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.
The TRC Calls to Action speak to the importance (for law students, lawyers, doctors, nurses, journalists, bureaucrats, citizens) of learning about:
- 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
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  (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:
- Attends to questions of human safety (drawing on indigenous laws and protocols governing ways, times, and places in which hunting can happen),
- Attends to questions of conservation (drawing on Indigenous laws related to stewardship of land and animals),
- 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.
 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/.
- 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.
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 1st 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.
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.
Several years ago, I made a mistake. In return, I received an invaluable gift.
Teaching jurisprudence for the first time, I assigned Margaret Davies’ wonderful book Asking the Law Question. That was not the mistake! In fact, I love that text and teaching from it was a joy. Davies combines a deep knowledge of legal theory with a narrative voice that brings the salience and joy of ‘doing theory’ to life. The book includes considerable attention to Indigenous legal theory by scholars who live and work in the country we know as Australia, the country where I grew up and received my first legal education. I was glad to have that content (and context) to share with my students at UBC, because I felt it would offer them some sense of how Indigenous scholars elsewhere have grappled with and made sense of colonialism, neo-liberal governance, and violence.
My mistake was to overlook the importance of offering students an Indigenous take on these issues that came from their place and their context. When I taught Australian Indigenous theory to my students, and talked to them about The Ranger Uranium Mine and Jabiluka and about The Aboriginal Tent Embassy, I hoped to open conversations about the similarities and differences between settler colonialism and Indigenous resistance as it played out in Australia and in Canada. However, many of my students – at a time before UBC had implemented its Aboriginal constitutional law module – lacked the context and the history of Canadian colonialism that would have made these comparisons meaningful.
More importantly, for my Indigenous students, studying Indigenous legal theory and examples that originated in Australia was deeply frustrating: they had looked to this course as an opportunity to read and discuss some of the brilliant work by Indigenous scholars who belong to Indigenous communities in Canada and work in this space. They also wanted to read work by non-Indigenous scholars who have written thoughtfully and knowledgeably about Indigenous people and the Canadian legal system.
The gift I received was that three of my Indigenous students decided to discuss their concerns with me. They explained why they felt frustrated by the reading and discussion we’d had under the umbrella of “Indigenous legal theory”. They asked me to reconsider for the following year.
I will always be grateful to those students for having the courage to speak to me. It is not an easy thing to challenge one’s professor. Even less so when the thing you are challenging them about is something that is fundamentally important to you.
In preparation for the coming year, I have been reading Sheila Cote-Meek, Colonized Classrooms: Racism, Trauma and Resistance in Post-Secondary Education. This book, and a recent article in This (The Canoe and the Ship) have reminded me that post-secondary education is too often an exclusionary experience for Indigenous students. My reading makes me value my students’ willingness to engage in dialogue with me even more.
I can only hope that in my response to them, I acknowledged their courage and the gift they were giving me by reaching out to me.
After their visit, I pulled books from my shelves and articles from my database. Anyone who has taught will understand the care with which we select the one or two pieces we ask students to read, and the dismay with which we set eight or ten pieces aside for every one we set. After much mulling, I decided to defer the planned syllabus for two classes and to ask students to read two pieces:
The conversations we had about these two pieces were some of the best we had all term. We all learned a great deal that week – perhaps me most of all.
Reconciliation is a hopeful word. A word that promises a way of doing things that will bring people together with shared respect and a sense that we all have much to learn. It is a word that challenges those of us with relative power – professors and teachers – to adjust our way of doing and being educators.
As we begin a new academic year, and seek to enrich and deepen the #Reconciliationsyllabus, my reconciliation includes being open to hearing from those who have the courage to make things better, and being open to changing course in response to what I am learning.
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.
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”.
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.
This 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. Her 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?
Rules 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.
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 firstname.lastname@example.org, or Professor Rebecca Johnson, at email@example.com.
I started my day with my morning tea and these illuminating words from Jess Housty. From her Twitter profile (@heiltsukvoice), Jess Housty describes herself as: ‘Cúagilákv: Community agitator; mother; tribal councillor; admirer of gentle warriors; foreign-funded radical; Indigenist; unapologetically
#Heiltsuk. Though I haven’t met her myself, I have had the opportunity to hear her speak about her work on the campaign to end trophy hunting in Heiltsuk territory. She speaks eloquently and passionately about the importance of collaboration, perseverance, and staying grounded. Check out her other writings here.
Now back to the article. This article is a MUST READ for all Canadians. I really mean that. Though she is writing to a specific audience (film-makers who want to film in Indigenous communities), her words carry with them a much broader significance. Housty leaves this final message:
Reconciliation isn’t about federal apologies or one-time marches in the street. It’s about re-evaluating how you carry yourself in the world in relation to Indigenous peoples. There’s a great deal of learning (and unlearning) to do and I hope you intuit how important and transformative the journey can be.
In the article, she describes the many problematic ways in which films are made in Indigenous communities and provides practical alternatives to people who are interested in working with Indigenous communities. Housty asks all the good questions that people tend to shy away from. Her article addresses the following 8 questions:
- Are you centring Indigenous voices and perspectives?
- Do you expect Indigenous people to stage their culture for you?
- Have you done your homework?
- Are you clear on ownership and intellectual property?
- Have you thought critically about compensation and benefits?
- Are you building capacity or just extracting resources?
- How do you feel about leaving final approvals or ownership of footage with us?
- Are you playing up stereotypes or open to authenticity?
These reflections and suggestions for improvement are certainly relevant in the law school environment where professors are tasked with implementing the TRC Calls to Action and promoting reconciliation. There are endless ways that this article could prove useful to professors in Canadian law schools. For example, professors could assign Housty’s article as reading and then ask each student to analyze a media piece (film, article, news clip) on a legal issue in Indigenous communities with Housty’s words in mind. It is also directly relevant to any professor or student who intends to do legal research with Indigenous communities.
These words keep coming back to me, as I wander through my day. I reflect on the work I have done as a lawyer working with Indigenous communities. Have I done a good enough job centring Indigenous voices and perspectives? Have I been building capacity? Compensating properly? And on and on. I welcome the opportunity to reflect on my work through a new, sharper lens and am thankful that Jess Housty shared her words with the world. So go ahead and read the full article here.