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Published online by Cambridge University Press: 13 May 2019
In the past decade there has been a distinct increase in literature on Indigenous laws. Calls to teach about Indigenous laws in postsecondary institutions in Canada have also intensified. This growth and these calls are significant, yet as with all fields of inquiry and teaching, there are also gaps. Gender continues to be under-addressed in work on Indigenous legal education. Drawing on interviews with twenty-three professors who teach about Indigenous law at postsecondary institutions in Canada, I examine the challenges in gendering Indigenous legal education. The professors all expressed that it is important to engage with gender when teaching, but the majority were experiencing significant challenges in actually doing so in practice. It is essential to understand how these challenges are entangled with gendered power dynamics and broader structural barriers, as they will continue to limit Indigenous legal education if not directly deconstructed and changed. Overall, the interviews signal the need for increased institutional support and change, more educational resources, eliminating discrimination, and ongoing discussion about gender and Indigenous law.
Au cours de la dernière décennie, il y a eu une augmentation significative des écrits traitant des lois autochtones. Les appels à enseigner les lois et le droit autochtones dans les établissements d’enseignement postsecondaire canadiens se sont eux aussi intensifiés. Comme dans tous les domaines de recherche et d’enseignement, ces écrits et ces appels, bien que significatifs, ne sont toutefois pas exempts de lacunes. En effet, le genre continue d’être un sujet sous-traité dans les travaux sur l’enseignement du droit autochtone. En me basant sur des entrevues avec vingt-trois professeurs qui enseignent le droit autochtone dans des établissements d’enseignement postsecondaire canadiens, j’examine les défis de la genrisation de ce champ d’enseignement. De manière unanime, ces professeurs ont déclaré qu’il s’avérait important de considérer le genre lors de l’enseignement. Or, la majorité d’entre eux ont rencontré des difficultés dans la mise en œuvre de cette pratique. Il s’avère essentiel de comprendre comment ces difficultés sont enchevêtrées dans une dynamique de pouvoir genrée et dans des obstacles structurels plus larges, et ce, dans la mesure où cette dynamique et ces obstacles continueront de limiter l’enseignement des lois autochtones s’ils ne sont pas directement déconstruits et modifiés.
This research was supported by the Social Sciences and Humanities Research Council of Canada.
1 Margaret [pseudonym] is an Indigenous woman who was one of the participants in this research.
2 I use “Indigenous law” to refer to Indigenous peoples’ own legal orders and “Aboriginal law” to refer to state laws about Indigenous peoples.
3 “Cisgender” describes a person whose gender identity (e.g., a woman) lines up with their sex (e.g., female), as purported through the gender binary. The gender binary is not reflective of the depth and complexities of sex and gender, it imposes heteronormative expectations, it is hierarchical (maleness, boys, men, and masculinity are attributed positive characteristics), and it is upheld through heteropatriarchy and colonialism.
4 I use “gendering” and “gender” (i.e., the need to “gender” law) to refer to actively being attentive to gender where it is otherwise being overlooked. I use “gendered” to refer to the realities in which experiences are shaped by gender.
5 For example, Indigenous law programming exists at the University of Victoria, University of British Columbia, University of Alberta, Lakehead University, Osgoode Hall Law School, University of Windsor, and University of Ottawa. For a discussion about programs see: John Borrows, “Outsider Education: Indigenous Law and Land-Based Learning,” Windsor Yearbook Access to Justice 33 (2016): 1–27; Hanna Askew, “Learning from Bear-Walker: Indigenous Legal Orders and Intercultural Legal Education in Canadian Law Schools,” Windsor Yearbook Access to Justice 33 (2016): 29–46. Overall, the number of faculty working in this area, while growing through graduate student training, is still relatively small.
6 In fall 2018, the Faculty of Law at the University of Victoria began offering a law degree (JID) in Indigenous laws—the first program of this kind worldwide. “Joint Degree Program in Canadian Common Law and Indigenous Legal Orders JD/JID,” University of Victoria, accessed 8 August 2018, https://www.uvic.ca/law/about/indigenous/jid/index.php. Given the scholars who are leading and supporting the development of that program, it is promising that gender will be taken seriously and centred in the work of the JID.
7 “Truth and Reconciliation Commission of Canada: Calls to Action,” Truth and Reconciliation Commission of Canada, 2015, accessed 8 August 2018, http://www.trc.ca/websites/trcinstitution/File/2015/Findings/Calls_to_Action_English2.pdf at 3. The interviews on which this research is based were done before the calls to action were released. Critical conversations are necessary regarding why people, particularly settlers, have been more willing to hear these calls for Indigenous law once framed through the Truth and Reconciliation Commission. For an analysis of reconciliation and legal education see Jeffery G. Hewitt, “Decolonizing and Indigenizing: Some Considerations for Law Schools,” Windsor Yearbook Access to Justice 33 (2016): 65–84.
