Loving, Working, and Living on Stolen Land: People of Colour, Settler Colonialism & White Supremacy

This past August, I participated in the Blanket Exercise organized by the Faculty of Law University of Windsor with our incoming law students. The narrative exercise, designed by KAIROS (though slightly modified by Windsor Law), is intended to educate participants of the brutal genocide of Indigenous Peoples of Turtle Island. It illustrates how they were treated by European settlers. The exercise more importantly demonstrates the ensuing effects of the colonial policies and practices of the Canadian white supremacist settler state on Indigenous Peoples.

Windsor Law has included the Blanket Exercise for the past two years as part of our ongoing efforts to implement the Truth and Reconciliation Commission’s (TRC) Calls to Action. In volunteering to help with the exercise, I indicated that I would be happy to take on any role the organizers needed. Subsequently, I was designated the role of a European settler.

At first, I was dismayed. I am a queer Person of Colour, a Tamil refugee to Canada from the Northern Province of Sri Lanka. Now I would have to pretend to be a white European settler?

My apprehension with playing the role of the European settler opens a window into the role of People of Colour not only in the legal profession but in the ongoing settler colonial project. I am a refugee settler of colour living, loving, and working on the traditional territories of the Three Fires Confederacy. I also own a house and land in Windsor, Ontario. The land is Anishinaabe land.

As we move forward in implementing the TRC’s Calls to Action I find myself engaged in deeply complicated conversations. These conversations are animated by what Professor Jeffery Hewitt (a colleague at the Law School) has framed as the anti-violence work of decolonizing our disciplines, our institutions, our private spaces, and our lives. Communities of colour are also responding to the Calls to Action in our own ways. I imagine there are two strands of thought within the communities of colour about the recent attempts to decolonize and indigenize the academy (and other spaces). Though likely many more that I still have to engage with and learn about.

The first strand is hopeful and helpful: we are finally addressing the white supremacy that many People of Colour and our community members have had, and continue, to face. It is great that we are focusing on the First Peoples of this land, their experiences with the criminal justice system, the prison industrial complex, and how the legal system has so abysmally failed Indigenous women, are a few examples. This hopeful and helpful framing belies an uncomfortable truth articulated by Professors Bonita Lawrence and Enakshi Dua in their 2005 essay “Decolonizing Antiracism” on the erasure of Indigenous Peoples from antiracist practices, theories, and analysis. They argue that People of Colour have not taken seriously the impact of colonization on Indigenous Peoples and this has resulted in a bifurcated set of anti-racist practices. Building from this framing, we can comfortably note that People of Colour, in various gradients and iterations, continue to benefit from the violence of colonization of Indigenous Peoples and their respective territories. People of Colour are full-fledged participants in the systems of oppression that continue the process of settling on Indigenous lands and the genocide of Indigenous Peoples (by purchasing Indigenous lands, for example). This strand of thought then is about dismantling white supremacy in solidarity with Indigenous Peoples.

The second strand is even more complex, if not nefarious: How can we argue that People of Colour are complicit in the ongoing process of settlement? Are People of Colour not marginalized too? Do People of Colour and their marginalization not need the same kind of attention that is being garnered towards Indigenous Peoples on this land? Of course, the very framing of People of Colour as a discrete and homogeneous category is contested. Descendants of former enslaved peoples in what is now Canada do not bear the same kind of complicity as ‘new arrivants’ and they do not benefit in the same ways either (see Eve Tuck, Allison Guess and Hannah Sultan).

From my own perspective, I was a refugee that fled a war-torn country in the late 1980s with my mother. We had to leave our village of Vilan near Jaffna, Sri Lanka because the Tamil Tigers had set up a camp next door (quite literally). We were afraid of the Sri Lankan government helicopters and the bullets and bombs they dropped on us. So, we fled to Colombo first, and then to Canada and claimed asylum (via various other safe ‘third countries’) in search of a safer home. Of course, the role of Western countries and their allies in the bloody war in Sri Lanka should not be forgotten. The colonization of Ceylon (what is now known as Sri Lanka) began with the Portuguese, the Dutch, and then the British. In my scholarship, I have argued that this conflict in large part erupted as a result of the policies of former colonial masters. Moreover, the bombs and bullets used in the Sri Lankan conflict were produced by the military industries of the former colonial powers, who profited.

The questions I have raised are tremendously difficult for me to unpack and I confess that I do not have a complete answer. As I continue to learn about the Anishinaabe and the Three Fires Confederacy in whose territory I am now a guest, I cannot ignore the location of our new home that I recently purchased with my partner – as though broadcasting to me every day to remember. Our cross road is Mohawk Street. We park our car on Mohawk street. I see the road sign each morning as I leave for work (the University of Windsor is also located on Anishinaabe land). When I bike to work, I take Seneca street. My office is in the Ron Ianni Law Building (named after a former Windsor Law Dean), overlooking both the United States (more colonized land), and Assumption Church, which is just in front of the law school. The church’s history is complicated at best and is tied to a land claim (which encompasses vast parts of the area) by Walpole First Nation.

Irrespective of how I got to Windsor, Ontario and my various struggles to reach this point, I cannot ignore the fact that I live, work, and love on stolen land. This is a difficult fact to digest for People of Colour. Shaista Patel has eloquently captured this sentiment when she writes: “While we may share some histories, it is critical for us Muslims and other non-indigenous peoples here to not fall into the trap of equating the struggles of Muslims with that of Indigenous Peoples in white settler colonies, where Indigenous Peoples who have been living here since time immemorial have now been outnumbered by whites through illegal land grab, dispossession, and outright genocide”.

White supremacy on Turtle Island is built on what the TRC has coined the twin justification for the colonial and imperial violence: “In short, it was contended that people were being colonized for their own benefit, either in this world or the next”. Through violence and forceful removal of Indigenous Peoples, European settlers built the tapestry of infrastructure that would become Canada and the United States. At times, the process of settling was based on the labour of enslaved peoples and indentured workers from various parts of the world.

Even though I have thought about colonization and settler colonialism in various ways, it is easy to succumb to the divide and rule policies imbedded within our societies built upon white supremacy. The European settlers built this vast infrastructure for one purpose, and one purpose alone: to eliminate Indigenous Peoples and replace them with white settlers. The tapestry that has been carefully crafted then encompasses various imbedded codes of performance. These include the need for recognition of diverse forms of oppression through legal doctrine like antidiscrimination laws.

Western law works, so I have been taught, to create equality between and amongst various peoples. But the demand for equality is left up to the different marginalized groups to articulate. Human rights violations are then to be decided by decision makers invested in white supremacy. Tribunals and courts are set up by the white supremacist settler state with decisions makers devoted to maintaining white supremacy. Indigenous scholars have described this phenomenon as the politics of recognition. Inevitably, this has caused a competition between different marginalized communities, once vividly captured by Professor Patricia Williams as “oppression Olympics”.

