Bannock, a Graphic Novel & Conversation: Re-framing Justice Using the Teachings from “Mikomosis and the Wetiko” — by Veronica Martisius

[Ed Note:  Veronica Martisius is a student at the University of Victoria Faculty of Law, the co-chair of the Indigenous Law Students Association, and was a co-op student with the Indigenous Law Research Unit at UVic during the 2018 Winter Term.  We invited her to contribute a post reflecting on the workshop discussed below.]

In the wake of the acquittals of Gerald Stanley and Raymond Cormier for the murders of two Indigenous young people, Coulten Boushie and Tina Fontaine, The University of Victoria arranged  ‘5 Days of Action’.  During those 5 days, faculties and groups across campus held a number of action-based events.  One of these was a collaborative workshop involving the Office of Indigenous Academic and Community Engagement, the Office of Equity and Human Rights, and the Faculty of Law.  The two-hour workshop was held at the First Peoples House and was open to the public.  Approximately 40 people participated.  I was one of the facilitators of this workshop (along with Professors Gillian Calder and Rebecca Johnson), and offer here some reflections on the event.

The purpose of the workshop was twofold: 1) To actively engage in making UVic a diverse, welcoming and inclusive place to study, work and live and; 2) To create space for Indigenous laws. In their article Gathering the Threads, Napoleon and  Friedland remind us that “State law is not the only source of relevant or effective legal order in Indigenous peoples’ lives…Indigenous laws continue to [exist and] matter today.”

Canada is a multi-juridical society, and, as such, justice systems ought to reflect an understanding of law across social boundaries in order to be just.

The Stanley and Cormier cases illuminate ongoing institutional discrimination and systemic racism on the part of Canada and its laws.  In particular, Canada’s criminal justice system, which was imported from Britain and imposed on Indigenous peoples, does not reflect Indigenous values or notions of what justice requires nor does it incorporate Indigenous legal orders.  But what if it did?  What might that look like? To answer those questions we had the workshop participants take a close look at the story of Mikomosis and the Wetiko.

Mikomosis
Photo by: Veronica Martisius

The graphic novel, Mikomosis and the Wetiko, is based on a story told by Val Napoleon, drawing on graduate work done by Hadley Friedland (now published as The Wetiko Legal Principles) and by the Indigenous Law Research Unit (ILRU) while it was working on the Accessing Justice and Reconciliation Project.

The story explores the tale of a Cree man sentenced to death by a 19th-century Alberta court after carrying out an execution ordered by his Cree community  under a Cree legal concept known as Wetiko.

A team of Indigenous lawyers travel back in time to intervene and apply aspects of Cree law and legal processes not originally presented. With a more in-depth understanding of the circumstances, the court finds the accused not guilty.

*** In the graphic novel, Mikomosis executes Sap-was-te when it is determined by the decisions makers that there is no other way to keep the group safe from her increasing violence.  Just as execution would not be an option in Canadian law today, it is important to point out that this would never be a current option in Cree law today either. ***

You might be thinking to yourself, “why is this story relevant in responding to the Stanley and Cormier verdicts?”

It is relevant because, as Robert Clifford (2014) argues, “colonial power structures are best mitigated and subverted by applying Indigenous narratives, including Indigenous systems of law.”  In other words, Canada is a multi-juridical society, and, as such, justice systems ought to reflect an understanding of law across social boundaries in order to be just.  Mikomosis and the Wetiko is one example of how Indigenous societies used and applied their own legal principles to deal with harms and conflicts between and within groups and how they might be usefully applied today.  For information about a current example of Indigenous law and procedure in action on Coast Salish territory, click here.

During the workshop we started off by asking the participants two questions:

1) What do you think of, or picture, when you hear the word, ‘law’?; and

2) What do you think of, or picture, when you hear the concept ‘Indigenous laws’?

As you can see from the two images above, when thinking about the ‘law’, participants used various words that reveal what may be attributed to its adversarial nature.  When thinking about ‘Indigenous laws’, participants used words that reflect a more holistic approach.

After the large group discussion, we divided up the participants into groups of three. Over a delicious lunch of soup and bannock, we asked each participant to read the graphic novel.  In addition to being provided with a copy of the graphic novel, participants received a handout including a glossary of terms and Cree words, and a set of ‘re-framing’ questions that move from generalizations to specifics.  For example, with respect to the latter, moving from “what is aboriginal justice?” to “what are the legal concepts and categories within this legal tradition?”

After lunch, each group engaged in a facilitated conversation.  To help guide the conversation, we used the Mikomosis and the Wetiko: A Teaching Guide for Youth, Community and Post-Secondary Educators, and asked the following questions at page 40:

  1. What does the graphic novel make you think about?;
  2. What part made the most sense to you, or felt the most uncomfortable?; and
  3. If you were a character in the graphic novel, who would you be? Who would you most want to sit down and talk with? What would you ask that character?

