubtedly a number of other resources that could help us begin to think about this case as a helpful resources for responding to the TRC calls in our classrooms.  If this is a case you have been thinking about too, please feel free to add more links into the comments.   This is a story worth learning from!

 

Wild Mushrooms or Wild Land: Do you have permission to pick wild food on “Crown” land?

How a mundane practice like mushroom picking can disregard or disrespect First Nations rights and title. And how education can help.

Earlier this summer, I stumbled onto a patch of resistance to reconciliation. My fellow settler neighbours did not agree that the “Crown” land behind their homes was the traditional, unceded territory of the Secwepemc Nation. My neighbours assumed that all non-reserve land had to belong to the government and therefore, what was on it, was theirs for the taking. This was despite a solid public school education on the history of how Canada was settled.

One of my takeaways from this interaction is that the education of First Nation issues needs to include discussions about how individual actions can respect First Nations rights and title. My neighbours knew the history of how Canada was settled and yet they assumed that all Crown land was Canada’s. This was despite recent new stories that the Supreme Court of Canada upheld a Specific Claims Tribunal decision that found that the Crown broke a treaty with the Secwepemc Nation and wrongfully took land from them (Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4; see https://www.cbc.ca/news/politics/supreme-court-williams-lake-1.4516522). My neighbours and I live in a town that is literally on stolen land, and that big forests around us may be Crown land on paper but in actual fact it is the unceded traditional territory of the Secwepemc.

Not all places in Canada have the convenience of knowing whose land you live on and a Supreme Court case confirming that the land was wrongfully stolen. This information is accessible to everyone in my town and it made a splash in the news when the decision first came out. This information, coupled with the education that I assumed all my neighbours received about the historical injustice of colonialism, resulted in what I assumed was a common understanding that the land around them was belonging to the Secwepemc First Nation.

It was against this backdrop that we rolled into the early summer months, the first summer after the wildfires of 2017. For several months ahead of this summer, my husband Chief Russ Myers of the Yunesit’in band in Tsilhqot’in First Nation, had been working with his nation around setting up a permitting system for picking wild mushrooms in the Tsilhqot’in traditional territory (http://www.tsilhqotin.ca/Portals/0/PDFs/Press%20Releases/2018_05_18_MurshroomPermitPR.pdf).

The Tsilhqot’in knew that there would be many mushroom pickers coming into the area and that the Province of British Columbia would not regulate them. It was up to them to create a system to ensure that the mushrooms were picked in ecologically sustainable areas.

This system had already been announced when my neighbours made their own announcement on Facebook; these women had recently returned from the traditional territory of Secwepemc Nation and had picked basketfuls of wild mushrooms. They were happy to get some healthy, organic, (free) non-GMO food.

Their glee at picking wild foods was shocking to me. I sent them messages, asking if they secured permissions from the Secwepemc Nation. My fellow settler neighbours were either silently cold or hotly angered at these questions. One woman responded to my suggestion by posting her outrage on Facebook. My other neighbours chimed in. The 93 comment thread lay clear that many people believe that it was their right to pick wild mushrooms on “Crown” land.

When I saw this, I was reminded of a few paragraphs that the Chief Justice McLachlin wrote in the Supreme Court decision, Tsilhqot’in Nation v. British Columbia, [2014] 2 SCR 257. I had been reading this decision earlier in the year, and paragraphs 114-115 always struck me as infuriating. In these paragraphs, Chief Justice McLachlin, speaking for the Court, assumes that all non-reserve and non-treaty land must belong to the Crown because to assume otherwise would leave “no one in charge of the forests that cover hundreds of thousands of hectares and represent a resource of enormous value.” This assumption overlooks the number of treaties that were made and broken by the Crown, such as in the Williams Lake case. It also overlooks the evidence that we have that many First Nations in Canada were “managing” the forests and lands without Crown approval or knowledge. These Nations did this because they had been doing it for hundreds of years prior to colonial settlement.

It’s a funny thing to see the Chief Justice and a disgruntled white lady on Facebook arrive at the same blind spot. Two people, with radically different knowledges of the law, First Nations and history, both arrive at the same, unsupportive, assumption: if I don’t know this is Native land, then it must be Crown land.

