NIP & Not unrelated to the IFLS book club: Emily Snyder: Indigenous Feminist Legal Theory in the CJWL

Emily Snyder (previous IFLS post mentioning her here) has published “Indigenous Feminist Legal Theory” (2014) 26:2 Canadian Journal of Women and the Law 365.  Link is to Project MUSE.

Here is the abstract

This article considers the necessity of critical gender analyses of indigenous laws. “Gender neutral” approaches dominate in the field of indigenous law, ignoring the gendered realities of indigenous laws and also the gendered aspects of theorizing. There is a need to develop theoretical frameworks that explicitly address these problems, and, thus, in this article I articulate Indigenous feminist legal theory. This theory is an analytic tool for examining Indigenous laws as gendered. I build this theory by bringing three bodies of work together, which are presently speaking past one another—feminist legal theory, Indigenous feminist theory, and Indigenous legal theory. Indigenous feminist legal theory generates an intersectional, multi-juridical, anti-colonial, anti-essentialist reading of law that is crucial to a multitude of fields.

IFLS Book Club Post #18 [Paul Daly]

Paul DalyThe Round House is an incredibly rich and complex novel, a coming-of-age story told by a young Native American boy whose mother was brutally raped at the intersection between federal, state and reserve lines.

My contribution will only scratch the surface of one of the book’s many facets, one which relates to the construction of identity, one of the novel’s key themes. The narrator’s father is a judge on the reserve. As is the wont of young boys, the narrator imagines his father as a Herculean figure, presiding gravely but intelligently over murder trials and other high-profile events.

Yet when he cracks open his father’s books he is disappointed: life as a judge involves the endless drudgery of petty crime and jurisdictional wrangling. But his father’s response deserves to be quoted at length:

“We are trying to build a solid base here for our sovereignty. We try to press against the boundaries of what we are allowed, walk a step past the edge. Our records will be scrutinized by Congress one day and decisions on whether to enlarge our jurisdiction will be made. Some day. We want the right to prosecute criminals of all races on all lands within our original boundaries. Which is why I try to run a tight courtroom, Joe. What I am doing now is for the future, though it may seem small, or trivial, or boring, to you.”

Administrative decision-makers are also in an unenviable position, viewed with suspicion by many lawyers and judges (though the latter have been somewhat brought to heel by the Supreme Court’s policy of across-the-board deference, nominally at least). They are fighting for recognition in a world in which Lord Hewart’s tirade against the administrative state still has a willing audience, one where the idea that non-lawyers might have something useful to say about the law still provokes wails of discontent.

And there is a lesson. That building legitimacy is a slow process of building a system from the ground up. Hearings are an opportunity for administrative decision-makers to showcase themselves, advertising how they can use informal processes to maximize participation and ensure access to justice in a timely manner. Decisions are an occasion to demonstrate their wisdom and knowledge to an outside world skeptical of their abilities: well-reasoned decisions are not a burden but a vital component of a robust administrative justice system capable of winning over the doubters. And publication of decisions is not a chore to be avoided but a priceless chance to communicate with the wider public. Bit by little bit, every administrative decision-maker is building his or her contribution to the administrative justice edifice.


 

Paul Daly is assistant professor of law at the University of Montreal but better known for his public law commentary on his blog, Administrative Law Matters.

[and his twitter feed, @pauldalyesq]

IFLS Book Club Post #17 [Gillian Calder]

cat and computerAfter many years of teaching constitutional law with the same texts and methodology, with the same methods of evaluation, and with often the very same stories and evidence, I have changed my course.  I put “the problem” that the course is addressing at the outset, like a big, thick, smelly onion, or a moldy casserole, or a doll stuffed with money, or a buried tin box, with the aim that slowly throughout the year we will build the skills necessary to unpack that problem as a story, sometimes by peeling layers, sometimes by using knives of different lengths and sharpness to cut into the story, sometimes by turning the problem upside down, sometimes by sitting patiently and listening to how the problem is described by others.  And while the goal of the course has not changed – enable students to identify constitutional issues and to make persuasive and effective constitutional law arguments and counter-arguments  — what has shifted is the responsibility we collectively carry being asked to work with these tools; how it demands different forms of engagement with law’s texts.

This book is an extraordinary, haunting, pungent legal text.  It asks for our trust, and reveals promises along the way to alleviate our fears.  We know that Joe is going to be all right, he is telling the story.  This 13 year-old boy will grow up, go to law school, get married.  So stay with me, stay inside me – the story demands —  as I journey to understand the place where law lives.  It flirts with what it means to tell the truth, and then punishes us hard for daring to believe that finding the truth would mean some kind of resolution or catharsis.   It has an issue, an argument, reasons and a ratio, but it has a law that is constantly shifting, moving like a boy on a bike, on a dusty dirt road, in the summer.  It points a big crooked finger at the wiindigo, and offers us traditional precedent to justify the murder of a monster, but then it takes.  Childhood, parents, a best friend.  And leaves the other monsters of the story, the rapist governor, the law that protects whiteness on certain pieces of land, dreams that don’t quite help us find Mayla, hanging in the air, like the Pine-Sol, lemon polish, cigarettes and stalefish smell at Whitey and Sonja’s.

Sometimes when we turn things upside down things fall out of our pockets.  Reading The Round House threw me into a childhood cartwheel, but what I found lying on the ground beside me was a crowbar and one gold tassel.  It returned me with a crash, to my 50 year old educator self, reminded that colonialism is worn on people’s bodies, and that even if there is a doll stuffed with $100 bills to offer some form of diamond earring, “IV Education” escape (239), that money will always have be traced back to its achingly awful, misogynistic, source.  This book is a powerful reminder of the questions that need constantly to be asked and re-asked about legal pluralism in the context of colonialism.  The questions are uncomfortable.  But in the interrogation of different kinds of sources there are reminders of law’s transformative potential, that in our telling and retelling of law’s stories, we can, as Leanne Simpson writes, rebel, resist, re-imagine.

I left The Round House thinking about traditional territories, about harm, about missing and murdered Indigenous women and girls, about child welfare, about story-tellers and story-keepers.  I also left my time with Louise Erdrich grateful, and scheming a way for all my students to find their way to this book.


 

Gillian Calder is an Associate Professor of Law at the University of Victoria’s faculty of law, the parent of a 13 year old fireball, and whenever possible a rock-climber.  Her research interests at the moment are critical legal pedagogy, law’s regulation of the family, and children’s literature as law.


 

Inter-American Commission MMIW Report via Blogging for Equality

Over at Blogging for Equality check out “Yes Mr. Harper It Is A Sociological Phenomenon”.  Sharon McIvor, Shelagh Day and Gwen Brodsky write about the  Inter‑American Commission on Human Rights Issues Breakthrough Report on Missing and Murdered Indigenous Women and Girls