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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Incarcerating the victim: Indigeneity, gender and the Canadian legal system’s treatment of ‘Angela Cardinal’

Earlier this week, I posted a long thread on twitter about state processes relating to ‘Angela Cardinal’.  The original thread can be seen here.  This post gathers my tweets into a single place, edits them for clarity and format, provides more links, and expands a bit on some of the discussion I provided.

Cardinal is a pseudonym for an Indigenous woman who was the victim of a kidnapping and aggravated sexual assault committed by Lance Blanchard.

You may know her as the woman who was shackled and imprisoned, ‘ostensibly to ensure that she provided testimony’ at Blanchard’s preliminary hearing.  Canadian media reported this story in mid-2017 (warning: this link contain photographs of Cardinal’s injuries) for example here.

Justice Macklin (2016 ABQB 706) described Cardinal’s treatment by the justice system as ‘appalling’.  Complaints were filed with the Alberta Judicial Council (‘AJC’) against the preliminary hearing judge (complaints reported here).

Two important things happened in this case in late February 2018.  First, an independent investigator released a report on the incarceration of Angela Cardinal.  Second, the AJC issued a press release stating that it had concluded ‘that there was no misconduct’ on the part of the preliminary hearing judge.  This release was not posted on a government website, so far as I can tell, but I obtained a copy of it from the AJC and it formed the basis of media reports such as this and this.

The Report documents failures of the Alberta Legal System and makes recommendations about matters such as improving victim support services in Edmonton.  The AJC press release is shorter.  The AJC release and the Report are at odds with one another in two respects.

The legal and factual basis for Ms Cardinal’s incarceration

First, the Report states that Ms Cardinal’s detention ‘was not contemplated by any section of the Criminal Code’ including s 545 (which was relied upon in court).  The AJC release asserts that ‘There was a factual and legal foundation for the remand order made by Judge Bodnarek.’

The AJC release does not state what the factual or legal basis for Ms Cardinal’s detention was – it merely asserts that one exists.  I asked the AJC (by email) to explain the basis it had identified. The reply from legal counsel to the Provincial Court of Alberta said in part:

‘The Judicial Council has, in summary form, set out its findings and reasons in the press release. This is an unusual step, taken solely because of the intense media interest that has occurred. It is clear that the Council’s decision is at odds with some of the statements made in the Campbell report. The Council will not speculate as to the basis for the statements made in the Campbell Report.

Given that this matter is still before the Courts, the Judicial Council will not be providing any further comment.’*

* My understanding is that the portion of the Blanchard matter which is still before the Court is the Crown’s application for a dangerous offender order in respect of Mr Blanchard.

The judicial deprivation of any person’s liberty is the most serious step available to Canadian law and is rightly subject to Constitutional protections. The deprivation of Angela Cardinal’s liberty was astonishing – as she said herself ‘I’m the victim and look at me. I’m in shackles.’

Particularly in light of the Report’s conclusion, there is a genuine public interest in understanding what legal and factual basis the AJC identified for Cardinal’s incarceration.

For me, the AJC’s assertion raises troubling questions such as:

  • Are other sexual assault victims at risk of similar orders if they have trauma responses to the experience of testifying?
  • Is the AJC endorsing the judicial incarceration of sexual assault complainants to secure their testimony?

The role of Indigeneity, gender and class in Ms Cardinal’s treatment

The second discrepancy relates to this paragraph from the independent Report, which appears on p16:

Screenshot 2018-02-27 17.13.09

(The submission made by IAAW and LEAF which is referenced in the above paragraph can be read here.)

The AJC release states that ‘There is no evidence whatsoever that the gender or aboriginal status of the complainant influenced any of Judge Bodnarek’s rulings in this case.’

This one requires a little more unpacking.

Trying to adopt a generous reading, I take the AJC’s statement to be a conclusion that Judge Bodnarek’s reasoning was not based – explicitly or implicitly – upon the discriminatory stereotypes against which much SCC and Court of Appeal case law warns.