Each conversation generated a diverse range of comments and questions around the relationship between Indigenous laws and Canadian law, pan-Indigeneity, responsibility vs. guilt, safety and protection of the victim(s) and the community, different legal processes, burden of proof, gendered power dynamics, ‘Whiteness’, decolonization, and dispelling stereotypes about Indigenous peoples.

Discussion Visual
Discussion Visual

Participants expressed a desire for change with respect to addressing and eliminating the injustices that Indigenous peoples continue to face.  They talked about how to affect change in their daily lives through introspection, getting to know the local Indigenous community, learning about the land they live, work and/or play on, their responsibility as guests/visitors, building relationships, engaging with their various social networks (family, friends, classmates and co-workers) about the issues, and lobbying the government.  At the end of the workshop, each participant wrote themselves a letter as a future reminder of their individual commitment to take up the Truth and Reconciliation Commission’s Calls to Action.

In a March 14, 2018 article that explores the idea of a cross-cultural criminal justice system, law professor, Marilyn Poitras said, “[g]oing home to suburbia or the farm or the reserve and shutting the door is not going to work. How are we going to open doors, open hearts, open conversations? For the sake of future generations people need to talk with each other.”

If you are an educator, lawyer, law student or a concerned citizen who is not sure how to spark up meaningful discussion about ways to re-frame justice in Canada, consider bannock, a graphic novel & conversation to get the ball rolling.

Resources Referenced: 

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Towards the Royal Proclamation and Covenant of Reconciliation: Short in-class discussion exercise for Constitutional Law

from_collections_canada
Royal Proclamation of 1763

Patricia Cochran
Faculty of Law
University of Victoria
pcochran@uvic.ca

This is a description of and reflection on an in-class exercise I did with a group of 115 students studying constitutional law.  The exercise asked the students to respond to the TRC’s call for the creation of a Royal Proclamation and Covenant of Reconciliation.

Call to Action 45 reads in part:

45. We call upon the Government of Canada, on behalf of all Canadians, to jointly develop with Aboriginal peoples a Royal Proclamation of Reconciliation to be issued by the Crown. The proclamation would build on the Royal Proclamation of 1763 and the Treaty of Niagara of 1764, and reaffirm the nation-to-nation relationship between Aboriginal peoples and the Crown.

In this exercise, I invited students to work together to address some preliminary issues that would need to be addressed in order to move forward with this recommendation.

Context

At my institution, constitutional law is a year-long, mandatory, first-year course that aims to introduce students to important constitutional law issues, and to provide students with a substantive and methodological foundation on which to further study the constitution in the future.  We meet for 1 hr and 20 minutes twice a week.  This year, the first four classes of the term were devoted to exploring questions around the sources of Canadian constitutional law and how those sources relate to each other.  In particular, we focused on the complicated questions of sovereignty, jurisdiction, and the history of Indigenous-Crown relations.  I assigned excerpts from:

  • the final RCAP report,
  • books by Jeremy Webber and John Borrows,
  • SCC decisions including Guerin and Tsilhqot’in.

borrows book

One key element of the course is participation in an online Reading Journal.  Throughout the year, students are asked to write a certain number of reflections (this year, 8) on the text we read, before we discuss them in class.  The journal entries are not evaluated on their content, only on the fact of their completion.  As an instructor, I find reading these journals an invaluable part of my teaching practice; they reveal to me common questions, themes, points of confusion and the amazing range of connections that students make to their other academic training, community work, and life experiences.

Class objectives

In the fourth class of the term, we addressed the difficulties that arise for Canadian constitutionalism when we squarely face the question of how Canadian law applies in this land at all.  Presented with the history of Canadian law and the inability of colonial law to justify itself on many of its own terms, students often see a crisis of legitimacy or a paradox.  This inherent tension is perhaps nowhere more starkly presented that in paragraph 69 of the Tsihqot’in  decision:

[69]      The starting point in characterizing the legal nature of Aboriginal title is Dickson J.’s concurring judgment in Guerin, discussed earlier.  At the time of assertion of European sovereignty, the Crown acquired radical or underlying title to all the land in the province.  This Crown title, however, was burdened by the pre-existing legal rights of Aboriginal people who occupied and used the land prior to European arrival.  The doctrine of terra nullius (that no one owned the land prior to European assertion of sovereignty) never applied in Canada, as confirmed by the Royal Proclamation of 1763.  The Aboriginal interest in land that burdens the Crown’s underlying title is an independent legal interest, which gives rise to a fiduciary duty on the part of the Crown.

In this class session, I aimed to provide ways for students to address this tension/crisis/paradox directly, and (drawing on the SCC’s reasoning in the Quebec Secession Reference and scholars such as Webber and Borrows) to think about ways in which constitutional law is a complex process for facilitating relationships.  Also, perhaps more than anything, I wanted to provide a way for students to hold in view a serious, foundational critique of the legitimacy of Canadian constitutional law, without seeing as inevitable a cynical, thin or purely instrumental understanding of what law is and its role in society.