My unease with playing the part of a white European settler setting up white supremacist infrastructure in the Blanket Exercise then goes to the root of the second strand of thought (that I referenced at the start). It is a reaction to the recent attempts to implement the Calls to Action of the TRC. The uneasiness is tied to what Devon W. Carbado and Mitu Gulati have coined as “acting white”. Those from the margins seeking recognition will inherently engage in oppression Olympics. It is a competition for resources and space within a market of adjudication. The market built on white supremacist values decides whose discrimination matters more. Oppression Olympics ignores and obscures the historical context by which white supremacy became a reality. Moreover, oppression Olympics hides the fact that marginalized groups are in fact seeking redress from those that continue to oppress and discriminate. This is learned behaviour, dished out via our educational institutions (including law schools).

In a recent talk to researchers at the University of Windsor on decolonizing research methodologies, Professor Hewitt challenged participants to reflect on our own complicity in the ongoing process of colonization. He suggested that we engage in greater self-reflection and pay closer attention to how our own systems and behaviours deeply impact and contribute to the ongoing colonization of Indigenous Peoples.

By engaging in oppression Olympics, People of Colour are helping to maintain white supremacist structures. These structures continue to oppress Indigenous People and People of Colour. We can however, as People of Colour committed to dismantling white supremacist practices, work with Indigenous Peoples on our respective campuses, and in our respective spaces and places. We can foreground Indigenous Peoples’ struggles as a means to achieve our own emancipation. By participating in the Blanket Exercise, building thick relationships, learning more about the lands we inhabit, and supporting the TRC Calls to Action through our words and our actions, we can work alongside Indigenous Peoples in dismantling white supremacist practices for everyone’s benefit, “either in this world or the next”.

Sujith Xavier, Faculty of Law University of Windsor (I am grateful to Amar Bhatia, Fathima Cader, Tyler Dunham, Jeffrey Hewitt and Adrian Smith for their comments)

Blanket Exercise – Part 2

• Blanket Exercise – Part 1
• Blanket Exercise – Part 3

Encounter #3 – Material Culture and Rebellion in Whitehorse

The Healing Totem in Whitehorse

My next encounter with the Blanket Exercise happened in Whitehorse, at a day long applied workshop on the TRC and the Calls to Action, being jointly sponsored by KAIROS, the Yukon Public Service Commission, the Council of Yukon First Nations and the Yukon Human Rights Commission.   The first half of the workshop was dedicated to the Blanket Exercise.

From the outset, there were some visible differences from the context of the exercise I had done in Montreal.  It was not just numbers (Montreal had involved a dozen or so people, and there were three times that many in Whitehorse). In Montreal, the organizers had no idea how many people would show up, and so there was a certain improvisational necessity involved.  In Whitehorse, people registered in advance, and so the organizers had a good sense of not only how many, but of which people would be there.

This time, the exercise was run by facilitators who clearly had significant experience with running the exercise, who knew how many people would be there, and who had a sense of comfort with the performative dimensions of the script. One of these dimensions involved the use of “material culture”:  the woman running this exercise had brought a large selection of goods, and she had placed them all over the blankets — moccasins, scarves, beads, wooden boxes, carvings, children’s knit mittens, animal pelts, and containers of medicine. When the exercise began and participants were invited to take our place on the blankets, we were also invited to pick up the items on the blankets and carry these objects with us.  We were told we could use them to trade with others.

Material culture embedded in the exercise

I found that this time, making introductory contact with others was much easier.  I wasn’t told simply to greet others; I had a concrete object in my hands, giving me an easy topic of conversation in case of awkwardness. It also meant I could take my attention off of the others on the blanket, and give attention to the thing I was holding.  It made me feel a bit less awkward.  Additionally, there was an instant bond between me and the object I first picked up — a pair of hand-made gloves that I knew to have been made by the mother of a student in our law school class. The object gave me something tactile, visual and sustainable. The ability to focus my attention on the object was less stressful to me than having to focus my attention of people’s faces.

As this was my second time with the exercise, I was also more curious about what people were thinking, so there was an impetus for me to go engage and exchange with others in a more exploratory way.   As I did so, I realized that there was something more going on with the use of the objects. Early on in the exercise I recognized that not only did I have an object that I really loved, but also that it was “worth” more than many of the other objects people were carrying. Nevertheless I found myself seeking out people with other items and hoping to trade with them, which would mean surrendering my (valuable) object for their (less valuable) item. In part, I knew that none of these goods were really mine and so the question of value didn’t matter. At the same time, having a more valuable object gave me an inroad to making a connection with someone else on the blanket. I quickly realized that though my object may have been worth more than theirs, the exchange of my more valuable goods with what they had available was a way for me to open a conversation with that person, a way of building a relationship for the future.

Gaining that insight through this additional element of the exercise opened a spot for me to begin re-thinking my assumptions about trade. I recalled the ways in which people talk about Indigenous peoples as having made a bad trade, and realized that colonizers may have been really missing the point. The reasons for the trade may have been something very different than an assessment of equivalent values of the object.  The objects themselves might be part of the work of building longterm relations and commitments between people. For me, that piece of insight, which happened as part of the trading element of the exercise, before anything negative happened, was a piece of great value for my own understanding.

Throughout the entire exercise, we carried our goods with us. However, the goods of the people on the blanket who got small pox or who were killed off, were left behind, abandoned and alone on what become unoccupied blankets. In many cases these blankets were isolated from the other blankets and as such there was no way for those of us who remained to get them, for we couldn’t move to that space.  The loss of objects, and their ‘capture’ by the settlers, was very visible in this part of the exercise.

While participants in my McGill experiences were mainly settlers, in Whitehorse I had the opportunity to do the exercise where the majority of participants were Indigenous people.  There were also a significant number of participants (both Indigenous and settler) who were doing the exercise for the third or fourth time.   And so, there were some striking differences in how this experience unfolded.

As part of the exercise, corners of blankets are folded by the colonizers, reducing the “footprint” of the blanket. In Whitehorse I had the chance to witness another person on a blanket, enacting very strong moments of rebellion. The colonizer/facilitator would push the blankets to reduce their space, but when the facilitator turned their back, the person simply ‘undid’ the fold, and returned their blanket to their former space.  I was taken aback, as it had not occurred to me that I could resist.  I also noticed one participant who kept their feet pinned to the corners of their blanket, with a very aggressive and hostile stance, trying to ‘face-down’ the colonizer each time they approached.  At first, it was disquieting to witness this stance — to see the anger and the determination in their refusal to move off of the blanket when instructed. It was in that moment that I realized, if that person was resisting, I, too, could resist. And so my own resistance was inspired and born, my own rebellion was supported.

