Law & Culture: Drawing Texts, Masks and Blankets into the Law School Classroom

One of the big questions for me over the past years (thinking about our Law School TRC obligations to learn and teach about Indigenous Law) has been the relationship between law and culture. Or maybe more specifically, how to talk about these relationships in the law school classroom.

In this post, I share some materials I tried out last year, materials that I think could be drawn on in a number of different classroom contexts. I pause for a moment to thank my colleague Professor Bob Howell, who (following a number of fun hallway conversations) invited me to explore some questions with the students in his Cultural Property class. Below are some notes on the three things we drew into the classroom:

  1. Law vs. Culture (in Legislative Texts)
  2. Legal Orders in Conflict: A BC case involving the sale of Hupacaseth Masks
  3. Legal Orders in Collaboration: Some comments on the Stewardship Agreement related to the Witness Blanket.

1. Law vs. Culture (Legislative Texts)

We began with questions about ‘law’ and ‘culture’ as important key words. Because the students in Bob’s class were working closely with both UNDRIP and UNDRIPA (new legislation affirming UNDRIP, and setting out a framework for its implementation in Canada)), I looked at those two texts more closely than I would otherwise have done, and got stuck on drawing comparisons between the two sections below. The column on the left (from UNDRIPA) makes an assertion about UNDRIP (the column on the right), appearing to simply draw it into the newer text. But the two sections are not quite identicial, and the differences can open space for a discussion about the key concept of ‘the legal’ and ‘the cultural.’

First, the text highlighted in green directs our attention to the VERB: in 2007, the verb points us at RECOGNITION of inherent rights. in 2021, the verb gives us an emphasis on the importance of this recognition.

The black portion of the text is identical in each version: the need to respect the rights of Indigenous peoples, including rights to lands territories and resources.

The purple text, which is the same in each, tells us where those inherent indigenous rights come FROM: “political, economic, and social structures”. In short, “structures” of the kind that are often seen as distinct from law (here, you can imagine the plethora of courses titled “Law and Economy”, or “Law and Society” or “Law and Politics”. ) At this point, one could generate class conversation about the ways in which law is or is not assumed to be distinct from these ‘meta’ structures.

The text continues, with the section highlighted in blue; this adds adds additional sources from which the rights of indigenous peoples might derive. Here, we move to culture, spirituality, history and philosophy. There is again room for discussion about the ways these forces (or accretions?) are important places for conversation and engagement.

What is particularly interesting to me is the text in red, present in the 2021 version and absent in 2007: “and legal systems”. Here, there is room for significant discussion in the classroom about the ways that this absence/addition makes visible the ways in which the law/culture divide can be deployed. What seems to be at stake here is how we understand these two important key words, as well as the assumption (2007) that Indigenous peoples have culture and NOT law.

From the perspective of legislative drafting, it is also interesting to think about the ways that the words “and legal systems” are added into the 2021 version ‘as if’ they had been present in the 2007.

The comparison of these two sections in the classroom needn’t lead to any conclusions (ie. which is the right or wrong way to approach the questions). The goal might simply be to help visibilize the different ways law and culture are discussed in these texts, and to remind the class that the relationships of law and culture might take different form in different legal orders.

2. Legal Orders in Conflict: The Case of the Cedar Masks

The second thing we talked about in class was a 2013 case in which a pair of Hupacasath cedar masks were (wrongfully) sold in an on-line auction. The nugget of the story is this: one person in a family (“X”) sold these masks to an online auction house. The auction house relied on the existence of the grandmother’s Will to determine that X had good title. That is, they presumed that the masks fell into the category of ‘household possessions’ that had been left to X under their grandmother’s will. The extended family disputed X’s claim, asserting that X was only a steward for the masks that were collectively owned. The auction house continued to rely on the will, and finalized the sale of the masks to an anonymous buyer. Unable to retrieve the original masks, the family held a public ceremony in which X was stripped of their name and title. A new mask was carved, and at the ceremony, the songs and dances that travelled with the older masks were attached to the new mask.

