WHAT’S ‘YOUR’ TREATY?

WHAT’S ‘YOUR’ TREATY? – A Call#28 In-class Exercise (with thanks to Michael Asch and Alan Hanna)

In the Truth and Reconciliation Commission’s 94 Calls to Action, Canadians are told of the importance of Treaties, both about teaching them, and knowing them. Many of us in Law Schools are focused on Call #28.

28.  We Call upon law schools in Canada to require all law students to take a course in Aboriginal people and the law, which includes the history and legacy of residential schools, the United Nations Declaration on Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal-Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.

On-Being-Here-to-Stay-Treaties-and-Aboriginal-Rights-in-CanadaThis is fine in the abstract, but, as with many things, the devil is in the details. My experience is that relatively few law students already know what treaty governs them. Indeed, many law professors are in the same situation.

Certainly, I found myself squarely in the camp of the non-knowledgeable earlier this year while sitting in on Val Napoleon’s Indigenous Legal Theory Class. Alan Hanna (a lawyer with Woodward and Company, a law firm that works exclusively for First Nations organizations and governments) came to give a guest lecture. He began by suggesting a round of introductions. He asked us to each tell him our name, and what treaty territory we were born in. As Alan told us, this is a question that anthropologist Michael Asch has been asking his students for years.

ACK!

Because I work at a University that attempts to acknowledge the territory as part of its protocols, I knew that I was living on unceded Lekwungen, WSÁNEĆ and Coast Salish Territory. But that was not the question posed. I did NOT know which treaty applied in the place where I was born (Calgary). My first impulse was to blame my mother for that appalling gap in my knowledge base (I mean, why take responsibility when you can displace it?!). However, I was also pretty sure that I recalled my mom talking to me about treaties when she was taking University courses in her 60s. I just had not remembered or retained that information. I wasn’t sure which was worse: knowing that I did not know the answer, or seeing so clearly that I was not alone. Several of us in the class experienced challenges in providing an answer.

treaty6map
Map from https://canadianhistoryworkshop.wordpress.com/treaties/treaty-six/

Alan/Michael’s question was super-useful in terms of making visible that there are concrete things individual people can do to begin the process of reconciliation. Thus. Note to self: one step in the direction of reconciliation is to “know the name of the treaty that applies in the territory in which you were BORN, as well as in the territory in which you currently LIVE.” And so, inspired (aka ‘tail firmly between my legs’), I scuttled off to the internet, to find and then read about Treaty 7 (for you Calgarians out there!)

 

A second step in the direction of reconciliation might be “figure out how to work TREATIES into one of the classes you teach this year, no matter what subject you teach”.    What follows, then, is a walk-through of an excercise using “The Treaty Question” in a classroom of 40ish students. This is how Alan and I (who went on to co-teach a course on Indigenous Research Methods and Practice this summer) set it up, in order to get at the benefits of the question with a smaller risk of embarrassment to people who don’t know the answer.

THE EXERCISE

On the first day of class, we ended things with the following assignment. We asked the students to take a few minutes in the evening, and go online to find out what treaty governed the place they were from. In setting up the exercise, I told them how I had been asked this question in a workshop and had been unable to answer it (argh… it is TRUE!!! And it was somewhat humiliating). My thought was that it was better to acknowledge to the students that many of us are in the same rickety boat, so that people could throw themselves into a new exercise without fear or embarrassment about a knowledge gap. This is the thing about growing up in a colonial context. There are many knowledge gaps.

We left the students with some freedom on the ‘from’ part of the question. It could mean where they were born, or where they grew up, or where they were currently living. They were told they would report back to the group the following day, and would be required to tell us three things:

  1. What treaty applies in the place you are from (born in, grew up in, living in now)?
  2. What is something you found interesting or unexpected while doing the research for this assignment?
  3. What is your favourite dessert?