From that time forward, I too, tried to keep as much of my body as possible on the blanket to prevent it from being pushed in. Shortly after this, one of the colonizers made us sit on the ground. When we were made to sit on the ground I had a strong felt experience of constraint. I am aging and my body is never as limber as I imagine it to be. So sitting on the floor, trying to occupy my space, was difficult when I couldn’t easily move around on the blanket. I experienced discomfort in my body as I tryied to maintain positions that were quite unnatural in order to continue to occupy space, in order to protect it from colonizers. Further, I noticed that each time that I thought I had re-stretched my blanket out, as soon as I gave my attention to another part of the floor for a moment, I would turn again to find that the settler had come around and pushed the blanket back once more, erasing the gains that I had worked so hard to maintain in the first place. I became aware that in order to protect my space, I had to keep my eyes on it at all times, taking my focus off of anything else that might be happening in the world around me.

At one point during my resistance, a colonizer finally came and stood right beside me. I was being actively surveyed. The person’s proximity made it impossible for me to increase my resistance, constantly pushing my blanket into smaller and smaller shapes. There was something nearly claustrophobic about this encounter of restraint and constraint that left me feeling anxiety in my body.  I was not new to the history of legal constraint, but I had not expected to feel it so viscerally in my body.  What was surprising to me was physically feeling an overlap between my intellectual knowledge and my body, being enacted through this pretend exercise of restraint.

As an aside, this version of the exercise also made use of powerpoint.  A screen was set up to one side of the room, and it projected sometimes the text of the scrolls that individuals were reading, and sometimes images which supported those scrolls. The powerpoint was an interesting addition, and I found myself wondering at the work it was doing.  The images sometimes added a visceral punch to the words we were hearing.  It also provided another site of focus when the affective parts of the exercise were mounting.  However, it also was a site of distraction that sometimes pulled me out of the embodied dimensions of the experience and into something that echoed with my classroom experiences (of greater distance).  I was left thinking about both the additions and detractions of having that additional visual/textual field.

I found the debrief session at the end of the exercise to be a site of significant learning.  During the circle, one of the Indigenous participants shared that they had participated in this exercise before and had really hated it. They had started this time with a similar feeling. They had been wiped out with small pox right in the first round and thus been denied the opportunity to resist or rebel or to push back against the exercise and had been moved back to the side to sit in a chair and observe.  There was a moment however, when they thought about the ways the ancestors are said to be still present. This person began to consider how they might participate in the exercise even though they were dead. Though they were in the dead area of the circle, this person began calling out in a low whisper to Indigenous people in their quarter, messages of support and resistance, encouraging them to be strong, to stand in solidarity, to hold the line, to push back.

Leaving Whitehorse, and heading for home

It was also moving to listen to other other Indigenous participants who had remained on the blankets til the end, and to hear them speak of how powerful it had been to them to hear these words of support, love, and resistance being spoke from ‘the past/the ancestors’.  It pushed me to think about my own experiences of the relationship between the past and the present , and of the role of memory in evoking the strengths of those who have gone before, and how such memories can strengthen those who come after.

I felt very grateful to have been in circle with both Indigenous and non-Indigenous participants, learning from each of them about insights (whether comforting or painful) that had come up through this moment of shared experience.   I was also struck by the realization that the Exercise need not be understood as as ‘one-time’ event; there was much that could be learned through multiple iterations.  The flight back to Victoria had my mind circling around questions of material culture and rebellion.

continue to Blanket Exercise – Part 3

Blanket Exercise – Part 3

• Blanket Exercise – Part 1
• Blanket Exercise – Part 2

Encounter #4 – Preparing for Action – The UVic Faculty & Staff Experience

A trial run planned for a quiet morning in the Fraser Building

With the knowledge that Hadley Friedland had run it at the University of Alberta for first year students and that it had gone very well, and having done the exercise twice myself, we began discussions within our faculty about the possibility of trying it ourselves.   I began to seriously consider doing it as part of our Legal Process Course the following year.

However, before making the commitment to run this with our first year students, we thought it best for faculty and staff to have the experience ourselves so we might have a better idea of how it might be experienced by the students.  This, we thought, would help us better sketch out what kinds of support we might want to put in place for this exercise.

And thus it was that, on a quiet day after classes had ended for the summer, a  group of twenty faculty and staff gathered together to do a trial run of the exercise.  We chose Our Indigenous colleagues Val Napoleon and Darcy Lindberg to play the roles of the colonizers. While I suppose it is not necessary, there is some value in having one of your Indigenous colleagues play this role.  By ‘cross-casting,’ the person playing the colonizer is able to occcupy that role with some distance, and without as much angst. It also avoids replicating colonial roles in the encounter for Indigenous colleagues (ie don’t put people in the roles they historically might have had).

We didn’t do much in the way of preparation, since we were largely thinking about  questions like ‘long would it run’ and ‘could we do it ourselves’ or ‘did we need experts’? We also were thinking about how to ‘break’ the exercise. That is, we were beta-testing, in the hopes that we could anticipate the hard parts, and be prepared with responses in the event that something unexpected happened (as is so often the case in life).

Unbeknownst to the rest of us, our two associate deans (Gillian Calder and Freya Kodar) had determined that they would take on the role of Indigenous resisters, and see just how far they could push the facilitators (imagining a scenario where students might make such a choice).  As the exercise unfolded, they engaged in increasingly visible acts of resistance, drawing on accounts I had given them of my earlier experience in Whitehorse and pushing it even further. At the height of their most rebellious moments, Val, who was playing the role colonizer, finally went off script, simply went up to the two of them and told them they were dead and moved them off of the blankets and to the side. So.  That took care of that! (or at least, let us see what ways we might have to creatively respond to resistance without paralysis, while still staying within the spirit of the exercise).

After this, the rest of  exercise proceeded in line with the script.  That unexpected resistance in role-playing by Gillian and Freya certainly gave us more to talk about in our debrief circle at the end.  For all of us, it opened space for a discussion of the more brutal (and even ‘illegal’) forms of state action and repression.  The debrief was also a great way for us all to learn about our shared history together (important at this juncture in time), and for staff and faculty to be sharing some of our fears, hopes and insights about working together with the students.  It certainly generated conversation that was open and relationship enhancing.

In doing this very small scale trial run experience, there were many small logistics details that also became visible to us.  We could better see the challenges of being able to hear individual speakers (neither Val nor Darcy had booming public speaking voices) and a better appreciation of how many blankets we would actually need to cover the projected space. The most important part of this exercise was helping faculty to become comfortable with the format and content of the exercise so that we would be positioned to anticipate places where the exercise might be challenging for some students and to think about steps we could take in advance to ensure a supportive environment for the experience.

Having had a number of discussions about the exercise, about its strengths and limits, and about the ways we might work with it (or that it might work on us), we prepared to run the event with our first year students.

Encounter #5 – Running the Exercise at UVic as part of Law 106: The Legal Process

The planning for the event required us to spend time really engaging with the substantive guts of “trauma-informed practice”, and more mundane but no less crucial guts of the logistics of organizing an event for the full first year class.

a.  Mandatory or Voluntary?