In the classroom time, I talked to the class about having used this case in the criminal law classroom, to ask how you would address the question of the mask having been wrongfully sold according to both Canadian Law and Hupacaseth Law. First off, even within Canadian law, how would the problem to be dealt with if it was understood as a Criminal Law problem (theft, fraud, possession of stolen goods). How would it be dealt with if it were understood as a problem of Property Law or of Wills & Estates? Further, is a mask (which has songs and dances that go with it) to be best understood as “property”, or also to be understood as related to practices of “governance”? You can also take up the question of Conflicts of Law? Whose legal order is to apply when people from multiple legal orders are engaging with the same object?

There are a cluster of newspaper articles you can look at to get a sense of the story, as well as a sense of how it has been talked about in the media:

In her work on Indigenous Property Law, Val Napoleon has posed a number of really helpful questions we can start asking (particularly when it comes to working with societal and cultural production):

  1. What kind of property is this?
  2. Who is the owner?   
  3. What is the underlying purpose of the property?  
  4. What is the legal harm or injury? 
  5. What are the range of historic and present day remedies?

These are great questions to give to the students as they engage with the case. It really helps make visible the power of focusing on QUESTIONS that students might start asking (rather than focusing only on answers to questions). It can provide a richer scaffold for discussion about the strategies for working forward. In the classroom context, we likely spent 20 or so minutes in a rich discussion of the challenges (and of the ways that the problems in this case could help the students think about the international law dimensions of challenges in our own backyard). NOTE: I am currently trying to write the story of these masks in a chapter for an upcoming book on Indigenous Intellectual Property. If you want to see a draft of that article, click here.

3. Legal Orders Working Together: The Witness Blanket Stewardship Agreement

The third thing we looked at in class was “The Witness Blanket, a monumental piece of work by Cary Newman. The Witness Blanket, which is comprised of more than 900 objects and stories, was produced in response to the Indian Residential Schools Settlement, and is currently lodged at the Canadian Museum for Human Rights in Winnipeg. There is a really great website, on which you can see images of, and take a tour of the The Witness Blanket. Also, here is a link to another post on this blog that provides a number of teaching resources for drawing the Witness Blanket into the law school curricula.

One of the advantages of talking about the Witness Blanket next was to make space for looking at more transformative and collaborative responses to the kinds of difficulties made visible in the masks case. This gave us a chance to focus not only on the punitively focused judgement of the past (ie. what went wrong, who was guilty, etc), but also on more positive forward loooking mechanisms to provide joint responses even in the face of different legal orders and different understandings of things.

One of the particularly astonishing things about the Stewardship Agreement is that, rather than having a “choice of law” clause, it makes explicit that it is to be governed by TWO legal orders!

This clause generated some interesting conversation, as we discussed the possibilities that emerge where the focus of the agreement is not on the rights of those signing, but on the responsibilities of those signing to the substance of the agreement, in this case, their joint agreement to care for something (the Blanket itself is the only entity with ‘rights’ under the agreement, the other clauses deal with obligations and responsibilities).

In class, we spent our time primarily with the written text of the Agreement. Depending on the time you have available in class, Here is a screen shot of (my annotated copy of) the first page of the agreement, which asserts that participation in ceremony (culture? law?) is necessary to the full realization of the agreement. That is, the divide between law and culture is made porous (or rather, the law IN culture is made visible).

The agreement makes BOTH 1. written agreements (the stuff of our contracts classes) and 2. cultural ceremony (generally not taken up in law school classrooms) central to the business of doing legal work together. It does NOT presume that written agreements belong only to settler citizens, and ceremony only to Indigenous citizens, but provides a scaffold through which people from different legal orders can draw the tools of their law into engagement with eachother.

We spent a bit of time talking about the oral/ceremonial part of the agreement. Having been present at the ceremony, I could tell them that the experience was affectively powerful. But, to make visible to them that ceremony can be powerfully experienced for people outside of our law community, I have also pointed people to a blog post by my mother, Arta, who also came along to the ceremony: in that post, they can get an ‘outsider’ report on the experience, as well as see someone outside of the law school doing the work of witnessing, and sharing with others both what they saw, and their experience of ceremony.

In our conversation about the oral ceremony, we also discussed the requirement of the written agreement that there be a renewal of the oral ceremony and feast every 4-5 years. This pattern of repetition can be a particularly helpful model in the context of agreements involving “INSTITUTIONS”. If one keeps in mind that the Directors of CMHR (or most other organization or governmental body) can completely change every 4-5 years, you can see that there is a problem of MEMORY. If all your directors change or move on to new jobs, then you are left with a group of folks who do not carry affect laden memories from the power of ceremony. By organizing for a regular return to ceremony, you can create the conditions for keeping the agreement alive with Institutions and Institutuional Actors in ways that are not possible where you rely completely on the (important by not affect laden) written text.

