Category Archives: The Round House

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.


 

IFLS Book Club Post #16 [Leah Gardener]

 

A fuzzy, rotting casserole in the back of the fridge, no matter how you dress it up, or add to it—even with the most well-intentioned ingredients—is still a fuzzy, rotting casserole.  Erdrich’s metaphor for Aboriginal law is apt in many ways. The leading cases in the field are long and often contain odd reasoning and conspicuous silences. One explanation for this is that Aboriginal law is a complex and developing field of law. Another reason is that these contemporary cases are an awkward attempt to build legitimate case law from a base that is essentially corrupt and fragile. Where does the rot come from exactly? Although many Aboriginal law practitioners and judges are interested in the field as a way to chip away at Canadian colonialism, the case law has been largely silent on Canada’s colonial past and present. We are left with awkward silences and big questions: How did British sovereignty occur? How is it legitimate? Why did Aboriginal people “live in organized societies” before European contact, but were not sovereigns nations themselves? Without directly addressing questions like these,  Canadian law remains detached from reality and largely illegitimate.

Throughout the book, Erdrich juxtaposes Canadian law with Aboriginal legal traditions, demonstrating the need for law to be an extension of the social, cultural, natural and spiritual world. The one great tragedy of the story occurs because of a jurisdictional mess, stemming from out-of-touch Canadian law: Joe’s mother’s rape cannot be prosecuted because she does not know where it occurred on the reservation and thus which legal system the crime falls under. Another great tragedy occurs as a result of Joe’s failure to listen to his own people’s legal tradition, which appears to be more connected to the world around it, leading to more just results. When Joe pays heed to the stories of the round house’s history, and listens to guidance from natural and spiritual forces, he uncovers information – like the gas can—that can lead to justice for his mother. However, when he ignores these stories and spirits—like Bugger’s dream—, he makes the fateful decision to murder his mother’s assailant, which leads to the death of his best friend and causes him great pain for the rest of his life.

Erdrich appears to be advocating, not necessarily for a return to traditional law, but the development of a body of law that is simply in touch with reality and thus legitimate. For Canadian law to move in that direction, it needs to transform dramatically. Confronting colonialism head on, and making more space for aboriginal legal traditions and autonomy, is a good place to start.

 


 

Leah Gardener is a student in Osgoode’s  Intensive Program in Aboriginal Lands, Resources & Government.


 

IFLS Book Club Post #15 [Liane Langstaff]

The Round House is a powerful and incredibly engaging novel. In this blog post, I will discuss two aspects that particularly resonated with me: the importance of small steps towards indigenous sovereignty and the existence of light amid the darkness.

Importance of small steps towards sovereignty

A consistent theme throughout the book was the importance of taking steps, however small, towards indigenous sovereignty. After the rapist, Linden is let go due to overlapping jurisdictional issues, Joe lashes out at his father, Bazil, lamenting his father’s limitations as a tribal judge (and the corresponding impotence of tribal law). Bazil responds by illustrating the inherent problems of the current legal system with a rotten casserole with knives carefully balanced on top.

The rotten casserole itself was the basis of American native rights in cases like Johnson v McIntosh which striped away Aboriginal title to lands through the doctrine of discovery. The knives represented decisions made by tribal judges. As Joe’s father explains

everything we [tribal judges] do, no matter how trivial, must be crafted keenly. We are trying to build a solid base here for our sovereignty. Our records will be scrutinized by Congress one day and decisions on whether to enlarge our jurisdiction will be made.[2]

Therefore, the decisions of tribal judges, although constrained and of sometimes trivial scope, are still of the utmost importance to help establish a strong basis of sovereignty, despite a rotten precedential foundation.

Light amid the darkness

The Round House is such an intriguing novel because Louise Erdrich captured the light that can exist even in the darkest parts of our lives. Many people are surprised when I tell them I loved this book. They are often puzzled, “you actually enjoyed a book which revolves around violence against women?”. However, as much as the book opens up the readers’ eyes to the very worst of humankind’s prejudice, violent tendencies and capacity for evil; Erdrich equally infuses the book with the tenderness of Joe’s loving family, the strong bonds of friendship between Joe and Cappy and the light-heartedness of boys horsing around during the summer.

In this way, Erdrich sends a hopeful message both for our lives and for the future of Aboriginal law. Even though North American legal systems do not currently allow a significant role for indigenous law, the light of indigenous legal traditions can and will continue in the future, just as the old buffalo explained to Nanapush:

Your people were brought together by us buffalo once. You knew how to hunt and use us. Your clans gave you laws. You had many rules by which you operated. Rules that respected us and forced you to work together. Now we are gone, but as you have once sheltered in my body, so now you understand. The round house will be my body…and it must be respected the same way.[3]

The Round House is a transformational work of literature. I look forward to discussing it with you on January 14th.

[1] Louise Erdrich, The Round House (New York: Harper Collins Publishers, 2012) [Erdrich].

[2] Erdrich, ibid at 229.

[3] Erdrich, ibid at 214.


Liane is a student in Osgoode’s  Intensive Program in Aboriginal Lands, Resources & Government.

 

IFLS Book Club Post #14 [Margaux Malkina]

After reading The Round House, I found myself unable to express my feelings about the book. I could not say I liked or enjoyed, yet I was unable to explain why I did not find it a bad read: the book simply perplexed me. It was not the sad story, nor the transparent injustice depicted in the novel, that shocked me. Rather, it was a realization of one thing that I managed to forget during my years at law school: reality. The reality of human suffering, the reality of untold consequences, the reality of emotions, all of these are among many things that lawyers may not regard as legallty relevant, but yet these things affect the lives of people in many ways and sometimes even more that the legally significant facts. I believe that it was not the crime per se that had formed the lives of the characters in this novel. The crime was described briefly, but sufficient to give us enough information to imagine the actus reus. Also, we were given a mens rea – one of the characters speculated the motive of the main villain, the rapist Lark. Yet, that was not the main point of the book, at least not for me. The reality was not the crime, the crime that is so common on Indian reserves, but rather it was how each characters had dealt with it and how it had affected their lives. A crime impacts more people than just a victim – there are silence victims whose stories we will not read in a case. And maybe the injustice lies not only in some technically that would set an accused free, maybe the real crime is that we fail to see the reality by and that we fail to act.


Margaux is a student in Osgoode’s  Intensive Program in Aboriginal Lands, Resources & Government.