Most of the land that we have today emerged from the historic wrongs that we all learn about in school. In schools, students look at these wrongs and perhaps will look at the current legal and political systems designed to address these wrongs. I think that this leaves students with an idea of what governments or industry need to do, but it doesn’t give the students a sense of what they need to do as individuals to respect the First Nations whose land they live on. How to live ethically if the land that you live on is stolen?

To ask permissions from the First Nation to harvest wild food is a practice that is small but potentially impactful. How one asks for permission to harvest wild foods is a delicate act; it requires taking the time to learn whose land it belongs to, to reach out and contact that First Nation, to listen and really try to hear the response, which might be in a language which is not yours. This process may not be easy, and there probably is not a universal approach. But by even trying to do this, settlers are showing government and industry and all our neighbours whose land and laws we are choosing to follow. An education that connects historic wrongs with how individual actions can help reconcile the past is one way that we can get other settlers to begin this kind of practice.

After I had sent my neighbour the questions, the Secwepemc Nation came out with a map of the areas where mushroom picking was allowed. Other Secwepemc bands have also put up signage instructing mushroom pickers and buyers that they were in the unceded territory of the Secwepemc people. In a move that shows how deeply people recent “Crown” land from belonging to Fist Nations, one of these signs outside of Lac Du Boise Grasslands Park near Kamloops was vandalized with a violent and crude message (https://www.kamloopsmatters.com/local-news/education-is-the-only-answer-to-ignorance-band-chief-responds-to-racist-comments-found-on-vandalized-sign-near-kamloops-973042).

How settlers pick wild mushrooms and other wild food can be a case study on how individuals can take small steps to recognize and reinforce (or deny and erase) First Nations right and title. Teaching the “Big History” or “Big Law” of First Nations rights and title is important, but may not be enough. In these lessons, there is an opportunity to also interrogate what mundane, everyday practices that settlers may be doing that disregards First Nations rights and title. It is in these small acts, as simple as picking a blueberry, or talking to your neighbour, that can help us all carry the responsibilities of reconciliation.

 

Top photo: Wild mushroom, known as a morel, growing on Fox Mountain, on Secwepemc territory, in Williams Lake, Spring 2018. Photo credit: Frances McCoubrey.
Many thanks to Rebecca Johnson and Gillian Calder for their helpful and patient edits and suggestions. 

The Blanket Exercise – Part 1

Introduction

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A basket of blankets ready to go

In the Fall of 2017, the UVic Law Faculty decided to involve the full first year law school class in a form of the KAIROS Blanket Exercise as part of our mandatory Legal Process Course. We had been reflecting on the possibility of doing something like a Blanket Exercise for a number of years.  The Truth and Reconciliation Commission’s Calls to Action(particularly #28, directed to Canada’s Law Schools) inspired us to start incorporating new ways of learning into our program.

In the interests of generating a conversation about embodied pedagogy and TRC work, I want to share here five different experiences that I have had with the blanket exercise (including the approach our law school took last year). Each encounter helped me recognize both the necessity and the challenges of doing trauma-informed, embodied pedagogy in the law school.

Just by way of provisional definition, by ‘embodied pedagogy’, I mean teaching in a way that acknowledges bodies, makes them visible, and moves them to the center of the learning experience. It is a way of teaching in which bodies are recognized as key to relationships, to understanding our histories of being, experiencing, and living in the world.

As you read about my description of each of the experiences I invite you to think about three different questions:

  1. What is the goal of the exercise? To share information? To gather information? To created a common foundation for further conversations?
  2. What advantages can embodied pedagogy bring to TRC work in the law school?
  3. Is it possible to create a safe space in which the experience can unfold, one that is trauma-informed?

By the end of this piece I hope to have articulated some of the reasons why the UVic Law School decided to involve all our students in the blanket exercises as a starting point for a common understanding of our history of Indigenous-Colonizer/Settler relationships. I hope also to have shared some insights that emerged from reflecting on multiple engagements with the exercise.