To that end, I devoted the last 20 minutes of the class to a small discussion exercise addressing the Truth and Reconciliation Commission’s call for the creation of a Royal Proclamation and Covenant of Reconciliation.  My goal for this exercise was to orient students to the future and the ongoing relationships in which they participate.

In-class preparation

To prepare students to do the exercise, I spent about 20 minutes discussing the argument offered by John Borrows in Chapter 1 of Canada’s Indigenous Constitution.  I also spent about 20 minutes addressing, in very general terms, three legal theoretical concerns that I drew out of the questions and comments raised by students in their Reading Journals.  I wrote three sets of terms on the board, and under each set of terms, articulated for the full group several questions that were raised privately by students in their journals.

LAW/FORCE

LAW/CUSTOM

LAW/FACT

Under the first set of terms, we discussed law’s disputed relationships to violence, force and power.  I discussed arguments that law and force are mutually exclusive concepts (referencing the students’ exposure to legal positivism in their introductory legal process course), and arguments that legal structures are simply institutional articulations of political power relations.

Under the second set of terms, we discussed the potential usefulness of thinking about legal obligations as different from other kinds of obligations (here, drawing on an earlier class discussion of the Guerin case).  I identified the concerns about the conceptual indefinability of “law” (if everything is “law,” nothing is), as well as the history of using the boundaries of “law” to identify certain people as having none.

Under the third set of terms, I talked about legal claims as distinct from other kinds of “factual” claims.  Again drawing on Webber and Borrows, I described the possibility of understanding law a rhetorical practice, in which descriptive modes of speaking may simultaneously be exhortatory, aspirational, and future-oriented.  I emphasized for students the contested nature of that approach, inviting them to work on developing their own view.

webber book

Discussion exercise on the Royal Proclamation and Covenant of Reconciliation

Against that background, I invited students to work in groups of four to take up the TRC’s Call to Action 45.  I gave them only the first paragraph of the Call, leaving out the list of items that the Commission saw as important elements to include.  My rationale was to make sure students did not feel bound by that list, or distracted by the fact that most of its elements would be unfamiliar to them (not yet having studied s. 35, for example).

I acknowledged, and urged students to appreciate, that in order to meaningfully respond to this Call to Action, far more knowledge would be required and radically different processes would be needed.  Thus, I did not ask them to draft a new Royal Proclamation, but rather to address some preliminary questions.  The exercise directed as follows:

Drawing on the course materials in constitutional law so far, discuss this Call to Action with your group and create a record of your conversation on a large paper.

Consider the following questions:

1.     What form might such a Proclamation take? What would it look like?  (Format? Languages? Long or short? Detailed or general? Etc.)

2.     What are some of the substantive issues or themes that you would expect to find addressed in this Proclamation?

3.     What kinds of processes would be required to respond meaningfully to this Call to Action? (Who would participate? What knowledge and expertise would be required? Whose interests are at stake?)

In responding to these questions, you may find it useful to consider questions such as:

  • What would the scholars we have engaged with so far include in the Proclamation?  What would Webber think, what would Borrows think?  In what ways might they disagree?
  • How do your ideas for the Proclamation relate to the historical accounts offered by RCAP?
  • How does your discussion relate the new Proclamation to existing constitutional texts such as the Royal Proclamation 1763,  Constitution Act 1867, Constitution Act 1982
  • Is your new Proclamation consistent with Guerin? With Tsilhqot’in? Or does it change the law?  Does it take a form that can achieve that change?

To engage in this exercise, students were provided with 11 x 17 sized papers and coloured markers.  I gave them around 15 minutes to work on the three questions, to make notes on the papers, and then post their work around the room.  For the final 5 minutes, students walked around to read their colleagues responses.

TRC45

Reflections

Most student groups organized their notes according to the three questions posed, listing elements they discussed under each theme.  As expected, a large range of issues were discussed.  The prompt about language yielded an unexpected (to me) amount of conversation, with numerous groups exploring how to make their Proclamation equally authoritative and/or accessible in multiple languages.

On reflection, I believe the exercise achieved its core objective of providing students with an outlet for future-oriented thinking in constitutional law.  The largest drawback I observed relates to the basic tension I often experience in teaching a broad, introductory course, and that is the question of whether it is more pedagogically effective to begin from concepts or from context.  This exercise, presented so early on in the course and in such a short time, tended towards engagement with abstract concepts rather than the rich, real context of questions around sovereignty.  This made the exercise accessible, and served the objective of encouraging critical thought around basic concepts such as sovereignty.  However, it also encouraged a broad and sometimes superficial engagement, with many student groups speaking in general terms about justice and equality, with little attention to the real nature of the dilemma.  (For example, no student group noted whether their proposal contemplated a change to the law, or distinguished between actions that would have to be taken by federal and provincial governments, Indigenous governments, Canadian courts, civil society, etc.).  In some ways, the goal of the exercise was undercut to the extent that it allowed students to make sweeping claims about the legitimacy or illegitimacy of the Canadian constitutional order, without grounding those claims in legal or political context, or accounting for the implications of such claims.  This observation leads me to think that the value of an exercise such as this may be in its potential as part of a larger, iterative process.  Repeated again near the end of constitutional law, this exercise might allow students to draw together their forward-looking aspirations with a more concrete sense of its context and implications.