After our trial run, we debated whether or not to make attendance mandatory. We were conscious of the richness of conversation around voluntary vs. mandatory learning, and there were compelling arguments on both sides.  It seemed obvious that there would be people (whether students, faculty or staff) for whom the exercise might be quite challenging or upsetting.  But on the other hand, there are many elements of the first year curriculum that are difficult for Indigenous and newcomer students alike (this is self-evident to Criminal Law profs!).  Many courses contain elements can be very difficult for our students, but they remain mandatory nonetheless.  We also worried about signalling that our Indigenous students were too fragile for the exercise, or already knew everything that would be covered, or that the difficulty of a topic should be dealt with through distancing. In addition, the substantive content in the Blanket Exercise was in support of the work that was planned by the professors teaching the Constitutional Law and Property Law classes. A further issue was that the exercise was being done as part of the Legal Process course, which is a course that has always been evaluated in part through mandatory attendance.  Would we make an exception for an exercise focused on the place of law in colonial history? A final consideration was that Call to Action #28 of the Truth and Reconciliation Commission’s Final Report had called for mandatory education about residential school.

Even though we were leaning in the direction of mandatory attendance, we still struggled: we could imagine there might be good reasons to allow some people with particularly complicated histories to have the opportunity to opt out.  And we did discuss opening the possibility that there might be some students who could fill the mandatory requirement in a different way.  But given that we had a class of students were were new to us and each other, we did not have a good mechanism for identifying people who might find it difficult.  If we were to send out specific emails, we would be operating on guess-work, and perhaps unfounded assumptions.

After much discussion, we decided that attendance would be expected.  Our goal was to emphasize this event as part of the regular curriculum, and something that the entire school was invested in.  Part of emphasizing to the students the importance of the activity was signaled through having nearly all of our Legal Process Professors (that is, all professors teaching first year courses) participate in the Blanket Exercise. We had our  Dean (Jeremy Webber) be one of the participants, taking on one of the primary narrator roles (reading all of the “Legal Issues” slides).

b. Putting Supports in Place

The UVic Amicus Team: Christina, Tim, Yvonne and Darcy

Once we decided the exercise would be mandatory, we worked to put in place a rich layer of supports.  We involved our full Amicus Team, including our embedded counsellor. We also had active involvement from the Indigenous Law Students Association, and the Law Students Society.

I would really emphasize here the value of including the Indigenous students in the planning and operationalization of the Exercise.  Upper year Indigenous students played key roles (both speaking parts, and carrying microphones to those reading scrolls) in the exercise, which meant that there were many levels of mentoring and engagement that extended beyond the exercise.

photo by Maryse Bernard

We also coordinated with the   the First People’s House at UVic, which has elders in residence, and the space to do smudging and other ceremony that might be helpful to Indigenous students who might feel the impact more deeply than anticipated.

As an aside, we highly recommend building close relationships between the law school and similar Indigenous Institutions you have at your own universities:   so many times, our Indigenous students have been supported by the First Peoples house where are own capacities have been either underdeveloped or absent. So too, they have provided us in the law school (faculty and staff) with ideas, suggestions, and support as we have worked to learn more about ways we can better do the work of Truth, Reconciliation and Justice in Law.

c. The Logistical Challenges

On the logistics front, we turned our attention to the questions of both ‘when’ and ‘where’.  With respect to timing, we decided against holding it in the first few weeks of classes when students are still getting to know each other and are experiencing a level of vulnerability that is common to people at the start of a new program.  At the same time, we didn’t want to wait too long, since we wanted the exercise to provide a common foundation for the work students would start doing in their constitutional and property law classes. So we choose a day 6 or 7 weeks into the term and re-designated all first year  morning classes that day as classes in the Legal Process Course.  This would enable all 120 students in the program to attend the exercise.  Though the actual exercise would be complete by lunch time, we also cancelled all first-year afternoon classes, so the students would have down-time after the event: time to process their own learning at their own speed.

With timing settled, we had to tackle basic logistic questions around the ‘where’.  We needed to find a room that would enable us to have 125 people first walking around in an open space, and then later sitting on chairs in circles of roughly 25 people.   The Law School itself did not have a room with that capacity so we rented a space in the Student Union Building on campus.  We organized the space in advance (chairs, blankets, powerpoint, audio system, tables on the sides, etc), and set up stationary microphones and mobile microphones to ensure participant speakers could be heard when it was time to read their scrolls.

We also decided to provide food: oranges and apples, Halloween candy, bottles of water and seaweed snacks (this is the West Coast, after all!). The goal was both to enact the principle of feeding the body while feeding the mind, but also to provide a way for students to move themselves out of one space and into another in a natural way.

As with the Whitehorse example, we included objects placed on the floor so that people could pick them up, carry them, and have things to trade or touch. In feedback, after the event, some student spoke specifically to the value of these objects, saying that they found it helpful, when parts of the exercise were difficult, to have something in their hands to provide a focus point for them.

d. Closing the Circle

The Blanket Exercise closes with a debriefing session done using a circle.   While the exercise had proceeded with the full cohort on the blankets, we now divided them back into their small sections, so that the circle/debrief was conducted within a small group of 20-25 people who had already developed close relations with each other in the context of their first two weeks intensive course.  In this context, the students were coming back to this specific small group format after 4 weeks in the standard classes.  For the debrief, rather than having it be ‘open’, there were some guiding questions.  Each person in the circle was invited to share two things: one thing they learned from the event, and one thing they would like to learn more about.  In terms of the structure of the circle, we have found that it is optimal to have two faciliators there, sitting beside each other, so that the first person ‘opens’ the circle (is the first to speak), and the other ‘closes’ the circle.  This gives a bit more control to the facilitators, in terms of the ability to offer some words in their final comments that might address anything that came up in the circle that was challenging or difficult.

Finally, students were asked to do a short reflection piece (a few lines to a few paragraphs) the day after the event on their Coursespace Blog.  In part, this was to remain consistent with the structure of the Legal Process Course, in which there was a blog requirement at the end of each day of the course.  But we also hoped that this requirement would provide students with an opportunity to further process their own response to the event, and indeed, they were invited to give critical commentary if they so desired.  From my perspective as the Director of the Legal Process course, the student blogs were insightful, inspiring and hopeful.  Some of them were also difficult.  Where students students had found the exercise hard, they had no problem telling us so.  And they were also incredibly generous in sharing some ideas about additional/different things we might try the next time we ran the exercise.

Circling Back After the Fact – Some Final Thoughts

While the set-up for 120 people is a lot of work, once the exercise begins, it does its own work. Part of its power is the content. Part of the work is the embodiment question. These kinds of pedagogies are certainly non-traditional within the law school context, but they do open up space for a quite different conversation about history and the way we place ourselves in it. I imagine that over time, it might be possible to continue to adapt the script in response to the experiences of colonization in different provinces, and to contemporary events.  The more this history becomes part of our common heritage, the more room there will be to add additional layers of nuance to the event.

