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:
- Law vs. Culture (in Legislative Texts)
- Legal Orders in Conflict: A BC case involving the sale of Hupacaseth Masks
- 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):
- What kind of property is this?
- Who is the owner?
- What is the underlying purpose of the property?
- What is the legal harm or injury?
- 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.
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.