THE RATIONALE

Because this was the beginning of the term, not all of the students knew the others. So at one level, this assignment functioned a bit like an ‘icebreaker’. But is also functioned in a number of other ways:

  1. Substantively, this is a great way to get conversation going about Treaties. For many students, it is likely to be the first time they have been asked the question, have been able to provide an answer to the question, or looked at the text of a treaty. Because the students will likely be from a number of different places, it also means that you will have real variety. For example, in our class, we had a student visiting from Europe, who said that there was no treaty governing her. That was a great answer, as it enabled a good discussion about (for example) The Treaty of Westphalia. If that happens, it opens up space for talking about how Treaties in North America are or are not like other kinds of treaties. (Also, depending on the class you were teaching, it could enable a discussion of failures to keep the terms of a treaty, ie. Can one person get out of it unilaterally? Does a breach of a term necessarily invalidate the treaty itself?).
  1. It enabled the students to go do a bit of research on their own right at the beginning of the class (rather than just being given a map of treaties, or being told what treaty governed), in order to answer a question that was “theirs” (ie. It would differ depending on where they were from). Since they were left to do it on their own, it enabled them to develop their own search strategy, and to see something of what is out there in the world (for both the good and the bad). It also meant that they would have a chance to see, talk about and compare some of the different resources out there.
  1. The students were asked to share what they had learned with their classmates. The point of this was not simply that they acquire knowledge, but that they share it. Each student had a few minutes to ‘teach’ their classmates something substantive (which treaties apply where) and also to practice their own talking/oral/aural skills (in a very low-stakes context). This disrupted the conventional model of the professor as teacher, since the students were active participants in knowledge transmission.   It is also ‘collaborative’ in some important ways (collaborating as a class to come up with our own mapping of treaties), and this too supports the skill-development set out in Call #28.
  1. This approach provided space to develop community in a way that a typical icebreaker wouldn’t. The students tended to share in a different way: they were sharing their research process, along with something of what was surprising or unexpected to them. It meant that we spent a very interesting hour, listening to people give gently personalized accounts about search strategies and their responses to learning about the treaty that was ‘theirs’. We were still telling each other something of where we were ‘from’, but in a way different from the way we usually do it: we were each asked to describe ourselves as governed by a particular treaty. It made space for the students to begin the work of making community with each other. While any form of introduction might work for this, doing it in this way disrupted the more common pattern of replying on disciplinary background or degrees or urban/rural (which can be alienating for some students).

SOME TEACHING/PEDAGOGICAL COMMENTS

  • USING A CIRCLE: When we did this exercise in class, we used the ‘circle methodology’: that is, we broke up the classroom space, rearranging things so that we were sitting in a circle facing each other. There were two of us facilitating the class, so the circle began with one of us and closed with the other [a great technique for circles if you are fortunate enough to have two people facilitating/teaching the class]. Some thoughts on using a circle. If you can do it from time to time, awesome. Clearly, this is more or less of a challenge (and indeed, more or less possible) depending on the structure of the room in which you teach. There are some great advantages to using the circle method for some exercises. Most powerfully, it really lets people speak to each other. In some ways, this is because you can’t really take notes or work with laptops: there is no place to hide! Indeed, you get the advantage of a laptop-free space without having to fight for it. There is something powerful where people are talking to each other and can see each other at the same time. While I think the exercise can work in whatever space you have, it is worth thinking about disruptions to conventional classroom space for this exercise. There is something about the change in space that can also support a change in how the students both share and hear information that is being discussed.   It gives people a chance to really practice their listening skills, and leans more in the direction of the skills list set out in the TRC Call #28.
  • MULTIPLE ITERATIONS: I think this is an exercise that could be done multiple times, and in multiple classroom contexts.   Even if the class participant (student or prof) ‘knew’ the answer already, it would leave space for people to re-read, learn something new, share something new, reinforce what they already knew, make new connections.   Depending on the class you are teaching, students can be asked to engage with the treaties in more or less complex ways (for example, in  Family Law, International Law, Conflicts of Law). There is something to be said, however, for beginning where you are: to taking seriously the notion that knowledge can be acquired in layers, and that people can return to the same question multiple times. There is value in doing so in ways that enable people to connect the TRC questions to their own person experience. This lets people do learning in ways that connect them to their own experience of place. It can enable people to connect to land, while opening space for conversations about the obligations one has within a treaty, and about how one learns about treaty obligations moving into a new space.
  • saltyCaramelsSlipping
    My favourite dessert?  Chocolates hand-dipped by a sibling, of course!