But it may also be the case that Ms Cardinal’s gender, Indigeneity and class were important to a judicial understanding of this case.  The CJC Ethical Principles for Judges state at p23:

Screenshot 2018-03-01 14.00.06

The commentary on this principle explains a little further what the CJC intends:

Screenshot 2018-03-01 14.01.01

The SCC and Courts of Appeal have, of course, made similar statements about the importance of substantive equality and the value of ensuring that legal processes – particularly those related to sexual violence – accord substantive equality, including to Indigenous women.

It is inherent to substantive equality that identifying differences between people and considering the relevance of those differences may be necessary in order to secure substantively equal outcomes.

I interpret this ethical principle to be an invitation to Canadian judges to consider whether and how factors such as Ms Cardinal’s Indigeneity, gender and homelessness may be relevant to a case in which she participates as complainant.

Viewed from this perspective, the AJC’s conclusion that Ms Cardinal’s Indigeneity and gender did not influence Judge Bodnarek’s rulings (including his decision to incarcerate Ms Cardinal) seemingly fails to engage with the expectation set out in the ethical principles.

Why does it matter that the AJC release implicitly adopts a formal equality benchmark – asserting the irrelevance of race and gender – to the rulings in this case?

We know very well that Indigenous women disproportionately experience sexual assault and interpersonal violence.

We know that colonialism and state policies such as the taking of land and imposition of residential schooling have inflicted poverty and intergenerational trauma on many Indigenous people and fractured many Indigenous families.

We know that widespread racism against Indigenous people has translated into systemic bias within the Canadian criminal legal system.

We know that Ms Cardinal was homeless when she was assaulted and at the time of the preliminary hearing.

These and other factors are considered further in the IAAW and LEAF submission to the independent investigation.

If Ms Cardinal had been on trial, as an Indigenous person she would have been entitled to have these matters considered under s. 718.2(e) of the Code, Gladue and Ipeelee.  As a victim in this case, one might hope that she would – at a bare minimum – be accorded equivalent consideration.

Context and circumstance

Judge Bodnarek faced an extremely difficult situation in the preliminary trial and he seems (based on the facts found by Macklin J at trial) to have acted in part on the basis of factual misinformation from lawyers.

The AJC release states that the panel was ‘acutely aware’ that Ms Cardinal ‘was a person, an individual with a name, history and heritage.’  It calls upon ‘all participants in the justice system’ to strive to ensure that’ victims of crime – particularly Indigenous victims – are treated with respect.  This paragraph seems to be in tension with the proposition that Judge Bodnarek acted properly when he acted without regard to Ms Cardinal’s gender and Indigeneity.

The bare assertion that Ms Cardinal’s race and gender did not influence the rulings in this case raises more questions than it answers.  It is at odds with the Report’s conclusion that systemic bias played a role in how the case unfolded, and particularly with the  statement in that Report that ‘To ignore this aspect of Ms Cardinal’s case is to ignore the broader problems facing the criminal justice system, and the troubling statistics concerning its treatment of Indigenous women.’

Having reviewed the transcript of the preliminary hearing, IAAW and LEAF also reached a quite different conclusion from the AJC about the role of stereotypes in this case:

Screenshot 2018-03-01 14.41.38

and:

Screenshot 2018-03-01 14.56.33

The IAAW and LEAF submission and the independent Report both provide justifications, based on a careful reading of the relevant transcripts and other documents, for their conclusion that systemic bias played a role in the incarceration of Angela Cardinal.  Read against the background of these documents, the AJC press release feels unconvincing and it raises real concerns for me in its lack of clarity about the law relating to the incarceration of victims of sexual violence.

The AJC release does state that ‘media reports do not fully reflect the difficult circumstances of the proceedings’.