At UVic we continue to discuss the importance of the exercise and whether participation by first year students should be mandatory. The exercise can be valuable from a pedagogical perspective because it gives students a common lived experience and language to build on throughout their program. We are conscious that the exercise must be trauma informed.  The first time we ran the blanket exercise we tried to do this through different methods by providing: on-site support; debrief and processing opportunities (circle and writing); and an option to opt out of the exercise with alternate “assignment” where potential trauma outweighed the benefits of participating in a group exercise.

In the end the vast majority of the students were there, and there was follow-up with those who had been unable to attend for any number of the usual reasons (sickness, family emergencies, surgery).  For the most part, I would say that the successes of the exercise outweighed the difficulties.  This is not to say there weren’t difficulties.   And in the aftermath, students did come to us with important questions about things that had been less than successful, and about strategies we might employ the next time around.

The question of ‘mandatory vs. voluntary’ continues to be a live one.  It is not unrelated to a second question, which is, ‘how much information do students need in advance.’   Though we told the students about the exercise in general, some were unprepared for the emotional impact.  This is a challenge since saying “this exercise engages with questions of residential school” may not be adequate preparation for students who have not had much prior education.  Our way of preparing the students may have been inadequate for some students with hard family histories with residential school, and who may feel the impact of the exercise in more complicated ways.   The students were not necessarily saying that they should be excused from the exercise, but rather that a thicker description might have enabled them to go into the exercise better equipped for the work that it might do.

We had sent a note to the students telling them it was mandatory, but also indicating that if they had concerns, they could speak with either me or the associate dean.  Our thinking was that this was a way for students with concerns to open a conversation (which would allow us to work with them to find an alternative).  But some students certainly did not see this as enough of an opening, and felt themselves to be required to be there in ways that were not helpful.  That is, with different information available (including a more explicit note that the exercise could be met in other ways), they may have chosen to do the exercise, but with a greater sense of freedom about that choice.

The conversations with the students after the fact were helpful in terms of helping us think more broadly about all the different ways to begin the conversation about the exercise (for example, that it might be helpful to include the students in a discussion about the values of mandatory and voluntary attendance).  We certainly were reminded that Indigenous students have long had to carry particularly heavy roles in law schools across Canada, and that it is not a bad idea to involve them earlier and more actively in the conversations about how to do the set up for exercises such as these.  For example, some Indigenous students nicely articulated for us the position that they KNEW the exercise was going to bear heavily on them, but that they also felt it important that they were visible there to their non-indigenous classmates.  What they sought was not necessarily an exemption, but a role in the decision-making that acknowledged the ways their participation was both important and signficant.

In short, the Blanket Exericse raises lots of hard questions. We do not have all the answers, but this should not stop us from participating in or running the exercise. Discomfort is an important part of the embodiment of what is being experienced and learned.  It matters that we work in collaborative ways that acknowledge that embodiment plays itself out differently for different people.  The use of embodied pedagogy in the exercise – physical, emotional and intellectual discomfort, role playing, the physical representation of territory, the movement through territory, the loss of territory, etc – leaves the experience planted in the brain and the body.

LINKS TO EXPLORE

Click here for a link to the KAIROS website, which has more information on how you might take up the exercise in your own school, community, or institution.

Here below for thinks to reports on people using the blanket exercise in other Canadian Law Schools:

• “First Year Law Students Participate in KAIROS Blanket Exercise” https://www.ualberta.ca/law/news/main-news/2016/september/kairos-blanket-exercise
• Ben Freeland, “Orientation concludes with impactful exercise on Indigenous-Canadian history” https://www.ualberta.ca/law/news/main-news/2017/september/blanket-exerciseSchools
• Kali Larsen, “An Afternoon on Turtle Island”  http://juris-diction.ca/an-afternoon-on-turtle-island/ 
• Rachael Kelly, “Blanket Exercises: Increasing awareness of Aboriginal history at the Schulich School of Law” https://www.dal.ca/faculty/law/news-events/news/2016/10/05/blanket_exercises_at_the_schulich_school_of_law__increasing_awareness_of_aboriginal_history_in_canada.html 
• Youtube video of the Blanket Exercise at U of T – https://www.youtube.com/watch?v=81-EeMg47Jo&feature=youtu.be

Let’s not colonize cultural competency

For the past few months, our “Looking Out For Each Other” research team has been conducting community consultations with a view to establishing a helpline for families and friends of Indigenous folk who go missing in Eastern Canada. In the course of these consultations, something has come up a number of times that seemed worth sharing among educators, viz. a concern by Indigenous businesses and not-for-profits that academics are getting in on the work of cultural competency training. Of course it is good that many faculties and departments are working towards developing cultural competencies in their students. And it’s great that some faculty are mobilizing that knowledge beyond campus. Apparently though, these efforts have sometimes resulted in academics using their privileged position as salaried workers to undercut the bids of Indigenous consultants who have been doing this work, in many cases for decades. So if your institution, faculty or department is developing curriculum and you are thinking of offering workshops to organizations, institutions or government departments, you may want to make sure that you are not replicating and/or competing with services that an Indigenous business or not-for-profit is offering in your area. One easy way to do this is to reach out to the band office of your local First Nation community, your Native Council and Friendship Centre for information about existing service offerings.

Art as Intervention in a Time of Reconciliation [by Tasha Henry]

[Ed. note]  The following post is a report by educator Tasha Henry, discussing a recent partnership between the Art Gallery of Victoria, and students in three schools.   The work here, which was done with Grade 3 and 4 students, is a very interesting model of the kind of work one might consider when thinking about Art as intervention in the TRC Calls to Action (and indeed, art as intervention within a law school context).   We thought folks would find it thought-provoking (and a bit inspiring!) Here, then, is  the post by Tasha [and she has permission from the students and families to use the photos appearing in this post]

 

Taking a place at the table:

Art as Intervention in a Time of Reconciliation

By Tasha Henry

In collaboration with several artists of a recent exhibit at the Greater Victoria Art Gallery, entitled “It’s in the Making”, Selkirk Montessori students, were initiated into the world of art installation with contemporary artists who challenge the notion of art as product. The students met with Nicholas Galanin, Tlingit/Aleut artist and Cedric, Nate and Jim Bomford while they constructed their installations in the gallery. The grade 3-4 students interviewed the artists with questions such as:

• “Why is art installation important?
• When do you know when your art is finished?
• How is art an intervention?”

The students then attempted their own installation work in the gallery mansion as a response to their ongoing work with Canada’s Truth and Reconciliation Commission, “Calls to Action”.

Art installation as social intervention felt like the appropriate vehicle to explore the children’s emerging awareness and questions around the devastating history of Residential Schooling in Canada. As teachers, we are in the unique position to respond to the TRC’s Calls to Action in ways that model sensitive and historically respectful approaches to Canada’s shameful investment in Residential Schooling. Rather than approach this work as a prescriptive curriculum, we approached the concept of reconciliation as a process of responding to the ongoing impacts of colonialism on Indigenous communities. It was important to us that the children’s work around redress be responsive, multi-voiced and open ended.

