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!

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Children’s Art and Indian Residential and Day Schools

In between some errands that took me to downtown Victoria this week, I grabbed a few minutes to stop in at the Legacy Art Gallery.  Screenshot 2017-11-25 12.57.31The current exhibit is titled “There is Truth Here: Creativity and Resilience in Children’s Art From Indian Residential and Indian Day Schools”.  I had some expectations of what I might see there:  for the past two years, the UVic Law School has invited Professor Andrea Walsh (the Guest curator of the exhibit) to come and speak to the first year class about a collection of paintings done by children at the Alberni Residential Indian School.

This collection of children’s art, preserved by their extra-curricular art teacher Robert Aller, was gifted to the University after Mr. Aller’s death.  At that point, recognizing that it might be possible to identify the creators of some of that art, steps were taken to locate the now-grown children, and return their art to them.  The story of the Mr. Aller, the students, their art, and its re-patriation is a powerful moment in understanding the Canadian history of Indian Residential Schools and resistance by both children and some settlers to formal and informal policies of assimilation and cultural genocide. [Click here for a link to a short video on the project]

IMG_20171125_115846.jpgWhat was new to me were the pieces of art from the former Inkameep Indian Day School (the Osoyoos Indian Band, in the Okanagan).  I took advantage of a few stolen moments to take a quick stroll through the Gallery to get my eyes familiar with the pieces, knowing that I would be coming back for an extended visit later this month.  I also picked up a copy of a 2005 Gallery Catalogue Guide edited by Andrea Walsh, titled, “Nk’Mip Chronicles: Art from the Inkameep Day School.”

Having finished reading the Guide, I have been reflecting on some of the things that really struck me.  One of these was the reminder that if a person is serious about learning the history of Residential Schools in Canada (and many of us are indeed serious), then there is much to learn: there were many schools, which operated over many years, and there are many stories to be told.

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Nk’Mip Chronicles, p.17

One of these is the story of the Inkmeep Day School.  It is a story that speaks of the important work done by Chief Baptiste George to have a day school built in the community, “to keep his people together and to retain the Okanagan teachings.”  The school opened in 1915, with the Band using their own funds to build the school, and hire and pay the first teacher (an African American man who had married an Okanagan woman and thus knew the language).  The Guide makes visible the real challenges involved for the Band in attracting and keeping long-term experienced teachers (a challenge shared by many Indigenous communities).

The centre of this particular story is the relationship between one settler teacher (Anthony Walsh), and the children and families of the Inkameep community.  During the ten years he taught at the Inkameep Day School (1932-1942), Anthony Walsh worked actively to learn about the people and culture of the place he was living.  He learned to listen, and he valued and honoured the philosophies, stories, and experiences of the children.

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Nk’Mip Chronicles, p.18

During that time he worked with them, the children produced art that Walsh submitted to the Royal Drawing Society of London.  The children produced plays based on Okanagan stories, were invited to perform them for audiences in both Canada and the US, and raised money for charities like the Red Cross.  The children’s art was exhibited across Europe and Canada. Walsh worked with the children and their communities, “using the children’s art to oppose dominant views about aboriginal children and their place in Canada.”

When Walsh finally moved from the community, the teachers that followed did not follow his path: rather than incorporating Okanagan culture into the curriculum, they followed the assimilationist path more common in the rest of Canada (which included the decision by one teacher to burn papier-mache masks that the children had used in their dramas, as well as children’s art which remained at the school).

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Nk’Mip Chronicles, p.23

The story of Anthony Walsh and the children at the Inkameep Day School time thus invites us to both remember and reflect on the efforts of this one community (a First nation and its non-native neighbours) to be involved in the ongoing practices of building relations through cross-cultural exchanges through both visual and performing arts.

This story, and the art and performances it generated, left me thinking about the stories of the past that we choose to draw forward.

It reminded me of the importance of seeing forms of resistance, possibility and respect that were enacted in the past. It left me thinking also about the importance of similar action in the present.  It reminded me of the importance of art in opening up spaces of connection, and spaces of relation.

It also made me think about ways people today might respond to the Truth and Reconciliation Commission‘s Call to Action #83:

83. We call upon the Canada Council for the Arts to establish, as a funding priority, a strategy for Indigenous and non-Indigenous artists to undertake collaborative projects and produce works that contribute to the reconciliation process.