I will try some version of this exercise again in the future, with a view to framing constitutional law as a potential site for transforming relationships between Indigenous and settler peoples and legal orders, and individuals and communities as active agents in the creation of constitutional law.

Resources

John Borrows, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010).

Jeremy Webber, The Constitution of Canada: A Contextual Analysis (Oxford: Hart Publishing, 2015).

Guerin v The Queen, [1984] 2 SCR 335.

Reference Re Secession of Quebec, [1998] 2 SCR 217.

Tsilhqot’in Nation v. British Columbia, 2014 SCC 44.

Information about the Royal Proclamation of 1763 from UBC Indigenous Foundations: http://indigenousfoundations.arts.ubc.ca/royal_proclamation_1763/.

 

 

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

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

 

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

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

I.  Family Law.

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

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

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

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

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

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

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

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

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

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

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

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

Screen Shot 2018-01-06 at 6.30.58 PM

(Art by Dr. Val Napoleon)

Case brief:     Name of story with full citations

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

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

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

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

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

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

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

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

II.  Sex-O

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

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

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

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

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

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

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

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

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

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

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

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

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

III.  Self-reflection

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

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

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

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“What is missing?”: Marie Clements’s New Opera about Missing and Murdered Indigenous Women

Violence against Indigenous women and girls is pervasive in Canada. The National Inquiry  Interim Report, (Our Women and Girls are Sacred) cites an estimate that Indigenous women are “12 times more likely to be murdered or missing than any other women in Canada, and 16 times more likely than Caucasian women” (at pp. 7-8). And the Native Women’s Association of Canada points out that numbers alone communicate little about the lives of Indigenous women and girls, or the calamitous losses experienced by their families and communities.  As NWAC point out in their discussion of the Faceless Dolls Project,  “each statistic tells a story.”

c5-1121-missing-jpg
The cast of Missing (photo credit: Dean Kalyan)

In a new chamber opera that debuted in 2017 in British Columbia, librettist Marie Clements and composer Brian Current portray ongoing colonial violence against Indigenous women and girls and emphasize the need for difficult learning.

Missing, performed in English and the Gitxsan language, immerses audience members in a discomfiting comparison of the divergent life chances of two young women with similar aspirations. Ava, a white law student, passes by a hitchhiker on the notorious Highway 16, the “Highway of Tears” where so many women have gone missing. After a car accident, she glimpses the body of a high school student, a character Clements names only “Native Girl,” who stands in for the multitude of lost girls and women.

Ava returns to her studies after recovering and encounters Dr. Wilson, a guest lecturer, whose discussion of missing and murdered Indigenous women challenges students to move beyond fleeting sympathy to grapple with their own complicity. “What is missing,” Dr. Wilson asks the students, in a society that “can’t recognize another human being as another human being?” One of Ava’s classmates disavows shared responsibility for the structures and histories that make Indigenous women vulnerable to violence; she angrily insists that they are to blame for their own “bad choices.”

forever-loved-FINAL-cover-small.jpgThe student’s defensive reaction in the opera, and her reliance on problematic stereotypes, will be familiar to many instructors. Maxine Matilpi explains that “when we dispel lies and deal with the omissions from their prior education, non-Indigenous students tell me that they would rather we didn’t spend so much class time on colonization or racism; they find it uncomfortable and frustrating, even irritating” (See her article “Personal Political Pedagogy with Respect to #MMIW” in D. Memee Lovell-Harvard and Jennifer Brant, eds, Forever Loved: Exposing the Hidden Crisis of Missing and Murdered Indigenous Women and Girls in Canada (2016), p. 264).

But in the opera, Ava, is not defensive.  She has been transformed by her near-fatal accident, and is receptive to Dr. Wilson, who instructs her in the Gitxsan language and then mentors her when she becomes a new mother. The care and cultural teachings that Ava receives are further reminders of what the other young woman was deprived of by her assailant, while scenes of her mother’s limitless grief portray how badly she is missed. As Ava encounters Native Girl in uncanny ways, she learns to reach out to her, offering care and witnessing.

Marie Clements, an acclaimed Métis playwright (she is also the writer and director of the new film The Road Forward), when interviewed about Missing, said that her desire was to create a work in this Opera that would engage the empathy of Indigenous and non-Indigenous audience members by portraying “a Canadian story . . . one that we’re all responsible to.”

The disappearances and tragic deaths continue, and at the first hearings of the National Inquiry, families have described losses that extend across generations. Marilyn Dumont, a Métis poet and professor, commemorates Helen Betty Osborne, a high school student who had to move away from home to attend high school. “Betty,” Dumont writes, “if I set out to write this poem about you / it might turn out instead / to be about me / or any one of /my female relatives.”