To prepare for the day of the installation, for months, the children studied and learned from the Lkwungen First Peoples’ history and the traditional territories on which our school stands, known today as the Esquimalt and Songees Nations. The children were honoured to receive teachings by such highly esteemed and beloved artists and elders such as Richard Hunt (Kwakwaka’wakw), Butch Dick (Songhees), Monique Gray Smith (Lakota/Cree), and Ron George, Heredity Chief Tsaskiy (Wet’suwet’en).

They studied the cultural traditions of the Coast Salish First Peoples by attempting artistic forms such as beading, sewing button “blankets” on felt, and by constructing their own cardboard “cedar bentwood boxes”. They expanded their learning to conceptual art by analyzing the work of two contemporary Tlingit artists, Nicholas Galanin and Blake Lepine. The students were also introduced to the history of Residential Schooling through Nicola Campbell and Kim La Fave’s acclaimed children’s books, Shi-Shi-etko and Shin-chi’s Canoe.

The students were then given a white ceramic plate (bought from The Salvation Army) where they created their own free hand drawings using only red and black Sharpie markers. On the day of the installation, the students brought their ceramic white plates with their drawings carefully illustrated through a mix of personal designs and traditionally influenced images.

With the guidance of elder and artist, Butch Dick, the children were taught the importance of ceremony and the symbolism of laying a table in the Songhees tradition. They were asked to place their plates in the dining room area in a spot that meant something to them in relation to their understanding of the history of Residential Schooling in Canada.

With reverent gestures and words, the students spoke to their installation choices. They had been particularly struck by the descriptions of malnourishment from the testimonies of Residential School Survivors. Many of the children hid their plates under the large oak table, or under the chairs to represent the starvation of Indigenous children while at school. As the installation took its living form, the children chose to turn the chairs on their side, and to cluster their plates in the corners of the room to represent the upheaval of home and culture due to mandated schooling for Indigenous children.

Shion: “We put our plate above the fireplace so that people could remember the children that didn’t get to have these plates in Residential School. The fireplace is a symbol of First Nations hope”

James: “I put my plate away from everyone else’s because people were trying to destroy their culture and keep it away from them. Our plate represents the culture that was taken away from the kids.”

Maciah: “We put our plate on a shelf on a smaller table because maybe not all kids got to sit at the table and maybe had to sit on the floor. It was meaningful because we are bringing back the memory of First Nations kids who were forced to go to Residential Schools.”

By inserting their voices through the act of installation the students experienced a powerful social intervention. They were called to speak to their intentions to disturb the establishment of the Greater Victoria Art Gallery, on their own terms, in their own words. As Layla, a grade 3 student said, “When I made the drawing I felt I was learning about the culture and also doing something kind for the children by drawing their designs”. The children realized quickly that their art work was not for them; it was not a product to take home or display on the wall. As Adison said, “I like that some people learned that not everything is for yourself you have to make things for others, as well and learn about other cultures”.

In the collective experience of installing their art work as a social intervention, witnessed by their teachers and Butch Dick, who himself is a Survivor of Residential Schooling, the children experienced the importance of standing up for those who have been silenced. Jamie, a new student from Japan, reflected on the experience with poignant simplicity, “the kids couldn’t see their parents for a long time. So, we honour them.”.

After the children installed their work and spoke to their choices, we circled the installation and read this quote out loud:

“We are thankful for these and all the good things of life. We recognize that they are part of our common heritage and come to us through the efforts of our brothers and sisters the world over. What we desire for ourselves, we wish for all. To this end, may we take our place in the world’s work and the world’s struggle.” (J.S. Woodsworth)

When teaching a response to the Calls to Action, we can only hope that we are able to model what social justice learning looks like within the various institutions that frame social thought. This is not work that can rely on detached lessons within the confines of a classroom. The work of reconciliation must be work with the First Peoples of the land from which we learn, through meaningful, conscious and open ended forms that refrain from a settler agenda, or desired outcome. By precisely not desiring an outcome or a finished product, the children’s temporary installation became a visual testament to the missing and unaccounted for children due to Residential Schooling. On that day, it wasn’t our words that filled the space, it was the sound of children moving with intention, fuelled by a quiet collective heat burning within each of them, to seek retribution for children they had never met. Their innate desire for reparation permeated the space, and moved them to set a place at the table for the Indigenous children who were not permitted their rightful place in Canadian society.

Photo credits:  Tasha Henry

[Ed. Note:] A truncated version of this discussion can be found on the Victoria Art Gallery’s website (http://emagazine.aggv.ca/partner-school-inquiry/)

 

 

Keeping or Destroying IAP Records?: A Case to Watch

The Supreme Court is going to hear the Fontaine case in May 2017.  It deals with the destruction of records and testimony gathered during the Independent Assessment Process of the TRC.

The Coalition for the Preservation of Truth [organized by artist Carey Newman] was just granted Intervener Status in the case.

Carey Newman with The Witness Blanket

 

ILRU (the Indigenous Law Research Unit) is one of the supporters of the Coalition.  We have been thinking, in particular, about the resources in multiple Indigenous Legal Orders across Canada to respond to questions raised by the case about privacy, truth, harm, and the significance of records such as these.

If you have ideas or thoughts, you can get in touch with the organizers through their facebook page.  There is little in the way of turn around time, as the case is to be argued in Ottawa on May 25.  But, for those of us teaching in law, its significance will continue past that date.  The case is going to be very helpful as a teaching resource.

Attached is a copy of the Notice of Motion to a Judge or the Registrar and Affidavit #1 of Carey Newman in support of the application.   Here is the Exhibit A to Carey Newman Affidavit in support of the Affidavit if you want to see the documents supporting the arguments about intergenerational effects.

I am also attaching a link to the gofundme site.  I am always reluctant to share such links in case it makes people feel there is a pressure on them to contribute. So… please do not feel that pressure (or rather, feel free to pass the link along to others who might be happy to feel such pressure!  hahaha).

That being said, for pedagogical reasons, it is worth LOOKING at the video that Carey Newman made for the site.  It is short:  1:45.   Still, in it you can see how Carey [whom you may know as the artist of The Witness Blanket], with his artist eye, sets up the centre of the intervention in visual/auditory form.

That is, look at the video thinking about the mixture of image, text, voice, music, and movement as its own form of  legal argument

https://www.gofundme.com/standfortruth

Reconciliation in the Corporate Commercial Classroom

Inspired by the work of this blog, Dr. Anna Lund and I gathered together a group of corporate and commercial law professors from five different law schools at the CALT annual conference in Calgary last May, to talk about how we include – or how we plan to include – Indigenous content in our courses. The Roundtable was a chance to speak publicly about what we were doing in response to the TRC and to get helpful feedback from the large and engaged CALT audience. After the Roundtable, we sat down to record our ideas and concerns and to summarize the discussion in Calgary, in order to share it with the broader legal academic community. The result was published recently in the Lakehead Law Journal. The classes discussed include Business Associations, Corporate Governance, Secured Transactions,  Personal Property Security Law, Judgment Enforcement, Debtor and Creditor Relations and Pension Law and Policy. We hope our fellow corporate and commercial colleagues find it helpful, and we welcome your further ideas, responses and critiques.