Encounter #1 – Nervous Reluctance at the Very Idea

My first encounter could perhaps be described as an encounter with an idea. That is, my first encounter was not through participation, but through description of the exercise: my colleague Maxine Matilpi had participated in a version of the KAIROS exercise, and suggested that we do it with our students at UVic. As I understood it from her description, a floor would be covered with blankets representing North America before contact. Over the course of an hour or so, people would be taken through Canadian history in a way that performed small-pox, genocide, residential school, the foster care system, dispossession and more. At the end of the exercise there would be a visual map capturing the ways in which colonial practices have resulted in fragmented communities. The exercise would be followed by a debriefing session in which participants could discuss their experience of the exercise. Maxine reported that participants had found the exercise to be a powerful way of understanding this swath of history in a more embodied fashion.

While the exercise sounded interesting, it also made me very nervous. It seemed like the exercise would raise a lot of hard questions in a context where I was not confident we in the law school (I?) would have the capacity to address them. I was worried that law students might be resistant, that it might generate backlash, and that it might produce more harm than good. But I kept my ears open. And other friends, including Hadley Friedland, stepped forward to make the suggestion again. But at each mention of the exercise, while I found myself saying that it sounded ‘conceptually interesting’, my primary affective response was one of nervous reluctance (and refusal).

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Doing the blanket exercise in Edmonton

It was several years later that Hadley Friedland did what both Maxine and she had suggested that UVic should do. That is, she used a form of blanket exercise at University of Alberta with a group of over 200 law students and faculty.  She adapted the Kairos script to be more attentive to the law school context.  She involved people from local Indigenous communities and from the Indigenous Bar Association to facilitate discussion groups after the exercises.  She didn’t let ‘logistics’ stop her: since there wasn’t a room large enough in their law school to physically pull this off, the exercise was run in the gymnasium at U of A.  The event successfully met its objectives. Click below for accounts of the U of A experience in 2016 and 2017:

With my nervousness about the exercise tempered by evidence of its success at the University of Alberta law school, I moved in the direction of a small scale experiement – trying it myself.

Encounter #2 –  The McGill Welcoming Week Version

The first time I myself participated in the Blanket Exercise was in Montreal during a Welcome Week at McGill. I was in town visiting my sister, and it just so happened that a group of McGill students (NOT associated with the law school), were running the exercise, in a week where there were multiple competing events.  I was, in some ways, “a stranger in a strange land”, and there was some comfort in the idea of trying the exercise out in a context where I did not know anyone, and nobody really knew me.  It was clear that time was of the essence and things were being brought together at the last minute. This is shorthand for saying, it was a very bare-bones exercise. The presentation didn’t feel glossy or polished. The people who were playing the roles of the facilitators and the settlers were volunteers. They were real people doing an exercise. There were no expectations that people had memorized or rehearsed lines, or that they were working to a professional standard. And so we were called in as participants in just the same way: there was no expectation that we had to do anything other than follow instructions.

Certainly, there was something quite powerful in having the exercise flow out in what felt like a very ordinary way.   I felt a certain democratizing impulse in it in the way that the script was there and it didn’t require someone with an exceptional speaking voice to have power.

I was also struck by the relationship between what I knew in my head, and what that knowledge felt like when it took an embodied form. During the exercise, I was given a scroll which was to be read aloud at the relevant time.   The text referenced the death of Indigenous women. There was nothing in the text that was new to me – by that I mean that the data was something that I was accustomed to teaching in my criminal law class.   Yet, having to read the words out loud in this context was very hard. It was all I could do to try to read the words without crying.   I was reminded that reading the words in my head is not the same as saying the words in ways which required my lungs to take breath, my vocal chords to do the work of speaking the sentence in time. It takes much longer to say the words out loud, than it does for my eyes to take in the meaning. Having to say it out loud is not the same as knowing it. Or as hearing it. I was reminded that the speaking of words makes them real, ‘in the body.’

I was also reminded that I have a great deal of personal discomfort with role-playing exercises. I am perfectly happy watching others do them, but I don’t have a strong desire to be a participant. Indeed, knowing that I might have to participate in something will often send me quite a few rows back in a classroom. I am much more comfortable in my head than in my body. I prefer talking about things to doing things. I am always aware of discomfort in my body when I am asked to perform in many of these contexts. I experienced some of this in doing the exercise, but in ways that involve productive discomfort.