    “DESSERT”: We were not just being flippant in asking the students to share their favourite dessert after telling us what they had learned about the treaty that governs the place they are from. We were asking students to do an exercise that can be uncomfortable/challenging for a number of communities for a number of reasons. It may be challenging for indigenous students who may be thinking about broken promises, connections to land, etc. It may also involve some discomfort for some settler students who are similarly asked to consider what it means to be living in unceded land, etc. By heading to a dessert at the end, students were also given space to bond over treats (you can expect to see people nodding in agreement, or occasionally salivating). The moment of lightness at the end helps with the other moments that are more difficult. It also adds another line of connections, is a reminder of food, and other things that people have in common.

FINAL REFLECTIONS

While we were using this exercise in the context of Indigenous Legal Methodology, I don’t think the utility of this exercise is limited to classes the directly engage questions of Indigenous Law, Land or Pedagogy. This exercise is a pretty good one for basic ‘getting to know you’ purposes in the context of any class (or indeed, any non-class context involving introductions). At least within the law school, we are constantly asking students to tell us where they are from, what degree they have, etc. Often, those demands are just to help us get to know each other. Starting from the point of view of ‘treaty’ is one way to do the same thing, while participating in acts of reconciliation by attempting to place treaty as the ground on which we all stand.

But there is much more to be said about this exercise.  Indeed, to introduce oneself by situating the legal order from which one comes is also a performance of law in many Indigenous legal orders. For example, this was articulated as a legal obligation in current work being done by ILRU in conjunction with the Secwepemc (Shuswap Nation Tribal Council) on Land and Resource Law. Beginning with an acknowledgment of the the territory you are in, and of the territory you come from is a way of acknowledging the existence of obligations and responsibilities attaching to both land and people who have taken on relationships to it and to each other.

In the act of introducing oneself to others through Treaty, then, one can make visible the legal obligations that one carries as a result both of territory of birth, and territory in which one finds oneself (and this is true even where one is not conscious of the obligations that they carry). Knowing the treaties makes it possible to acknowledge that one is a guest in another territory. In a perfect world, it also makes visible to non-indigenous Canadians the notion that they too (or, in my own case, I TOO) have treaty obligations. The big work is how we, as Settler Canadians, actualize or engage with those obligations, as we begin to re-consider the questions of what it means to be on treaty lands (and particularly what it means in contexts where treaty obligations have not been fulfilled).

OTHER RESOURCES TO DRAW ON:5564

  1. The TRC Final Report (Volume 1: Executive Summary) pp. 237 to 254. That section addresses:
    • UNDRIP as framework for reconciliation
      • Calls #43 and #44
    • The Doctrine of Discovery & Treaties
      • Calls #45 and #46
    • It also includes info re this link on treaties and Manitoba. Nice resource! http://www.trcm.ca/treaties/
  1. Michael Asch, On Being Here to Stay: Treaties and Aboriginal Rights in Canada (University of Toronto Press, 2014).  For a helpful review of the book by Neil Vallance, see this link:
  2. Aimée Craft, Breathing Life into the Stone Fort Treaty: An Anishnabe Understanding of Treaty One (Purich Publishing, 2013).  For a short CBC report on the book, click here.

Teaching the 94 Calls to Action in the Classroom

TRC2016
Elder Butch Dick, offering words of welcome (photo credit: Carol Liao)

 

This year, as part of the Legal Process course at UVic, we took two days in January, (cancelled all other first year law classes) and brought the students back into their Legal Process groups to spend some concentrated time on the Truth & Reconciliation Commission’s “94 Calls to Action.”

What follows is first a description of what we did over the two days, and then some comments on how these materials could be adapted for use more generally.