Perhaps what should interest us is less the call for government to provide funding for such collaborations (though such funding would facilitate this work!) than the call for Indigenous and non-Indigenous artists to undertake such collaborations.  I think the story of Anthony Walsh invites even those of us who are not artists to imagine ourselves as participants in this call to action.  In his work as a teacher, Walsh collaborated with others through his engagement with the space of art, through learning to how listen to what the children’s art (and the children themselves) could teach.  The engagement came even in the context of restricted funds.  As Anthony Walsh himself argued in the 1976 interview above, “we miss opportunities because too often we wait for ‘funding'”.  And so one question is, “what are we waiting for?”

There is much inspiration to be found in this story of the Inkameep Day School.  It sets out for us an example of engagement through the arts.  What we have here is the collaboration of children, their families, a  teacher and the neighbouring community in drawing on the arts to open up space for sharing truths, for listening, for healing, and for learning different (and better) ways of living with each other.   Surely this is a story worth telling, and also one worth trying on for size in our own lives.

If you are in Victoria, head over to the Legacy Art Gallery to check out the show.   If  time or geography makes that impossible, you should still check out the website for the exhibit, content and design by Dr. Jennifer Claire Robinson.   It is rich with resources that can be worked into your own teaching.  You can see pictures of all the works included in the exhibit from the four different schools (along with some discussions of the work from either the curators or the artists themselves):  Alberni Indian Residential School, Inkameep Indian Day School, St. Michael’s Indian Residential and Day School, and Mackay Indian Residential School.  The website (still being updated while the show is on) will also include intergenerational essays by relatives of the child artists.  Plus there is more!:

  •  Click here for the background story to the return of the Alberni Indian Residential School art
  • Click here for RIDSAR (Residential and Indian Day School Art Research) videos, and news media
  • Click here for a list of additional Resources (to both the Exhibition and TRC related links)
  • Witnessing is an important aspect of protocol for many First Nations.  Below are links to four important discussions of what it means to be a witness in the context of Indian Residential Schools:

 

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.

 

 

 

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.

 

#StandForTruth, or,What is the place of Indigenous Laws in Truth and Reconciliation? (a bit of a rant)

Supreme Court of Canada
The Supreme Court of Canada in Ottawa is shown on Tuesday, April 14, 2015. THE CANADIAN PRESS/Sean Kilpatrick

In the middle of the last gasps of marking law school final exams, I find myself mentally (and, frankly, emotionally) caught up in discussions about the upcoming Fontaine case at the Supreme Court of Canada.  So… I thought I might as well get my stresses and anxieties articulated.

As I best understand it, the Fontaine case concerns what to do with the 38,000 (highly personal and confidential) records (plus another million supporting documents) that were collected or created during the Independent Assessment Processs set up as part of the Indian Residential Schools Settlement Act (IRSSA). (The Settlement gave us both the IAP and the Truth and Reconciliation Commission).

At the time survivors gave their testimony in the IAP, it was not made clear to survivors what would happen to the records.  Now there is significant contestation: should the records be kept by Archives Canada?  By the NCTR (National Centre for Truth and Reconciliation)? Should they be destroyed?  Should individual former students have a say in the matter?

The resolution was to give individual former students a 15 year window to come forward if they wanted their documents archived with the NCTR.  At the end of that period, all remaining documents are to be destroyed.  The SCC will hear the case on May 25, 2017.

The Coalition to Preserve Truth has been granted Intervenor status in the case (artist Carey Newman, and lawyer Nicole Bresser have been driving forces behind the coalition).  The Coalition is described thus:

We are the Coalition for the Preservation of Truth whose members are representatives of both residential school survivors and intergenerational residential school survivors.  The coalition is formed to advocate for the preservation of the Indian Residential School Settlement Agreement – Individual Assessment Program’s documents. 
 
The Coalition recognizes the ongoing impacts of intergenerational trauma and as such, we acknowledge that future generations have a right to know the content of these documents.  The Coalition wishes to preserve these documents while honouring individuals’ rights to privacy.

I personally support the Coalition for Truth.

What has been tricky for me is trying to describe what this support means.  So, I thought it would be useful to try to articulate (at least for myself) what it means for a non-Indigenous Canadian law professor to #StandForTruth in case like this.  This is particularly so when I know that Indigenous colleagues and friends are significantly torn over the case, and may be lining up on both sides (for retention and for destruction. (You can see the Affidavit of Carey Newman here Affidavit #1 of Carey Newman, or view the Coalition’s funding campaign on the gofundme here).

In this case, at the heart of things, my support of the intervention of the Coalition to Preserve Truth is linked to their attempt to change the story that is being told about this case.  Canadian law sees this as a story of privacy and confidentiality.  It that the story that best describes the situation here?   A story about the need to honour individual choice?  A story about the protection of individual interests in privacy and confidentiality?