As one example, the exercise opened with the instruction that we walk around on the blankets saying hello, greeting each other.   That activity, itself, often takes me out of my comfort zone. I don’t enjoy parts of classes where we are supposed to walk around and introduce ourselves. For one thing, I am often uncomfortable shaking people’s hands: with how hard to shake, how soft to shake, are their hands arthritic, do I need to be careful how hard I squeeze, are my hand clammy or sweaty, will they want to shake my hand, will it be gross for them to shake my hand, is my hand too rough, how long should I smile, should I get eye-contact. These kinds of questions are running through my head in those exercises, thinking about my own comfort and also about the community of others of my loved ones who really hate these kinds of exercises.

There is something staged and false about that intro that I can feel in my body in a particular way, so I don’t really enjoy it. As someone who does not come from and has not embodied the Catholic tradition, I have also felt that way at the end of the Catholic mass where people turn to each other and say, peace be with you. Every time I am in one of those moments, I find myself thinking of my mother-in-law, who told me that she found that the most powerful part of the whole mass. For her, those moments of connection were powerful.

And so while I find them uncomfortable, I appreciate that they may be operating differently for others. The point is just that the exercise pushed me immediately into a space in which my body’s own discomfort was mobilized. In taking that first step and literally stepping onto the blankets, I was trying not to let my nervous giggle surface, walking around, shaking hands with people I did not know, wondering if I was operating appropriately or not. For me, this discomfort was productive – my participation was largely an information-gathering exercise to inform whether I could bring back and use this exercise in the places where I worked and lived. So that was good for me to know and helped temper the discomfort.

I found myself wondering if the exercise would have been different with trained actors reading the main roles.   I also wondered if that would lead me to feel more engaged, or to experience greater distance. It certainly let me think about the real pragmatic questions about how much of the work is in the script of the exercise itself and how much is in the power-of-performance dimensions of the script. There was a debrief following the exercise. I did find that the conversation after the exercise was as at least as interesting as the exercise itself.

I came away from this first exercise with some valuable insights and with a curiosity and desire to participate a second time.

Click to continue to Blanket Exercise – Part 2

Indigenous Law and Procedure in Action: Vancouver Island Esquimalt/Ditidaht Hunting Case

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Roosevelt Elk

The TRC Calls to Action speak to the importance (for law students, lawyers, doctors, nurses, journalists, bureaucrats, citizens) of learning about:

  • Treaties
  • Aboriginal rights
  • Indigenous law
  • Aboriginal-Crown Relations

If you are looking for examples of the application of Indigenous Law and procedure in a contemporary context, then here is a great case for you, “In the matter of R v. Joseph Thomas and R v. Christopher Brown and Esquimalt and Ditidaht Nations

The case started in BC Provincial Court, involving two men who were charged with hunting/poaching in violation of the BC Wildlife Act.  I first heard about the case in a newspaper report, and was completely taken with it!

This case has been positively hope-inducing in me (a less than common feeling for one who spends much of her time teaching Canadian Criminal Law).  Below is a copy of the ILRU Case Note, followed by a few thoughts on ways this case might be used in a variety of law school contexts/courses.

ILRU Case Note: In the matter of R v. Joseph Thomas and R v. Christopher Brown and Esquimalt and Ditidaht Nations

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Map of BC First Nations

Context: Two Coast Salish men from the urban Esquimalt nation (in Victoria) were charged by conservation officers with two counts of poaching under the BC Wildlife Act. The two men initially asserted what they believed was a treaty right to hunt on unoccupied Crown land. However, the Ditidaht [1] (in whose historic territory the Esquimalt men had been hunting), were concerned about over-hunting of Roosevelt Elk.  They were in favour of conservation, and the conviction of poachers.

As things unfolded, it also became clear that the two Esquimalt hunters had not sought permission from the Ditidaht to hunt in their territory, nor had they complied with Indigenous conventions in the manner of their hunt, breaching both Ditidaht and Esquimalt legal principles, and bringing shame on the communities.