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

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!

•  Here is a link to Justine Hunter’s article, “Traditional Justice”, published in The Globe and Mail, January 8, 2016.
• Here is a copy of the Case Comment/Case Report, summarizing the case, and signed by the Chiefs of the Esquimalt and Ditidaht First Nations.   i-5-sentencing-dec-11-15-signed-chiefs-case-comment (with many thanks to lawyers Steven Kelliher and Declan Redman)

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

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.

 

 

 

Reflections on the Anishinabe Law Camp (Bkejwanong Territory)

By: Valarie Waboose and Gemma Smyth

We write from the Faculty of Law at the University of Windsor, located on unceded Anishinabe Territory, the territory of the Three Fires Confederacy, Windsor, Ontario. We write, here, about experiences we had in organising and delivering an Anishinabe Law Camp for the Faculty of Law at the University of Windsor, on Bkejwanong Territory (Walpole Island First Nation) with Professor John Borrows (UVic), Professor Heidi Kiiwetinepinesiik Stark (UVic) and Hannah Askew (West Coast Environmental Law). The camp was held over a four day period between April 14 – 17, 2016. We have divided this blog into two voices: one from Professor Valarie Waboose and the other from Professor Gemma Smyth. We hope these two contrasting voices will shed light not only on our experiences in the Camp, but also on the roles and experiences of Anishinabe and settler peoples engaging in reconciliation-related teaching and learning experiences.

First, reflections from Professor Valarie Waboose.

I am an Anishinabe-Kwe from Walpole Island First Nation, the second oldest child of two residential school survivors, a mother of two, grandmother of 7 and great-grandmother of 1. I am a 1^st degree member of the Three Fires Midewiwin Lodge. My life and worldview centres around the Anishinabe teachings of the Midewiwin Lodge. I have resided on Walpole Island First Nation most of my life and have worked within this community for at least 20 years. During my lifetime I have completed a bachelor’s degree, a law degree, masters of law degree and a Ph. D. From 1996 – 2002 I worked as In-house Counsel to the Walpole Island First Nation and served for two terms on Walpole Island Council. My familiarity with the community was key to organising the Camp and ensuring it proceeded in a good way.

I offered to host an Anishinabe Law Camp in the spirit of reconciliation and a movement towards understanding and sharing an Anishinabe way of life. Windsor Law faculty and staff, as well as Elder and residential school survivor Susie Jones had been working together over 2015-2016 on a Truth and Reconciliation Steering Committee. This Camp was key as a first step in introducing faculty members more deeply to Anishinabe law and legal traditions.

Bkejwanong Territory (Walpole Island First Nation) is located in a secluded area adjacent to waterways leading to Lake St. Clair and surrounded by miles of untouched marshlands and natural habitat. The land was an important teacher throughout our time together.

The agenda for the camp was developed using a template by Professor John Borrows of University of Victoria and included stories, songs and circle discussion. Approximately 10 faculty members and their families attended to learn about Anishinabe epistemology from a number of invited guest speakers, each knowledgeable in a different area of Anishinabe life. The agenda included as many aspects of Anishinabe life as possible including history of Walpole Island First Nation, the legacy of residential schools on Walpole Island, a medicine walk, cultural teachings, storytelling and ceremony, circle sharing, boat tours, songs and dance.

In our reflections on the camp, it was clear that it was well received by all in attendance. The personal transformations in each participant was profound. An important aspect of the camp was the spirituality present during this four-day event. Within Anishinabe lifeways, spirituality is a major component of every aspect of personal and community life; as such, this aspect was important to understand the teachings shared during this event. Having members of the Midewiwin Society present and sharing their Indigenous knowledge during the camp enriched the participants’ understanding and incorporation of Anishinabe spirituality.

In my view, the spiritual realm within the four quadrants of the medicine wheel is one quadrant that is rarely touched within the practice of law. For some, entering this space may feel frightening but for others can be insight into their ways of being and understanding Indigenous law. As an Anishinabe Kwe teaching in a colonial institution I feel that young and aspiring lawyers need to learn how to get in touch with all quadrants of the self as reflected within the medicine wheel: mental, emotional, physical and spiritual. Taking this step and learning about oneself and how self fits into the natural order of the universe is a very humbling experience and can make a difference in their future practice of law.

Another highlight of the camp was having John Borrows, Heidi Stark and Hannah Askew share methodologies of incorporating learning from the land into the classroom setting. Their use of song, Anishinabemowin (Ojibway language) and storytelling was an incredible experience even for me as an Anishinabe Kwe. The work that they are currently doing in relation to Indigenous Legal Traditions is cultivating a new path towards understanding and teaching law to future lawyers. Perhaps, this new path is so far removed from the current norm and many will not be comfortable using these new methodologies. However, if one wants to fully understand and appreciate Indigenous Legal Traditions the person must embark upon this transformative journey. Reading about Indigenous Legal Traditions is only part of the equation; to actually be in a natural setting, experiencing the spiritual aspects of Anishinabe lifeways and learning about Indigenous legal traditions from Indigenous teachers is central to a deeper understanding of Anishinabe Law.

Second, reflections from Professor Gemma Smyth.

I am a settler whose family originally landed in Treaty 6 territory having been “granted” land in Saskatchewan. I grew up in Anishinabe territory not far from Bkejwanong First Nation (Walpole Island). My late father taught high school at the town nearest Walpole Island and I attended high school with kids from Walpole Island. It is with a mixture of regret and excitement that I am only recently discovering more about the teachings, histories, and peoples of this incredible place. It has been an honour to work with Professor Waboose on the Truth and Reconciliation Commission Steering Committee as well as the Anishinabe Law Camp. Before engaging with what I learned during the Camp, I must first confess to a deep degree of cultural incompetence, much of which I learned about through experience. My ignorance was treated with kindness and gentle correction, rather than rejection. I am indebted to all the teachers and community members for their patience in helping the camp go in a good way.

There is a significant volume of literature on transformative learning experiences and, writing as someone who has crafted them for students and in a professional context, this experience has given me a much deeper understanding of what “transformation” can really mean. The learning environment at the Camp unfolded in an entirely non-threatening, non-judgmental and emotionally open way such that even the most cognitive-focused among us were affected. For me, this emotional openness was key to unlocking my own colonial ways of feeling, thinking and acting. For example, we had a working agenda with times assigned for particular activities. However, the Camp proceeded as it felt right rather than by the prescribed agenda. If members of our group were struggling, everyone supported the experience of that member and adjusted as needed. Nothing was more important that the wellbeing of the people and the environment around us.