Those are, of course, important values, ones that have often been denied to Indigenous people in Canada (and certainly denied in the context of residential schools).  And yet….The Coalition to Preserve Truth raises important questions about people in relation, and relationships to both the past and the future, particularly in the context of times of trauma and injury.   Should the records related to residential school survivors be kept or destroyed?  What are the relationships of the individual to the collective?  To the past?  To the future?  The Coalition’s intervention, with its focus on intergenerational connections, invites us to understand that the case should not be decided in the absence of Indigenous Laws.

To put it bluntly, Canada has a long history of making decisions about Indigenous, Metis and Inuit peoples rather than with Indigenous, Metis and Inuit peoples.  Will this case be similar?

That is, what matters here is not only the ‘outcome’ [destroy or keep the records], but also the ‘process’.  It matters that there is space for Indigenous Laws to be enacted here.  Or maybe flipped, it is very problematic that there has NOT been space for Indigenous Laws (and by that, I am including substance, process, protocol, ceremony and more) to be applied here.

I think that is why the intergenerational point the Coalition is making is so important.  It is a question of Law.  During the Independent Assessment Process, former residential school survivors shared stories of the ways that they had suffered harm that was both individual and collective.   We already know that those stories we gathered and collected in ‘non-optimal’ ways.  That is, they were not gathered in ways that would have better followed the laws (both substantive and procedural) governing the people whose stories were shared (be that Salish, Cree, Migmaw, Inuit, Metis, etc).  They also were not gathered in ways that followed Canadian law (ie. by having explicit consent forms providing choice to witnesses).

And so we are now in a position where the Canadian legal system is positioned to decide how to best deal with yet another harm experienced by both the people who shared their stories, and by the families and legal orders to which those people belong. And it will decide it in the legal lingua franca of ‘jurisdiction, privacy, and access to information’.

As the case is set out, the solution is one which is flawed in so many ways.  I get why people feel sick at the notion that, in the context of this history of genocide, the records that were created (the testimony that was witnessed) would be destroyed.  I also get why other people feel sick at the notion that their words and memories will be permanently kept by the very government that made possible the very harms they suffered.  The choice — Keep or Destroy — is a false and cruel one.  (i.e., would you prefer I cut off your right arm or your left arm?)  Framed in this way, the choice is one that (like the residential schools themselves) splits generations from each other, as people are required to consider which two untenable options will do less harm in the future.

And I acknowledge the (settler) desire I feel to keep quiet, rather than risk choosing ‘the wrong side’ in this struggle, or interfere in something that is not ‘my business’.  But the history of residential schools IS my business.  It is all our our business.  And I can’t help but think that it is not OK for settlers to stand on the side in silence, as if we can best support and respect indigenous peoples by letting them fight it out (in the corner Canadian law and history has forced them into).

There is no easy solution here.  But it is problematic to proceed as if Indigenous Laws are irrelevant, as if Indigenous Legal Orders do not have resources, as if Indigenous Communities are not deeply invested in how the memories of their peoples are held and kept and treated.   It is also problematic to proceed as if survivor voices don’t matter (in either direction… destroying the voices of those no longer able to give consent, or denying the express wishes of some for destruction of their testimony, or denying that the entire process as created conditions of unsafety and new trauma for people)

It matters not just WHAT the Court does here.  It matters also HOW the Court does it.

Indigenous peoples, in different communities, have resources for such moments, resources that are rich, and textured, and full of space to hold differences of opinion.

How do ‘we’ (people in the legal community) take up our TRC reconciliation obligations under Calls to Action #27, #28, and #50 to teach Indigenous Laws?  How might we think about our obligations to Indigenous Peoples, and that includes obligations to take into account their own laws and own ways of resolving conflicts like these?

How does Canada enact its own obligations to deal respectfully, its own obligations to acknowledge the harm it has done, its own obligations to learn more about how it too needs to act in ways that respect its connections to the past and the future.  Can the Supreme Court, at this moment, see the obligations that govern it? Obligations that may involve principles not only of Canadian law, but also of Indigenous Laws?

What I find powerful about the The Coalition for the Preservation of Truth, with its reminders about intergenerational connections, is its invitation for us to take law seriously.  It invites us to understand that we (indigenous and settler people) are both a part of this story.  It invites us to take seriously how we think about shared memory, and a shared past.  It invites us to ask what it might mean to ACTUALLY honour the testimony of those who spoke their truth at the IAP hearings.  Preserving Truth invites us to change the story we are telling about this case.