Application: The case was heard in First Nations Court by Justice Marion Buller (now Chief Commissioner for the MMIWG Inquiry). With the consent of the Crown, the accused and the two concerned Nations, the Court made space for the Esquimalt and Ditidaht communities to work together, using their respective laws and procedures, to resolve the case.

The intial hearing, drawing on Coast Salish procedures for dispute resolution, involved a larger number of interested parties, including Elders, Chiefs, Counsellors and other members of the Esquimalt, Cowichan and Ditidaht nations. The communities spoke to not only current treaty and provincial law, but also to older laws between the two nations respecting hunting. They agreed that seeking permission from the other community was a fundamental law that continued to have force. The hunters accepted responsibility for their conduct, and agreed to accept the resolution that would be determined by the nations.

A number of procedural steps were necessary, as the violation of law here imposed responsibilities on not only the two hunters, but the Esquimalt community as a whole. As a result, the hunters were required to visit each household in Esquimalt to tell them what they had done, and to invite them to a meeting, which would be held in the Esquimalt Long House and involving people from both nations. At this meeting (180 people in attendance), representatives of the Ditidaht were wrapped in blankets and presented with gifts as a way of acknowledging the harm that was done, and committing to the re-establishment of good relations. The hunters are to refrain from hunting for a year, and are required to do work for the community, doing maintenance and service at the longhouse at least twice a week for the year. This was to function not as punishment, but as an opportunity to be a model for youth, and to demonstrate the continuing obligations and operation of Coast Salish and Ditidaht law.

Significance: This case is a powerful and hopeful example of the application of Indigenous law in ways that provide a meaningful resolution to a very real problem. A second important dimension of this case is that it is an example of intersocietal law. That is, this is not only a conflict over hunting, but a conflict between communities from two distinct legal orders. It shows the power of Indigenous law and procedure to create the conditions for people from different legal traditions to come together to work through a shared problem in ways which link in appropriate decision-makers, who are positioned to better identify the challenges, and construct meaningful solutions. Note that the procedures also supported an increase in legal literacy (increased familiarity in each community with the legal terrain of the other), and the building of community connections.

Even more powerfully, in the process of resolving this specific hunting/poaching claim, the two communities were able to identify a bigger systemic challenge:  given the pattern of land development in this territory, the Esquimalt do not have access to many areas in which to exercise hunting rights. There is thus a pressure to hunt in the other territory with potential to impact on wildlife.

The result of the case has thus also been that the two First Nations have begun discussions aimed at developing protocols to govern hunting in Ditidaht territory by Esquimalt members, to support the ability of people in urban settings to have access to hunting.

In short, what could have otherwise been a conventional hunting sentencing case instead has produced an outcome which:

  1. Attends to questions of human safety (drawing on indigenous laws and protocols governing ways, times, and places in which hunting can happen),
  2. Attends to questions of conservation (drawing on Indigenous laws related to stewardship of land and animals),
  3. Attends to questions of inter-community conflict, drawing on the point of contact as an occasion to work together to collectively address a shared problem.

[1] The Ditidaht and the Pacheenaht people speak closely-related dialects of a language called Nitinaht or “Ditidaht.” Ditidaht, is one of three closely-related languages (Nitinaht, Makah, and Westcoast or Nuu-chah-nulh) forming the South Wakashan sub-group of the Wakashan Language Family. The Nitinaht and Makah languages are much more closely related to each other than they are to Nuu-chah-nulh. From http://www.ditidaht.ca/.

ADDITIONAL RESOURCES:

  • one could supplement this case through reference to two ILRU reports:  Coast Salish Legal Traditions Report; ILRU, Coast Salish Civil Procedure Report
  • There are some helpful video talks available on line on Coast Salish Legal Traditions & the Canadian State by Professor Sarah Morales.