In the context of the classroom, this also opened space for a conversation about student engagement with a variety of ceremonial contexts (both Indigenous and non-Indigenous), and the ways that we can better engage with the ways that these cultural/legal practices generally incorporate a rich tapestry of sounds, visual fields, movements and practices of witnessing.

There you go. It would be great to hear about things others are trying in their classrooms, or about other resources you have drawn on to think through the productive relationships of law and culture.

LAST NOTE:

If you want to do more work with the students on how ‘law’ may be differently structured in legal systems and legal orders (while still being ‘law’), then take a look at Val Napoleon’s article, “Thinking About Indigenous Legal Orders.” In Dialogues on Human Rights and Legal Pluralism, edited by René Provost and Colleen Sheppard, 229-45. Dordrecht Heidelberg New York London: Springer, 2013.

Some Business Associations Materials (‘LaRue’ meets ‘Big River First Nation’)

 businesslawPegadogy Indigenous LawLaRue

[AUTHOR NOTE: I wrote this post early last year at the end of teaching my first iteration of Transystemmic Business Associations in UVic’s JD/JID program. I posted it to my personal blog so I could re-access resources when needed, but it seems to me it is worth re-sharing here, for those who might be thinking about drawing conversations regarding Indigenous Law into the Business Associations/Societies Law classrooms this year. Think of it less as a fully formulated teaching plan, than a set of resources and ideas around one way of getting at linkages in Canadian and Indigenous legal orders related to governance. Feel free to use, adapt, extend, critique or comment!]

One of the challenges in the Business Associations context is how to teach in ways that connect to the broad context in which economic work is situated (ie. not only in corporate boardrooms, but also in small businesses, local cooperative movements, and community-innovations). Another of the challenges for all law schools at this point is how to develop teaching resources that engage with Indigenous law, and Indigenous legal orders. In this point, I offer a few materials at the intersection of these two questions in the context of “LaRue Investments” and “Big River First Nation v Agency Chiefs Tribal Council Inc“. 2020 SKQB 273.

big-river-first-nation-2020skqb273Download

Let me back up to say that, over the years, I have drawn on some of the challenges that have emerged in the context of the family-owned closely-held corporation (LaRue Investments Ltd) that is the ‘owner’ of the Shuswap lands that have been such an important part of the growing up experience of so many in my extended family.

“The Lake” (as we call it) is at the centre of important identity-forming moments for so many of my siblings and cousins. It has also been at the centre of a series of family conflicts that have resulted in nearly 20 years of litigation, involving schisms between people. And so (given that much of the documentation is public), I have sometimes used moments of family history in the classroom, as a way of walking students through a ‘small-scale-but-story-rich’ case study to explore how the concepts we study in the statutory materials have application in many different locations. It is also a way of making visible that the phrase ‘business is business’, often hides another refrain, which is ‘business is personal’!

Family ties to eachother and the land

By this, I mean that an understanding of the affective and emotional dimensions of economic problems can be really important for solicitors. Indeed, it can be just as important as it is for lawyers doing family law, or wills and estates. But it can be a challenge figuring out how to “teach” emotion and affect in the context of the business associations classroom. Getting personal by using the family business has been one strategy. This makes taking seriously also ‘the ground’ on which the conflicts emerge.

Cedar boughs in the forest on the family property (which is on unceded lands in Secwepemculecw)
Cedar boughs and thimble berry in the forest at the lake

For many years, I was also able to have the students think about how to work with a business client by bringing my mother Arta Johnson to class. She was the corporate memory for LaRue after the death of her own father, and had worked with many different lawyers over the years, as the family business had changed and grown. She was well positioned to talk to the students about challenges that had arisen, and about the things that she had done well, as well as about the mistakes that she had made. Quite a gift!

One of the gifts she was able to give us was the opportunity to grapply with “the making of a mistake”. Let’s call this mistake “Wrongly Removing a Director from the Corporate Registry”.