Given its view that the media reporting so far has been incomplete, it seems a shame that the AJC has not taken the opportunity to correct the public record and thereby to explain the basis on which they concluded that Judge Bodnarek had a legal and factual basis for ordering the incarceration of Angela Cardinal.

Under s. 34(5) of the Alberta Judicature Act, the AJC had no obligation to make any part of its deliberations public.  It’s good that they responded to public interest by providing some information.

It must also be said that even if the AJC’s conclusions on the points I have canvassed were different, this would not necessarily lead to a conclusion that the Judge committed misconduct.

However, required by the AJC’s process to rely on the press release alone, I am concerned that both the AJC and Judge Bodnarek may have fallen into the context-blindness against which the independent Report warns.

Concluding thoughts

As I write this lengthy post, I am extremely conscious of a broader socio-legal context.  The reports and recommendations about the Blanchard case were released on the heels of the not-guilty verdicts in the Stanley and Cormier trials.  Readers who want to know more should follow Indigenous voices on twitter (here’s a good list to start with) and read some of the brilliant scholarship being produced by Indigenous academics (for example here, here, and here).

I am tremendously grateful to the Institute for the Advancement of Aboriginal Women and LEAF National for the leadership they have shown in studying and drawing attention to the enormous problems that persist within the Canadian legal system’s treatment of Indigenous women.  Their work has given form and shape to the Canadian principle of substantive equality, pushing against an institutional current that pulls insistently towards denying the relevance of gender, race and other characteristics.

I was hesitant to post these reflections here because I do not yet have a teaching plan or any real suggestions about how we might draw on these materials in our teaching.  I’m grateful to Rebecca Johnson for suggesting that I should document these thoughts, and I invite others to share ideas about how we might build upon them in working towards a #reconciliationsyllabus.

Relationship disclosure

I am now a member of LEAF’s Legal Practice Board, however I was not a member of that board when LEAF and IAAW prepared their submission to the Independent review, and nor did I play any part in the preparation of that submission.

 

 

 

 

 

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

IMG_20171129_160130
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!

Core Strengthening – A MOOC to get you going!

Part of TRC Calls to Action  #27 and #28 includes training in “intercultural competency”.   I find myself reflecting on the very real challenge for many of us working in law:  how do we as professors strengthen the grounds of our own intercultural competency?   Part of what we are engaged in is a new practice of balancing.  What resources are available to both students and faculty alike?

There are some very interesting resources out there and available in the world.  Just as one example, here at UVic, our colleagues Robina Thomas and Rob Hancock at the office of Indigenous Academic and Community Engagement have developed a Cultural Acumen Training, program, and have been providing the first module (an 80 minute ‘foundations’ session) to Faculty, to staff, and in classrooms.   It is a delight (and a politically meaningful one) to see institutional support for the kind of learning/unlearning that has to be done as we move forward on this work.  One of the ways I think all of us can contribute to the work is to support and make use of the resources available in our particular institutions (conscious of course of the thoughtful cautions of Jula Hughes re the colonization of cultural competency work).IMG_20171122_112632

I also want to do a big shout out to University of Alberta, and their Indigenous Canada MOOC (Massive Open Online Course) [taught by Professors Tracy Bear and Paul Gareau].  It is a wonderful response to the TRC, and I cannot recommend it highly enough.

If I were to suggest a gift for the holidays, it would be to give yourself the gift of signing up for this course.  OK.  The thing is, this gift is FREE!  But you can also pay for it.  I think it was something like $65 if you want to take it for the Certificate.  I took the PAYMENT option, partly as a way of trying to keep myself accountable (and so i would have a small amount of pressure, so i would TAKE the time needed each week to actually DO the work).

The Course is super well designed, and has 12 lessons/weeks.   The site tells you to anticipate a time commitment of 3-5 hours a work per week.  I will say it took me less time… maybe because i am just so smart already?!  🙂  That said, i have subsequently returned to and re-watched several components (sometimes with my kids), so there you go on the time front.