THOUGHTS ON USING THIS CASE IN THE LAW SCHOOL CONTEXT

  • This case is great for teaching “Sentencing”.   It was really wonderful to be able to give students some examples of sentencing cases that did not induce despair.  It was also useful for helping them see that some cases may involve MORE work for offenders, rather than less.  Certainly, the students would agree that it would not be ‘easy’ to have to go door to door in the community to let people know about a wrong you had done.  The case also made visible the ways that many people in a community could be brought together in order to produce a meaningfully better outcome.
  • This case is great for troubling the divide between Criminal/Provincial offences, particularly in the context of Indigenous Laws.  To call a hunting case ‘provincial’ is in many ways to fundamentally misconstrue the depth of relationships between indigenous peoples and animals.  In many contexts, it is perhaps most appropriate to understand the relations between many Indigenous peoples and animals through the language of treaty (this is visible in Westcoast Nation stories about the Salmon People, or in Plains stories like The Buffalo Child).  This is visible in this hunting case, where Esquimalt and Ditidaht parties agreed that, in the past, a second violation of laws around hunting could have resulted in the punishment of death.  This indicates the importance of Indigenous laws pertaining to human/animal relations.  Michael Ashe’s 1989 article on asche-wildlife-cpp-1989 might be a useful resource for supplementing such a discussion.
  • This case is great for exploring Conflict Resolution in the context of International Law.   On the one hand, this case could be treated as simply as instance of alternative measures within Criminal Law.  However, there are powerful reasons to see this as rather an example of conflict at the intersection of THREE legal orders (BC/Canadian; Esquimalt; Ditidaht).  What we see in some ways is the visionary willingness of the BC Court System to step to the side, to make space for the other two first nations to draw on their own legal procedures and institutions to solve a challenge that touched deeply on legal obligations and responsibilities in those nations.  The eventual solution is one that accords with the needs of all three legal orders.  From my perspective as a reader, it seemed that the Esquimalt and Ditidaht legal orders contained powerful problem solving resources, ones that provided a very successful resolution, one that is hard to imagine within the more conventional boundaries of the BC Wildlife Act. The case provides a great model for dispute resolution between conflicting legal orders.

 

 

 

Our Voices, Our Stories

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“I want to get rid of the Indian problem… Our objective is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic and there is no Indian question, and no Indian Department…”

Deputy Superintendent of the Department of Indian Affairs (1913-1932), Duncan Campbell Scott

My grandmother, Jean Jones/Borrows, ran away from home so she would not have to attend residential school in Ontario. Her siblings did not run away, and were taken to residential school. My grandma still expresses guilt that she could not help her siblings. She says, “sometimes there are things in life you can’t get over, but I believe you can get through them”.

From 1929-1975, an estimated 9,200 Indigenous children attended St. Michael’s Residential School in Alert Bay, BC.

One week ago I watched a film by renowned director Barbara Cranmer (‘Namgis First Nation) entitled, Our Voice, Our Stories. It told Truth. It showed Reconciliation. It illustrated Indigenous law in action—ceremony, mending harms, decision-makers coming together in deliberation, and the ongoing obligations to share stories.

The film was a story of people tending to a wound that they might not get over, but that they are getting through. The film showed residential school survivors coming together along with their descendants and allies from across British Columbia to watch the demolition of St. Michael’s Residential School. It was inspiring to see people together again to continue their healing.

One does not usually think of a demolition as a ceremony. For those who attended St. Michael’s Residential School, the school’s destruction was a form of emotional, intellectual, cultural and spiritual reconstruction. People wore button blankets, cedar woven hats, smudged with medicinal plants, sang, cried, embraced, told stories, and came together. The crumbling of the red brick school building lined with narrow rectangular windows stood in stark contrast to the strength of the people who participated in the ceremony. The sparkling blue ocean, surrounding forests and distant mountains also witnessed the ceremony.

What stood out to me the most out of the dialogue in the film was a young girl who said she saw a little boy’s spirit leave the residential school during the demolition. She said he looked happy to be leaving. To hear that acknowledgement of freedom coming from such a young voice gave me shivers and hope.

During the question and answer session filmmaker Cranmer said there are no plans yet as to what will replace the demolished school in that now empty space. While law schools will likely not physically build anything in that empty physical place, the spaces in people’s minds can be filled with knowledge and discussion about how to heal and learn moving forward. Barbara has not yet made any specific plans about teaching curriculum to share the film but she is very open to being contacted to allow people access to the film and to use it as a teaching resource. Her band office can be contacted. It is an informative and affective resource for bringing Our Voice to Our Stories.

The trailer can be watched at: https://vimeo.com/141833166