THE TWO DAY PROGRAM – DESCRIBED

  • On the first morning (a 3 hour block), we had a panel of 6 speakers. The goal was, in an embodied way, to introduce our students to the history and context for the establishment of the TRC, including the history and legacy of Residential Schools.  Here is the agenda for the day Agenda for Jan 20 – Day 1 panel  (sorry…it will come up on its side, so you may have to rotate it to read it).  In brief, we had:
    • a Welcome to the territories by Songhees Elder Butch Dick, Artist and Educator
    • Tla-o-qui-aht Elder Barney Williams Jr, member of the TRC Indian Residential School Survivor Committee
    • Karla Point, Hesquiaht First Nation and UVic Cultural Support Coordinator
    • UVic (law) Prof Rebecca Johnson, giving an overview of the legal history leading to the TRC and the 94 Calls to Action [See below for more on this]
    • Ry Moran, Director of the National Centre for Truth and Reconciliation
    • Aimee Craft, Director of Research, National Centre for Truth and Reconciliation
    • UVic (visual anthropology) Prof Andrea Walsh, speaking about the process of repatriating children’s art from a provincial residential school
    • UVic Chancellor Shelagh Rogers, Honorary Witness to the Truth and Reconciliation Commission.
  • On the second morning (another 3 hour block), following a short debrief of the day before, the students worked in small groups on a set of exercises aimed at introducing them working collaboratively and individually with the 94 Calls, with the goal being, in part, developing fluency with the content (that is, just knowing what is IN the document).  Here is a copy of the exercise handout.TRC 2016 assignment handout.  Here is a copy of the instructor notes that were distributed to the teachers facilitating the small group work.  Instructor notes for TRC session-jan19

COMMENTS ON SETTING UP A MANDATORY TWO DAY PROGRAM:

Because these two days were part of a mandatory course, attendance was expected for the two days (for students who were unable to make one session or there other, there was an alternative exercise).  While this was mandatory, we did not want to create more work for either faculty or students:  we wanted a space to do some work, but not in a way that would be overwhelming.  Indeed, the focus was in large measure not on the entire history of residential schools, but on the 94 Calls to Action.

  • We did NOT ask them to read anything in advance, nor did we give them any additional readings about the TRC or its history. We presume that there will be much to do on this front over the course of the students’ education.  At THIS point, we wanted to work exclusively with the 12 page document that is the TRC Calls to Action.
  • To set the context, there was some coordination with first year profs early in the year/term, so that all the students had already had a few lectures relating to issues emerging in the TRC Calls to Action [including a lecture in Criminal law on the Kikkik case, and Inuit relocations; a lecture in Constitutional law on the history of Govt/Indigenous relations leading up to the establishment of residential schools]
  • The first day panel was an intense experience, in a good way.  We had struggled in advance over the question of whether or not to ask someone to come speak with us about their residential school experience. On the one hand was the worry that Indigenous folks are all too often asked to share in contexts that are very exacting (that is, I was not wanting to do more damage).  On the other hand, people pointed out the real importance of having space made for those voices, and of letting others make the decisions.  Certainly, Barney and Karla’s participation was a crucial part of the experience.  As many students noted afterwards, it is one thing to have read about things.  It is a very different experience to be physically present with someone who speaks to their experience.  This was a super helpful piece of situating WHY the TRC Calls to Action matter so profoundly.
  • Part of the goal for the second day small group work was to enable them to meet up again with the groups with whom they had spent the first two weeks of law school.  It was also designed to be more practical and hands on — to look concretely at the text of the 94 calls, and to have a chance to work with them collaboratively with others.
  • In addition to ‘attendance’/participation in the group work, the “assignment” was two small pieces of reflective (non-graded) writing:  at the end of each of the two days, students were to submit a post to a blog (set up so that no one but the teacher would see their comments).  They could put down anything they wanted in terms of responses/comments/thoughts/questions.  The piece would show up as complete/incomplete based on simply the submission of text, and there were no marks for brilliance, nor content. The point was to create a space for reflective thinking, focus on the process of thinking, not on the substance of the thought.