Here some truly delicious things about the course:

  1. It is in manageable time chunks!  The course is online (I guess that is why one of the “O”s in “MOOC” is for “online?”)  It has been designed so you can work around a fragmented schedule (if your life works as does mine).  It is broken down into small video components (each between 10 and 20 minutes long at the most).  The videos have little quizzes built into them (so you can answer questions right at the spot that you are getting access to new information).  I totally enjoyed watching a segment or two in the evening, sometimes while eating dinner. IMG_20171122_152153
  2. There is art!  In the design of the course, they worked with artist Leah Dorion, to have her produce original art work for the course.  For each week in the course, there is “Interactive Painting” segment where the artist walks you through one of the paintings, discussing the elements in the painting, and how they relate to the subject.   Various elements from the paintings are then incorporated (as visual markers) into the weekly lessons in ways that really help to anchor and extend the content.
  3. There is significant breadth in coverage.  Topics for the 12 lessons include the fur trade and other exchange relationships, land claims and environmental impacts, Indigenous women, legal systems and rights, political conflicts and alliances, Indigenous political activism,urban Indigenous governance practices, contemporary Indigenous life, art and its expressions and more.  There is also a great 49 page “Native Studies Glossary” with links to internet resources.
  4. The production values make it a pleasure to watch.   We academics are smart, but not always fun to watch when filmed.  They did a really good job on the design, and so I found the mix of talking heads, images, animations, and text to really hold my attention.   It is designed in a way to touch various learning styles.  In short, the videos not only held my attention, but gave me lots to think about in terms of pedagogies!  I am also in love with the intro music for the course (and often found myself humming along).

In short, there are great resources out there to support us as we do the work of extending our own intercultural acumen, of familiarizing ourselves with the history that is our own.  This is a resource that I would feel comfortable recommending to students and colleagues alike.  Certainly worth thinking about as a concrete action each of us can take in the direction of taking up our own personal obligations under the TRC to educate ourselves for the work ahead.

 

 

 

Tips for Organizing Reconciliation Events

Tasha Henry (who wrote the post on “Art as Intervention“) sent an additional note pointing to a toolkit resource they had found especially helpful for teachers and professionals trying to organize reconciliation events.  She noted the following tips:

  • Ensure that the location is culturally safe and accessible to everyone invited.
  • Ensure proper acknowledgement of the territory at the start of the event.
  • Where possible, invite an Elder to open the event with a blessing and invite them to give you direction and advice to ensure proper protocol is being followed. Be sure to find out how best to honour their time and contribution.
  • Where possible, explore ways to incorporate Indigenous cultural practices into the event in a respectful manner, such as singing and drumming by Indigenous community members. Make sure to honour this contribution.
  • Approach guests/speakers as early as possible, and ensure that all aspects of the event including honorariums are clearly communicated in writing.
  • Arrange for food and drinks. Sharing food is an essential part of the event.
  • Where possible, invite participants across sectors and cultures (e.g. multicultural organizations, Indigenous organizations, faith based organizations, the justice system, restorative justice groups, Ministry of Children and Family Development, First Nations Court workers, social service workers, counsellors, health care professional, women’s organizations, child and family services etc.)
  • This discussion may be triggering to some participants, so make sure that supports and opportunities for debriefing are available on-site.
  • Consider funding costs to cover transportation for guest speakers if required.

(Reference: Eguchi, L., Riley, J., Nelson, N., Adonri, Q., & Trotter, S. (2016). Towards a New Relationship: Tool Kit for Reconciliation/Decolonization of Social Work Practice at the Individual, Workplace, and Community Level. Vancouver, BC: British Columbia Association of Social Workers. Retrieved from: http://www.bcasw.org/wp-content/uploads/2011/06/Reconciliation-Toolkit-Final_May-11.pdf

 

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”.

googly squirrel

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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