The short version of the story would be this: at one point during an emerging conflict, Arta believed that one of the Directors was not eligible to be a Director, so she went and filled out the Notice of Change of Directors form and submitted it to the Corporate Registry. The questions raised by the mistake were:

  • What is the appropriate process for removing a director?
  • What was the legal effect of submitting a form saying a director had been removed?
  • Might this action be called “oppression”?
  • What remedy would fix the harm?

NOTE: There are many longer versions of this event (which happened in 2003). If you want to follow the longer story, you can check out the history section of the LaRue Investments Ltd website. You will find there a set of video interviews in which Arta talks about the longer versions of this story.

In the classroom, I give the students all the background on this saga. It allows us to look at all the ways directors can be replaced, as well as at the relationships between Directors, and Officers. It lets us see that it is actually very simple to fix some mistakes (eg. all you have to do is submit a new Notice of Directors…no big deal). One can also see that the bigger problem might lie in the ongoing relationships between the parties, and not so much in the legal documentation. This is an important issue in the context of work with Indigenous legal orders, where relationality is a deeply important question in both legal process and legal remedies.

So, lets’s add in a piece of Canadian case law which engages with these questions in the context of Indigenous business associational forms. It is the case of Big River First Nation and Agency Chiefs Tribal Council Inc. The case comes out of the Non-Profit Sector, but gets at the same question as above: what happens when group A tries to remove someone from group B as a director?

What makes the case doubly interesting is that the Judge here refers not only to Canadian law (working with Saskatchewan law dealing with non-profit corporations), but also to Cree law.

Click on the link below for an 8 minute video I prepared about this case for students in my 2020 version of Law 315: Business Associations

https://echo360.ca/media/e28ce6f9-fbc4-4a5e-9a33-69e6d9e5d7e2/public

If you need a bit more backstory on the legal pieces before jumping into the ‘classrooom link’, here are a few more resources. First, here is a summary of the case from CanLII.

https://canliiconnects.org/fr/r%C3%A9sum%C3%A9/73312

Here is a blogpost about the case by (former law student) Miny Atwal.

https://indigenouseconomies.wixsite.com/main/post/big-river-first-nation-v-agency-of-chiefs-tribal-council-inc-2020-skqb-273

The link below will connect to a PDF version of some of my handwritten annotations on a printed copy of the case (which can be useful for modelling to more visually oriented students ‘some’ of the ways a person might engage directly with a written text)

26-big-river-first-nationDownload

I will be so very interested to hear what others make of the case, and how these two stories together might facilitate some of the important conversations we need as we begin struggling towards ways of working through the complicated business of problem solving in this period of decolonial work.

Xwelíqwiya – The Life of a Stó:lō Matriarch

XweliqwiyaIn a recent conversation, Gillian Calder commented on how helpful she has found the IFLS blog (thanks Sonia Lawrence at Osgoode!), and particularly those posts titled “What we are doing/reading/thinking”.   These posts point/link to interesting texts (without worrying about doing the full out suggestion of how those texts might be used).  The posts do serve to get the creative juices running.  Gillian suggested that folks might consider doing something similar with #ReconciliationSyllabus.

In that spirit, I thought I would share some thoughts on a wonderful new book on my bookshelf: Xwelíqwiya – The Life of a Stó:lō Matriarch.  While I haven’t fully sorted out full teaching materials using the book, I am convinced that it is a powerful resource for those thinking about TRC work in the law school.

The book is about the life of Rena Point Bolton.  Rena Point Bolton is, amongst other things, the mother of Steven Point, British Columbia’s first Indigneous Lieutenant Governor.  Rena is a force of nature herself.

The word “Xwelíqwiya”  in the title is her name in Halq’eméylem , the language of the Stó:lō people.

As the books explains, Stó:lō is the Halq’eméylem word for “river”, and the Stó:lō are the river people. In this case, the lower Fraser River.  In the summer, making the trip from Victoria to the Shuswap, the drive through Abbotsford, Harrison Hot Springs and Chiliwack is in fact a drive through Stó:lō territory (or, Stó:lō tém:éxw).

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Another great resource!

As is all too often the case, the first challenge for me was the limits of my own limited language fluency.  That is, the title.  I was just not sure how to pronounce Rena Point Bolton’s name in Halq’eméylem!  Richard Daly, the other co-author, gives a good approximation of how to do it, while acknowledging the challenges for English speakers, since nearly half of the sounds in the Halq’eméylem language don’t exist in English.  But the book invites the reader to nonetheless plunge in and try.