It invites us to imagine that it may be possible to simply stop for a moment.  What ever happens in the Court room, is it possible for the rest of us to make space for the questions to be reframed? It is possible to acknowledge that Indigenous law must be part of the decision-making?  What might the case look like were the courtroom to be populated with Indigenous peoples bringing principles of Indigenous law to bear in order to find solutions that truly honour the spirit of reconciliation?  What might the case look like if our law schools were populated with Indigenous colleagues doing the work of Indigenous (and non-indigenous) law? (see Zoe Todd’s latest blog)

Of course, it is hard to talk about this without getting personal (or being personal?)  Easy to blame the system.  I am left wondering really about what it might mean for me (in my own classroom, in my own home, in my own interactions with others, in this blogpost?!) to begin to to talk about the ways that I too, living in unceded Coast Salish territories, might have legal obligations to learn the laws of this place, and to make good on my own legal obligations to the past and the future (and indeed to the present).  What might it mean, anyways, for me to “Stand For Truth”, or “Stand In Truth” or “Stand With Truth”?

OK.  Rant over for now.   My hands up to my many Indigenous, Metis, and Inuit friends who bear the heavy weight of this case, which is re-traumatizing to people on so many levels.

Back to marking….

 

 

Indigenous Law and Procedure in Action: Vancouver Island Esquimalt/Ditidaht Hunting Case

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Roosevelt Elk

The TRC Calls to Action speak to the importance (for law students, lawyers, doctors, nurses, journalists, bureaucrats, citizens) of learning about:

  • Treaties
  • Aboriginal rights
  • Indigenous law
  • Aboriginal-Crown Relations

If you are looking for examples of the application of Indigenous Law and procedure in a contemporary context, then here is a great case for you, “In the matter of R v. Joseph Thomas and R v. Christopher Brown and Esquimalt and Ditidaht Nations

The case started in BC Provincial Court, involving two men who were charged with hunting/poaching in violation of the BC Wildlife Act.  I first heard about the case in a newspaper report, and was completely taken with it!

This case has been positively hope-inducing in me (a less than common feeling for one who spends much of her time teaching Canadian Criminal Law).  Below is a copy of the ILRU Case Note, followed by a few thoughts on ways this case might be used in a variety of law school contexts/courses.

ILRU Case Note: In the matter of R v. Joseph Thomas and R v. Christopher Brown and Esquimalt and Ditidaht Nations

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Map of BC First Nations

Context: Two Coast Salish men from the urban Esquimalt nation (in Victoria) were charged by conservation officers with two counts of poaching under the BC Wildlife Act. The two men initially asserted what they believed was a treaty right to hunt on unoccupied Crown land. However, the Ditidaht [1] (in whose historic territory the Esquimalt men had been hunting), were concerned about over-hunting of Roosevelt Elk.  They were in favour of conservation, and the conviction of poachers.

As things unfolded, it also became clear that the two Esquimalt hunters had not sought permission from the Ditidaht to hunt in their territory, nor had they complied with Indigenous conventions in the manner of their hunt, breaching both Ditidaht and Esquimalt legal principles, and bringing shame on the communities.

Application: The case was heard in First Nations Court by Justice Marion Buller (now Chief Commissioner for the MMIWG Inquiry). With the consent of the Crown, the accused and the two concerned Nations, the Court made space for the Esquimalt and Ditidaht communities to work together, using their respective laws and procedures, to resolve the case.

The intial hearing, drawing on Coast Salish procedures for dispute resolution, involved a larger number of interested parties, including Elders, Chiefs, Counsellors and other members of the Esquimalt, Cowichan and Ditidaht nations. The communities spoke to not only current treaty and provincial law, but also to older laws between the two nations respecting hunting. They agreed that seeking permission from the other community was a fundamental law that continued to have force. The hunters accepted responsibility for their conduct, and agreed to accept the resolution that would be determined by the nations.

A number of procedural steps were necessary, as the violation of law here imposed responsibilities on not only the two hunters, but the Esquimalt community as a whole. As a result, the hunters were required to visit each household in Esquimalt to tell them what they had done, and to invite them to a meeting, which would be held in the Esquimalt Long House and involving people from both nations. At this meeting (180 people in attendance), representatives of the Ditidaht were wrapped in blankets and presented with gifts as a way of acknowledging the harm that was done, and committing to the re-establishment of good relations. The hunters are to refrain from hunting for a year, and are required to do work for the community, doing maintenance and service at the longhouse at least twice a week for the year. This was to function not as punishment, but as an opportunity to be a model for youth, and to demonstrate the continuing obligations and operation of Coast Salish and Ditidaht law.