Clements’ opera is a great resource for those looking for ways to engage with the difficult realities of our shared colonial histories in ways that make this story one that we are all responsible to.

SOME RESOURCES:

Chantelle Bellerichard, “New opera about MMIWG tells a story ‘that we’re all responsible to,’ says co-creator” (Oct 29, 2017) http://www.cbc.ca/news/indigenous/mmiwg-opera-to-premiere-in-vancouver-next-week-1.4375797

Sarah Petrescu, “Power of Opera Gives Story of Missing Indigenous Women Emotional Depth” (Nov 21, 2017) http://www.timescolonist.com/entertainment/power-of-opera-gives-story-of-missing-indigenous-women-emotional-depth-1.23099825

Interim Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, “Our Women and Girls are Sacred” (2017) http://www.mmiwg-ffada.ca/files/ni-mmiwg-interim-report-en.pdf

Highway of Tears Symposium Recommendation Report (2006) http://www.turtleisland.org/healing/highwayoftears.pdf

Jorge Barerra, “100s of Faceless Dolls Disappear” (Oct 10, 2017) http://www.cbc.ca/news/indigenous/mmiwg-faceless-dolls-disappear-1.4363768

 

Thinking about “The Law of Evidence” through the Structure of Indigenous Language

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My new favourite book

With classes nearly over this term, I happily turned to my “Books to Read!” pile.   At the top of the pile was a new book by Marianne Ignace and Ron Ignace, Secwépemc People, Land and Laws (McGill-Queen’s Press, 2017).

So many of the summers of my life have been spent on the shores of the Shuswap Lake. The smell of the forests, the feel of the winds, sound of the water, the taste of thimbleberries… all that has been imprinted deep in my heart.  I had been looking forward to spending some time with this book, to continue to learn about the history of the land, the people, and the laws of this place that I so love.  I am only into the 4th chapter, but I am not disappointed.  I can already see that this is going to be a book I will be carrying around with me.

In line, then, with my new goal for myself (to do at least one blogpost a week on what I am learning), let me share one of the amazing things I learned today from the this book.  I learned that the Secwepemc Language is an amazing resource for learning about law!  I finished reading Chapter 4 (“Secwepemctsin: The Shuswap Language”) this afternoon, and then spent the next hour walking up and down the halls of the law school, hunting down colleague after colleague to make them listen to what I had learned (Val, Pooja, Jess, Simon, Tim, and Bob have got to hear my enthusiasm first hand!).

The big discovery for me (on p. 138 of the book) was something called “Evidentials”.  This is a form of suffix that does not exist in English grammar.   In Secwepemctsin, as I understand it from the chapter, a suffix can attach to a verb, in a way that lets the speaker tell the listener about the evidentiary support for the statement.  That is, it indicates how the speaker comes to know the truth of the statement:

  1.  from first hand knowledge,
  2. from hearsay (what others have said), or
  3. because there is physical evidence of the action.

In short, as the Ignaces point out here, when people are telling each other about things that happen in the world, they are also sharing information about the evidence that exists for the statements made.

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Page 138

Of course, we can share information about evidentiary support in the English language: it is just a matter of adding more detail.  And when it comes to legal action, those evidential details matter a lot: if you appear as a witness in  a common-law court, you will be asked how it is you come to know what you know; the presence of physical evidence to support the claim is alway relevant; there are all sorts of rules to govern hearsay evidence.  That is, there is much to explore around evidentiary rules related to the relevance, credibility, reliability and sources of statements.

But there is something so interesting in how such questions are organized in Secwepemctsin in part through grammar.  Questions of evidence seem to be woven into the structure of speech and thought (rather than being separate questions emerging primarily in the context of formal legal settings.)  An orientation towards evidence is embedded in grammar itself.

What is so beautiful to me (or do I just mean mean ‘surprising’?)  is that the structure of Secwepemctsin itself, as a language, orients itself towards transparency in the  practices of validating knowledge.  Grammatically, people tell each other not only what they know, but HOW they know it.  This means speakers are grammatically required to make (suffix based) choices about the actions they describe, and listeners have the capacity to make choices about further inquiries needed on the basis of what they hear. Given suffixes, they can determine whether to seek further information from others, or to validate information by looking to physical traces to support what they have heard.  Certainly, this requires speakers and listeners to engage their own faculties of reasoning in conversation, by reminding them that all statements have an evidentiary status of some sort.  This is such a sophisticated and nuanced structure of thought.   I have been reading a number of Secwepemc stories in English, and I have a new appreciation for the ways that that the stories, in their original language, would be carrying additional information and nuance.

This encouraged me to go back to the TRC calls to action, and the section on Language.   Call #14 says “We call upon the federal government to enact an Aboriginal Languages Act that incorporates the following principles:

(i) Aboriginal languages are a fundamental and valued element of Canadian culture and society, and there is an urgency to preserve them.