As an aside, Halq’eméylem has 8 different sounds for what in English is the letter “K”! (click here for a link to an interesting article on the expressive qualities of the language, and here for a link to the First Voices, website, where you can listen to and learn words in the language).  I found myself heading to my bookshelf to flip through my copy (well… the copy I lifted from my mom’s bookshelf?) of the award-winning Stó:lō-Coast Salish Historical Atlas.   It’s another great related resource to check out (click here for a link to a “good reads” review of the book).

But, back to Xwelíqwiya.  I have been practicing saying her name outloud, trying to put the sound of her language into my mouth.   I am still processing the book, but have found myself bringing it up in conversation on a daily basis since completing it.   There is so much in there that is interesting.  For today, here are a few comments.

Firstly, I have been increasingly looking for biographies and life histories of women.   There are some out there, but not nearly enough.  And there are CERTAINLY not enough books out there that engage with the lives of Indigenous women.  This book does that, situating Rena’s life in the flow of both Stó:lō history, and colonial history.  It does so in a way that engages with questions of land, language, lineage, class, marriage, child-raising, economy, culture, politics, and change.  Law is never far from the surface.

What was so remarkable was the way that the book was able to follow this one woman’s life over a period of 90 years in a way that personalized questions of history and politics.  Her story is told in a way that let me both have a sense of proximity to her “voice”, and simultaneoulsy contained the kind of “distance” necessary for a measured appreciation of the depth of her actions, her contributions, and her own learnings.

Second point?  This book left me reflecting on the power of its  two-voiced authorship.  This book was written collaboratively with social anthropologist Richard Daly.  At the beginning of the book, there is a discussion of the practice of joint-authorship used here.  They situate this decision against the background of Salish practices of legal governance: in the context of potlatchs and other important governance work, families will hire a Speaker — that is, someone who will speak publically on behalf of the family (rather than having the family themselves do the speaking).  They make visible that Richard Daly’s role in the project was theorized in this way — his role was very much like that of a Speaker.  There is much to be talked about in terms of the way the authorship of this book is thus an example of Salish practices of legal governance, enacted in a contemporary context, with a non-Stó:lō writer being asked to play a part in what is very much the operationalization of a Stó:lō way of living.

This book is largely written with future Stó:lō readers in mind (Rena says this explicitly), but it is also written in a way that invites the non-Stó:lō reader to join, to listen, and to begin to feel the different rhythms of Stó:lō  life, and to appreciate the power of culture, and of women’s place (historically and in contemporary society) in maintaining, promoting and developing social and legal life.  There is a section at the beginning that talks about the different conventions of reading for Stó:lō and settler readers, and what each can know about the other in order to have a productive conversation.  That was really helpful!

The book itself contains so much nuance and complexity about questions of identity, and of pragmatics, and of strategy.  It helped me get a better appreciation of the many ways that we are all actors in history, and of the many pathways that women have walked, and how sometimes those paths circle back to beginnings.  It also explicitly took up questions of silence — of how Indigenous people (and Indigenous women in particular) have experienced both silence and silencing, and of the politics of silence at different moments in time.  It asks us to understand the different meanings of silence, and to ask when the time might come to change some of our strategies.  Really powerful.

Lots to be said about this book, which I think is another of those must-have books.  It is certainly a true gift to those who are seeking to take up the challenge of the Truth and Reconciliation Commission for all Canadians to increase their cultural knowledge. Indeed, six of the Calls to Action place this goal at the centre of calls to “professionals”.  We see acknowledgement of the need for cultural competency in the six calls aimed at:

CallsToActionPDF

  • 23 – Health Care Professionals
  • 24 – Medical and Nursing Schools
  • 27 – Law Societies
  • 28 – Law Schools
  • 57 – Public Servants
  • 92 – The Corporate Sector

I came away from the book having had a taste of what it is to live within a Stó:lō life-world, and the beginnings of an appreciation for the rich history that is written on the land that I live on.  I also have an appreciation for the gift of story, and for this book’s invitation to understand the power and possibility of beginning to live in right-relation.  I love this book, and will be returning to it!  Take a look, and see what you think.   Or, maybe write us a post about something you are looking at these days?   Sharing what we are reading is one way to help us think about the project of decolonizing, and of diversifying the reading lists (particularly the required reading) in our courses.