Significance: This case is a powerful and hopeful example of the application of Indigenous law in ways that provide a meaningful resolution to a very real problem. A second important dimension of this case is that it is an example of intersocietal law. That is, this is not only a conflict over hunting, but a conflict between communities from two distinct legal orders. It shows the power of Indigenous law and procedure to create the conditions for people from different legal traditions to come together to work through a shared problem in ways which link in appropriate decision-makers, who are positioned to better identify the challenges, and construct meaningful solutions. Note that the procedures also supported an increase in legal literacy (increased familiarity in each community with the legal terrain of the other), and the building of community connections.

Even more powerfully, in the process of resolving this specific hunting/poaching claim, the two communities were able to identify a bigger systemic challenge:  given the pattern of land development in this territory, the Esquimalt do not have access to many areas in which to exercise hunting rights. There is thus a pressure to hunt in the other territory with potential to impact on wildlife.

The result of the case has thus also been that the two First Nations have begun discussions aimed at developing protocols to govern hunting in Ditidaht territory by Esquimalt members, to support the ability of people in urban settings to have access to hunting.

In short, what could have otherwise been a conventional hunting sentencing case instead has produced an outcome which:

  1. Attends to questions of human safety (drawing on indigenous laws and protocols governing ways, times, and places in which hunting can happen),
  2. Attends to questions of conservation (drawing on Indigenous laws related to stewardship of land and animals),
  3. Attends to questions of inter-community conflict, drawing on the point of contact as an occasion to work together to collectively address a shared problem.

[1] The Ditidaht and the Pacheenaht people speak closely-related dialects of a language called Nitinaht or “Ditidaht.” Ditidaht, is one of three closely-related languages (Nitinaht, Makah, and Westcoast or Nuu-chah-nulh) forming the South Wakashan sub-group of the Wakashan Language Family. The Nitinaht and Makah languages are much more closely related to each other than they are to Nuu-chah-nulh. From http://www.ditidaht.ca/.

ADDITIONAL RESOURCES:

  • one could supplement this case through reference to two ILRU reports:  Coast Salish Legal Traditions Report; ILRU, Coast Salish Civil Procedure Report
  • There are some helpful video talks available on line on Coast Salish Legal Traditions & the Canadian State by Professor Sarah Morales.

THOUGHTS ON USING THIS CASE IN THE LAW SCHOOL CONTEXT

  • This case is great for teaching “Sentencing”.   It was really wonderful to be able to give students some examples of sentencing cases that did not induce despair.  It was also useful for helping them see that some cases may involve MORE work for offenders, rather than less.  Certainly, the students would agree that it would not be ‘easy’ to have to go door to door in the community to let people know about a wrong you had done.  The case also made visible the ways that many people in a community could be brought together in order to produce a meaningfully better outcome.
  • This case is great for troubling the divide between Criminal/Provincial offences, particularly in the context of Indigenous Laws.  To call a hunting case ‘provincial’ is in many ways to fundamentally misconstrue the depth of relationships between indigenous peoples and animals.  In many contexts, it is perhaps most appropriate to understand the relations between many Indigenous peoples and animals through the language of treaty (this is visible in Westcoast Nation stories about the Salmon People, or in Plains stories like The Buffalo Child).  This is visible in this hunting case, where Esquimalt and Ditidaht parties agreed that, in the past, a second violation of laws around hunting could have resulted in the punishment of death.  This indicates the importance of Indigenous laws pertaining to human/animal relations.  Michael Ashe’s 1989 article on asche-wildlife-cpp-1989 might be a useful resource for supplementing such a discussion.
  • This case is great for exploring Conflict Resolution in the context of International Law.   On the one hand, this case could be treated as simply as instance of alternative measures within Criminal Law.  However, there are powerful reasons to see this as rather an example of conflict at the intersection of THREE legal orders (BC/Canadian; Esquimalt; Ditidaht).  What we see in some ways is the visionary willingness of the BC Court System to step to the side, to make space for the other two first nations to draw on their own legal procedures and institutions to solve a challenge that touched deeply on legal obligations and responsibilities in those nations.  The eventual solution is one that accords with the needs of all three legal orders.  From my perspective as a reader, it seemed that the Esquimalt and Ditidaht legal orders contained powerful problem solving resources, ones that provided a very successful resolution, one that is hard to imagine within the more conventional boundaries of the BC Wildlife Act. The case provides a great model for dispute resolution between conflicting legal orders.

 

 

 

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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