There are interesting challenges in thinking about how each of us is invited to make the TRC Calls to Action “our own”.  Call 14 aims at the federal government, and it asks for legislation:  it is easy to see this call as within purview of others.  And yet, there is something important in acknowledging that we are each in some way called to think about our relationship to the PRINCIPLES that are identified here.  In learning more about Secwepemctsin (the language of the Secwepemc peoples), and about the place of evidentials in that language, I came to appreciate the importance of the principle expressed in TRC Call to Action #14: ‘that Aboriginal languages are a fundamental and valued element of Canadian culture and society’.   There are very good reasons for all Canadians to begin to learn with and about the Indignenous languages of this country.

One starting point might be this book.  Certainly, its discussion of Evidential Suffixes, is a wonderful way to draw insights from Indigenous Language and Indigenous Law into the Evidence Law classroom!  Can’t wait to learn more from what Marianne Ignace and Ron Ignace have brought together in this book!

Pulling the Weeds – by Suzanne Lenon, Kara Granzow & Emily Kirbyson

As non-Indigenous faculty and graduate student teaching in the disciplines of Sociology and Women & Gender Studies, we regularly include discussions of settler colonialism in our course material. And, as teachers in disciplines that encourage critical thinking about societal power arrangements, we wish to develop learning resources in ways that build accountability to the TRC’s calls for reconciliation and Indigenous scholars’ calls for decolonization.To this end, we were awarded a small grant from our university in which we proposed to develop pedagogical tools that would more tangibly speak to the colonial politics of knowledge production, trouble the idea that settler colonialism is of the past, and ‘unsettle’ the racial and heteronormative colonial logics of identity and belonging.

Situated as we are at a post-secondary institution built into Blackfoot territories and in close proximity to the largest land-based reserve in the nation, we have a student body that seems to experience settler colonialism in a variety of ways, directly and/or recognizing its importance, or as completely disconnected from their everyday life. It is this full range of student experiences that we attempt to invite into an ‘unsettling’ pedagogy.

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Spotted Knapweed in bloom [http://mtweed.org/weeds/spotted-knapweed/]
We offer here a discussion of one assignment we designed called “Pulling the Weeds.”[1] The assignment was designed to foreground land as crucial to decolonization and to provoke student thinking on the relations between themselves, land, property, and nationhood in a local context (Tuck & Yang, 2012). Students were to (1) read the Wikipedia entry for spotted knapweed and submit a hard copy, marked with notes and/or highlighted excerpts; (2) go out on to the prairie and find the knapweed; (3) document the experience of picking it; and (4) write short responses to versions of the following questions:

  1. Describe the experiences of seeking out the knapweed.
  2. Describe the sensory elements of picking the knapweed (how did the soil smell, what was the texture of the weed, etc.).
  3. Where did you pick the weeds? Whose land were you on?
  4. What is your relationship to the patch of land that you picked the weed on?
  5. Write on your (dis)identifications with the knapweed or the plants that you left in the ground.
  6. Why do you think I asked you to pull an invasive plant species in this course?
  7. What connections can you make to this week’s readings?

The activity was assigned in a second year feminist theory course, a third year sociology of race and ethnicity course, and in a graduate level methods and theory course. The readings that students were required to complete varied from course to course, and ranged from Leanne Simpson’s (2014) Land as Pedagogy: Nishnaabeg Intelligence and Rebellious Transformation, Adrienne Rich’s (1994) Notes Toward a Politics of Location, and chapters from Audra Simpson’s (2014) Mohawk Interruptus: Political Life Across the Borders of Settler States.

Students were encouraged not to worry about having the correct answer. They were encouraged to be creative and thoughtful, and to respond even if they were unsure of a question’s meaning. In spite of the bewildered looks when we asked them to go weed-picking, the very physical nature of the assignment expressed in their papers (the heat of the sun, the toughness of the weed’s roots, the itchiness of the weed, the pleasure of being outside), and the anxiety expressed about not being able to ‘find’ knapweed and hence complete the assignment, students wrote rich, varied, complicated, and thoughtful reflection papers. In their course evaluations, some students articulated the transformative learning that occurred from this assignment, suggesting that we delivered in fulfilling our institutional motto, “Fiat Lux” (Let there be Light).

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Rocks painted by Alice Matisz, artist

However, we also wish to reflect here on two inter-related sets of limitations to the assignment.

The first set of limitations is related to the mechanics of the assignment and the strictures placed around it by virtue of being developed and carried out in the context of a post-secondary institution. We asked students to pick knapweed only once, but now wonder about requiring multiple knapweed pulls over the early fall months of the semester as part of an ongoing reflexivity-praxis assignment. Leanne Simpson (2014) writes in “Land as Pedagogy: Nishnaabeg Intelligence and Rebellious Transformation” that theory is not just an intellectual pursuit – “it is woven within kinetics, spiritual presence and emotion, it is contextual and relational. It is intimate and personal, with individuals themselves holding the responsibilities for finding and generating meaning within their own lives” (p. 7). This beautifully captures our aspirational desires for this assignment.