Most of us are familiar with the cognitive-behavioural-affective triangle of learning, and many of us have critiqued lack of attention to the affective in legal education. As Professor Waboose writes, above, the Camp challenged me to take seriously a fourth dimension – the spiritual. As someone who works primarily in clinical and experiential legal education and employs feminist pedagogies, the Camp taught me about how to better connect with students (and myself) through reflective space. Critical reflection, reflection-on- and in- action are commonplace concepts in feminist and clinical and experiential education. I often wonder, however, how deeply I allow myself and my students to engage as emotionally, and particularly spiritually, engaged people. The process of learning with and from community deeply challenged the individualistic, neoliberal tendencies in education that have sneakily entered my understanding of law and my work as a teacher and activist. The Camp reminded me of how uncomfortable Western educators are with engaging with whole person in the classroom. The Camp also helped to reconfirm the value of some of the teaching methodologies I use but worry are too “alternative” for students to take seriously.

There were also a number of activists in attendance (myself included). Because of the “white saviour” tendencies common to some activist communities, I had to deeply deconstruct my own instincts to jump into a problem without fully understanding it, and without honouring the community’s own ability to support themselves. As we were reminded, Indigenous communities need allies, not saviours. I am indebted to the community for teaching me how to be politically engaged in a more thoughtful way.

So where to go next? What began as a response to the Truth and Reconciliation Commission has refocused on the relationships we have with surrounding Indigenous communities, and also with our missions as educators, and with ourselves. I don’t want to be naïve about the challenges ahead. As one Elder rightly noted, colonizers have a deep history of learning in the moment and forgetting once back in their ‘natural habitat’. The tug between a more expansive and flexible vision and enactment of time, a more intimate connection to the visceral experiences of land and animals, the connectedness of all beings from the very young to the very old, is virtually absent from my work life. I would be disingenuous to pretend that this will immediately change, but I now find myself consciously working to challenge these ways-of-being.

In future, members of the Windsor Law faculty, staff and students hope to work with the community to expand this opportunity to staff and students. We also hope to maintain relationships built during the Camp and introduce more creative placements. It became clear through this Camp that relationships must guide our work.

Academic Freedom Implications of Responding to the TRC

The new term is upon us and at UNB, like every other law school across the country, we are thinking about the TRC calls to action and how to best respond. The other day, we were lucky enough to have Charlene Bearhead visit UNB’s Faculty of Education, which included a public event on indigenizing the university. An important part of the discussion was about the role of mandatory courses and mandatory curriculum. We all agreed that having one mandatory course would be insufficient in law or any program, but there was some discussion about whether having mandatory courses on Indigenous law and governance, Aboriginal law (I am using that term as a shorthand for settler law applied specifically to Indigenous people(s)) and so forth was a good idea.

The discussion took me back to a conversation I had with Karen Drake from Lakehead earlier in the year after a brilliant talk she gave at UNB on the need for mandatory courses and curriculum. At the time, she argued that faculty should be directed to include mandatory curriculum into their courses. I thought that would be easier to do for courses where the course description included those elements, but felt that directing faculty to include mandatory curriculum where this had not been the product of a collegial process was offensive to academic freedom principles. Karen was of the view that academic freedom attached to the ‘how’ but not the ‘what’ of curricular development. Talking about it more, I came to understand that my reliance on the collegial process was informed by my context of strong academic freedom protections under the UNB collective agreement and a very long history of collegial governance, while Karen’s views were informed by an institutionally younger context. Anyhow, we were both talking about the need to think through the academic freedom piece and she thought I should write something and I agreed and then summer happened and here we are.

The question we were wrestling with is this: when we commit ourselves to responding to the TRC calls to action, particularly to 28, how will we respond to professors who choose not to include aspects of a curriculum we would like to make mandatory for all students. Would it be permissible for a dean to discipline a faculty member who fails to include Aboriginal title in their first year property course? Or pushes it to the end of the syllabus, where it will predictably not get taught? I continue to think that coercion has no place in TRC implementation, and Karen and I were quite agreed that it would be disappointing and less than ideal if it came to that. Where we disagreed was whether it was possible.

My thinking about academic freedom has been profoundly influenced by Jon Thompson, a  mathematics professor emeritus at UNB, former chair the CAUT’s academic freedom committee, inaugural lecturer of our faculty association’s Jon Thompson annual academic freedom lecture, investigator of the York conference controversy (No Debate: The Israel Lobby and Free Speech at Canadian Universities. Halifax: Lorimer, 2011) and coauthor of the report on Dr. Olivieri with Jocelyn Downie and Patricia Baird (The Olivieri Report: The Complete Text of the Report of the Independent Inquiry Commissioned by the Canadian Association of University Teachers. Toronto: Lorimer, 2001). He pointed me to the recent statement of academic freedom articulated by the AUCC (now Universities Canada) and the more elaborate CAUT statement, which makes express mention of freedom of teaching as follows: “Academic freedom includes the right, without restriction by prescribed doctrine, to freedom to teach and discuss.” In a personal conversation, Jon also noted that the history of academic freedom shows that it tends to be progressives who are disciplined, not late adopters.

On its face, the CAUT statement does not answer the question whether academic freedom covers only the ‘how’ and not the ‘what’ of teaching, and the AUCC statement is even less instructive. So I turned to the arbitral jurisprudence. It turns out that there are not many decisions that address academic freedom in the context of teaching. But I did find a couple that might be helpful. One is a recent Quebec decision involving Concordia University where the collective agreement specifically protected the rights of instructors to pick their own teaching materials. Despite this, the grievance was denied in the context of a multi-section course because academic freedom of teaching was found to be constrained by a general ‘reasonableness’ requirement. Also, the institutional purpose of delivering the multi-section course in a consistent manner was found to be compelling, particularly when the requirement to use particular materials was the subject of express language in the job ad. It is noteworthy, however, that the decision affected the right to recall of a part-time instructor for a particular course, rather than a discipline grievance by a tenured or tenure-track professor.

The second potentially relevant case is from Memorial. Here, a professor’s right to determine the final mark for a student in her course was in issue. In that case, the arbitration board found that the university had violated the professor’s academic freedom, but not because her freedom to mark student work was unlimited, but rather because academic freedom has a procedural rights component that meant she had a right to be included in the discussion. This is not on point in terms of teaching materials, but the notion that academic freedom principles could be respected through process is helpful.

In an ideal world, the general enthusiasm for and commitment to implementing the calls to action would be sufficient for pervasive and comprehensive curricular reform. My sense from speaking with colleagues across the country is that faculty everywhere are working on this with dedication, creativity and love. Maybe it is because I have been working in faculty labour relations for too long, but I would nevertheless be surprised if the issue of mandatory curriculum inside of existing courses will not give rise to tensions somewhere along the way. In particular, what is true for many of our students is also true for many of us: we simply know too little and do not have confidence in our ability to teach a reconciliation curriculum. I am therefore incredibly grateful for all the contributions to the blog project, it is the kind of capacity-building that is desperately needed. Maybe we don’t have to answer the academic freedom question, but I hope that if we do, we will find ways to make progress as colleagues.

Jula Hughes is an associate professor at the Faculty of Law at the University of New Brunswick and a former president of AUNBT, the UNB faculty association.