COMMENTS ON ADAPTING THE EXERCISES TO A SMALLER CLASS CONTEXT

These materials were later adapted for use in the context of an upper year Criminal Law seminar course, using two class sessions.

  1. The first class session was in the nature of a lecture/powerpoint, setting up the legal context that resulted in the TRC Calls to Action.  Attached is the powerpoint, which people should feel free to use/modify/adapt, etc. [TRC powerpoint-for sharing]  I have a longer draft narrative text which walks a person through the powerpoint.  I also have an audio file from the talk for Legal Process.  If you want a copy of either, email me at rjohnson@uvic.ca.  I am happy to pass them along.  The point is to introduce students to the largest class-action in Canadian history (the Indian Residential School Settlement Agreement – IRSSA), and to have them see the structure of the settlement agreement.  This helps to make visible who is and who is not covered by the IRSSA.
  2. For ‘homework’ after the first session, hand out copies of the TRC 94 Calls to Action (the document is only 12 pages long), and ask them to read it through, and highlight “The federal government” every time they see it mentioned.  While the feds are not the only actors, they ARE a party to the Settlement Agreement (IRSSA).  Thus, the highlighting helps to make visible the sections that speak to their particular obligations.  Highlighting the document also helps the students see more clearly how many other parties are present in the document.  The other reason to have them highlight is to help with the reading (having a task helps ground the reading, so that eyes don’t just slide over the text and out of focus).
  3. The second class session involves working with the same assignment we used for Legal Process.  Here it is. TRC 2016 assignment handout.  And here are the instructor notes  Instructor notes for TRC session-jan19.  But, in brief:
    • The first exercise focuses on Recommendations 1-42.  The goal in each case is not to have students ‘debate’ the recommendations, or consider IF they should be adopted (that would be OK too, but would be a different exercise than the one we used here), but is rather to spend the time trying to ask [in a very descriptive way] what a working group might do, if they were working for a government who was committed to acting on the Calls to Action.  The goal is to imagine a space that is actively affirmative and committed to reconciliation.
    • It  helps to divide students into 5 different groups (Justice, Education, Health, Language and Culture, Child Welfare), so each group is only focusing on a handful of recommendations.  It also helps for them to have flip chart paper to work on [part of the goal is to also provide a chance for collaborative work and discussion], with plenty of coloured pens.  Remind them as they map out strategies to also be including the section numbers.  The goal is less for them to SOLVE problems, than to be able to describe the sections, and identify the kinds of verbs and parties involved.  For the exercise, we asked them to imagine themselves as the federal government.  But many recommendations are aimed at other parties, or are collaborative.  So the goal was also for them to think about the mechanisms they would need to put in place to build relations with the other parties they are to be collaborating with.  It was helpful (when touching base with the groups as they work) to keep reminding them to think about questions like “division of powers”, and “cooperative federalism”, and also about resources OTHER than money.  If they work on flip charts, you can hang them up, so that they can move around to see what the other groups have come up with, which can help in identifying themes.
    • The second exercise (10 different possible questions to work on) was designed to focus on Recommendations 43-94.  These questions again presume people in the community, and don’t require the student to imagine themselves as a lawyer.  They can be providing information more generally based on their knowledge.  The goal is to help an interested person locate sections that may be of interest, and to think about creative solutions.  Here, try to focus them in on finding recommendations that might be drawn up even where they don’t require action (that is, consider that there are recommendations that might serve as inspiration for people wanting to take steps, rather than seeing them only as obligations to  be met or avoided).  This approach makes it easier for them to read the sections with a sense of who is invited in, and the kinds of actions of reconciliation that might be imagined.

The above was one way of introducing the 94 Calls to Action into an upper year crim law class.  Given the breadth of the calls, it is hopefully clear that one might just as easily do this in the context of many other law school classes.  Indeed, it is also possible to do this with high school or general community groups, adapting the materials both to the time available, and the particular interests of the group.