We wonder, then, what effect(s) several knapweed pulls might have on students, on their intimate engagements with the prairie, on their meaning-making of social locations, on fostering the process of an ‘unsettling’ pedagogy? Moreover, how would a focus on the restoration or identification of native plant species (rather than only on the eradication of invasive ones) shift the performative and meaning-making axis of this assignment? Yet, as Simpson also reminds us, neither the practice of picking knapweed nor the restoration of native plant species can be performative of land as pedagogy when the necessary conditions are not in place. For Simpson, such conditions include the requirement that our post-secondary institutions ensure “the full, valued recognition of [Indigenous] freedom, sovereignty and self- determination over bodies, minds and land” (p. 17).

The second set of limitations has to do with some of the oversimplifications of the assignment. We required students to identify knapweed with the help of a Wikipedia page that, among other things, describes the weed’s ‘systematics and taxonomy.’ We chose this website because it is highly likely that it would be among the first sites a student might otherwise visit to find out more about knapweed, and because the literary practices constituting the webpage’s knowledge production remind us of those employed in the classificatory work at the heart of scientific racism and the colonial project. What we did not foresee, however, was the extent to which students would rely on the language of the Wikipedia entry to explain their processes of weed identification thereby unwittingly reproducing and reifying colonial systems of classification. This constitutes more than a limitation for us; it is also a failure of the assignment.

Complicating this, students’ papers drew parallels between the tenacious ability of knapweed to stunt the growth of other plants and the white settlers who worked to invade and take over Indigenous bodies, lands, and lifeways. This raises a number of concerns for us. First, despite our attempt to heed Tuck and Yang’s (2012) warning, the assignment provokes primarily metaphorical understandings of knapweed as settler colonialism and its eradication as decolonization. Second, this metaphor relies upon and reproduces a settler/Indigenous dyad as ahistorical and naturally existing. Third, it naturalizes a hostile relationship between the two, the outcome of which is both anticipated and assumed final. How can this then constitute the assignment as an ‘unsettling’ pedagogy? As problematizing settler colonialism “as a living phenomenon?” (Monture 2007, p. 207). Moreover, we worry that in attempting to address “the settler problem” (Regan 2010, p. 11), we inadvertently re-centered precisely that which we hoped to unsettle. This is a failure for us. One of the unforeseen outcomes in attempting ‘unsettling’ pedagogy is producing communities of individuals who embody and enact another version of settlerhood, that of the enlightened settler. We realize that we must be vigilant about the subtle and less obvious forms that uphold settler colonialism: we worry that success in teaching about colonization that leaves any room for a redeemable enlightened and benevolent settler subject (including ourselves as teachers), whose governments have apologized and who ‘know better’ than earlier generations, is part of the ongoing remaking of settlement.

One of our intimate attachments is to be ‘good’ teachers, that is, to teach anti-colonization and antiracism on the Blackfoot territories occupied by the University of Lethbridge in a way that avoids the pitfalls of pedagogies of inclusion and the fallacy of ‘safe spaces’. We share our experience of this assignment in the conviction that the moments of disorder, failure and uncertainty that arise within our teaching practices are sometimes necessary mis-steps. Though such practices may propel us towards imagining other, perhaps less colonial, ways of being in and of the world, they are also only made because of the colonial foundations on which our presence here as teachers and citizens resides.

 

[1] Pulling the Weeds was inspired in part by a published conversation between Snelgrove, Dhamoon, and Corntassel (2014) wherein Corntassel describes efforts, largely on the part of Cheryl Bryce of the Songhees First Nation, and a “Community Tool Shed”, to revive Lekwungen “foodscapes and landscapes” (p. 25). The Community Tool Shed, located in what is now commonly called Victoria, B.C., is a site that brings together Indigenous and non-Indigenous folks who work to rid Lekwungen homelands of invasive plant species and to foster traditional plant growth.

 

References

Monture, P.A. (2007). Racing and erasing: Law and gender in white settler societies. In S. P. Hier and B.S. Bolaria, eds. Race & racism in 21st century Canada: Continuity, complexity, and change (197-216). Peterborough: Broadview Press.

Regan, P. (2010). Unsettling the settler within: Indian residential schools, truth telling, and reconciliation in Canada. Vancouver: UBC Press.

Rich, A. (1994). Notes towards a politics of location (1984). In A. Rich (Ed.), Blood, bread and poetry: Selected Prose 1979-1985 (210-231). London: Little Brown & Co.

Simpson, A. (2014). Mohawk interruptus: Political life across the borders of settler states. Durham & London: Duke University Press.

Simpson, L. B. (2014). Land as pedagogy: Nishnaabeg intelligence and rebellious transformation. Decolonization: Indigeneity, Education & Society, 3(3), 1-25.

Snelgrove, C., Dhamoon, R., & Corntassel, J. (2014). Unsettling settler colonialism: The discourse and politics of settlers, and solidarity with Indigenous nations. Decolonization: Indigeneity, Education & Society, 3(2), 1-32.

Tuck, E. & Yang, K.W. (2012). Decolonization is not a metaphor. Decolonization: Indigeneity, Education & Society, 1(1), 1-40.

 

The Skirt Project: connecting gender, religion, and colonialism

My name is Natalia, and I am a third year law student at the University of Victoria. I grew up on the territory of the Qayqayt First Nation, in New Westminster, British Columbia, and have since lived on Otomí, Totonac, Nahua and WSANEC lands. I’ve spent the last four months as a summer research assistant to Professor Rebecca Johnson, who has given me fascinating research tasks as well as significant freedom to explore related topics.skirt poster

The research project started with a question about skirts. Why are women in some indigenous communities required to wear long skirts to participate in spiritual ceremonies? This question about a practice known as the “skirt protocol” quickly blossomed into a series of interconnected queries about the relationship of clothing to culture, religion, tradition, gender, colonialism, and identity. The complexity of these topics led me to simplify my job description when asked about it, and as a result most of my friends and family have been extremely jealous of my summer job “googling skirts”.

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And I did engage in a significant amount of exploratory googling, bookmarking hundreds of newspaper articles, blog posts, and Twitter exchanges with the word “skirt” in the title. I also just talked to people. In casual discussions with family and friends about my research, I was really struck by how many individuals have had something to say about it. Almost every single woman I spoke with (and a few men, too) immediately wanted to share a personal anecdote about a moment in which they confronted rules about what they could or could not wear. For many people, these stories brought up strong feelings of anger, indignation, and resentment, even when they had occurred years earlier.

stripe skirtThis was particularly true of my aunt, who recalled being made to kneel on the ground as a seventh-grader while her school principal measured the distance from her hemline to the floor. She describes being made to feel ashamed and embarrassed. hijabHer mother, my 81-year-old grandma, remembers the incident as well. She marched to the school to support my aunt knowing that the skirt did, in fact, violate the dress code, because my aunt had outgrown it and she couldn’t afford to buy a new one – and because the vice principal’s own daughter had worn the exact same skirt and had not been punished. For my aunt, the primary injustice of the situation was related to gender; the dress code was unfair because it imposed much stricter rules on girls than on boys. For my grandmother, the injustice was class-based: the dress code was unfair because it was hard for lower-income families to ensure their children complied with it, and because it was unevenly enforced based on social rank. Both my aunt and my grandmother were right, and their experiences only go to show that rules about clothing are not neutral, arbitrary, or trivial, but in fact affect people in diverse and disproportionate ways.

But what does this slight from nearly five decades ago have to do with reconciliation?

churchRules about how we dress are sometimes obvious and sometimes not, but either way, they are so ubiquitous that nearly everyone can recognize the symbolic power of clothing and identify with the experience of being told what or what not to wear. This means that clothing provides a really useful “way in” to more complex debates about cultural identity, spirituality, tradition, and gender in indigenous and non-indigenous communities. Serious tensions over how women should dress occur across diverse populations, but they are further complicated for indigenous peoples by the legacy of colonialism and the ongoing struggle to decolonize. Questions about whether the skirt protocol is really an indigenous tradition quickly give way to questions about how colonialism affects traditional practices, who has the power to decide which traditions are valuable, and how people are differently impacted by traditionalism depending on their gender. Learning about the rationales for the skirt protocol quickly spawns more questions about the relationship between spiritual belief and indigenous identity. Exploring indigenous identity leads to important questions about cultural authenticity. web

This month, British Columbia will implement a new K-12 curriculum which mandates inclusion of indigenous content, perspectives, and pedagogies, and the National Inquiry into Missing and Murdered Indigenous Women will officially begin. The new curriculum responds to the Truth and Reconciliation Commission’s 94 Calls to Action by attempting to address the education system’s failure to acknowledge the grievous harm done by colonialism, and the system’s own role in committing and perpetuating that harm. The Inquiry will attempt to understand and address the enormous problem of violence against indigenous women. I think that reconciliation is best served when we make visible the connections between these two projects.

Over the summer, I developed a series of resources which I hope will be useful for learning and teaching about these connections and for facilitating conversations about how clothing is connected to gender, colonialism, religion, culture, and identity, using the skirt protocol as a point of entry. The resources are varied in scope and content. They include a short video as well as a Prezi presentation, and a paper entitled Clothing the Collective which explores these topics in greater detail. There are a series of workshop ideas and lesson plans: see the Talking Skirts Lesson Plan and Backgrounder and the Creating Conversations Activities. There is an annotated list of existing teaching resources, which I’ve categorized by grade level and format: see Teaching Resources. All of the materials have also been consolidated into a single document, available here: The Skirt Project Consolidated Materials. I hope that these materials can be of use in responding to Calls 27 and 28 and 60 to 63 of the TRC’s Calls to Action.

This project received support from the Religion and Diversity Project and the Indigenous Law Research Unit. For further information, please feel free to contact myself at nsudeyko@gmail.com, or Professor Rebecca Johnson, at rjohnson@uvic.ca.

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