8 Rebecca Johnson and Lori Groft, “Learning Indigenous Law: Reflections on Working with Western Inuit Stories,” Lakehead Law Journal 2, no. 2 (2017): 117–44 at 118. See also Aaron Mills, “The Lifeworlds of Law: On Revitalizing Indigenous Legal Orders Today,” McGill Law Journal 61, no. 4 (2016): 847–84 at 856.
9 Natasha Bakht et al., “Counting Outsiders: A Critical Exploration of Outsider Course Enrollment in Canadian Legal Education,” Osgoode Hall Law Journal 45, no. 4 (2007): 667–732 at 699–700.
10 Bakht et al., “Counting Outsiders”; Susan Boyd, “Spaces and Challenges: Feminism in Legal Academia,” University of British Columbia Law Review 44, no. 1 (2011): 205–20.
11 See Val Napoleon, Ayook: Gitksan Legal Order, Law, and Legal Theory. Unpublished doctoral dissertation, University of Victoria, Victoria, Canada, 2009; John Borrows, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010); Bruce Miller, “Justice, Law, and the Lens of Culture,” Wicazo Sa Review 18, no. 2 (2003): 135–49; Hadley Friedland, “Reflective Frameworks: Methods for Accessing, Understanding and Applying Indigenous Laws,” Indigenous Law Journal 11, no. 1 (2012): 1–40.
12 See Napoleon, Ayook; Borrows, Canada’s Indigenous Constitution; John Borrows, Freedom and Indigenous Constitutionalism (Toronto: University of Toronto Press, 2016); Hadley Friedland, The Wetiko Legal Principles: Cree and Anishinabek Responses to Violence and Victimization (Toronto: University of Toronto Press, 2018); Val Napoleon and Hadley Friedland, “An Inside Job: Engaging with Indigenous Legal Traditions through Stories” McGill Law Journal 61, no. 4 (2016): 725–54.
13 Regarding concerns raised about the conflation of Indigenous law with Aboriginal law, see also: Kirsten Anker, “Teaching ‘Indigenous Peoples and the Law’: Whose Law?” Alternative Law Journal 33, no. 3 (2008): 132–36 ; Nicole Graham, “Indigenous Property Matters in Real Property Courses at Australian Universities,” Legal Education Review 19, no. 2 (2009): 289–304.
14 Carwyn Jones, “Indigenous Legal Issues, Indigenous Perspectives and Indigenous Law in The New Zealand LLB Curriculum,” Legal Education Review 19, no. 2 (2009): 257–70 at 258.
15 Ibid at 266. See also Maguire and Young, who apply Jones’ work: Amy Maguire and Tamara Young, “Indigenisation of Curricula: Current Teaching Practices in Law,” Legal Education Review 25, no. 1 (2015): 95–119 at 110–111.
16 See: Mills, “Lifeworlds of Law”; Robert Yelkatte Clifford, “Listening to Law,” Windsor Yearbook Access to Justice 33 (2016): 47–63; Maguire and Young, “Indigenisation of Curricula”; Asmi Wood, “Law Studies and Indigenous Students’ Well-Being: Closing the (Many) Gap(s),” Legal Education Review 21, no. 2 (2011): 251–76; Irene Watson, “Some Reflections on Teaching Law: Whose Law, Yours or Mine?” Indigenous Law Bulletin 6, no. 8 (2005): 23–25; Nicole Watson, “Indigenous People in Legal Education: Staring into a Mirror Without Reflection,” Indigenous Law Bulletin 6, no. 8 (2005): 4–7; Heather Douglas, “Indigenous Legal Education: Towards Indigenisation,” Indigenous Law Bulletin 6, no. 8 (2005): 12–15; Phil Falk, “Law School and the Indigenous Student Experience,” Indigenous Law Bulletin 6, no. 8 (2005): 8–11; Sean Brennan et al., “Indigenous Legal Education at UNSW: A Work in Progress,” Indigenous Law Bulletin 6, no. 8 (2005): 26–29.
17 Leah Whiu, “A Maori Woman’s Experience of Feminist Legal Education in Aotearoa,” Waikato Law Review 2 (1994): 161–69; Tracey Lindberg, “What Do You Call an Indian Woman with a Law Degree? Nine Aboriginal Women at the University of Saskatchewan College of Law Speak Out,” Canadian Journal of Women and the Law 9 (1997): 301–35; Patricia A. Monture, “Now that the Door is Open: First Nations and the Law School Experience,” Queen’s Law Journal 15 (1990): 179–215.
18 See for example: Douglas, “Indigenous Legal Education.”
19 Regarding particular legal orders, see: John Borrows, “Heroes, Tricksters, Monsters, and Caretakers: Indigenous Law and Legal Education,” McGill Law Journal 61, no. 4 (2016): 795–846; Mills, “Lifeworlds of Law”; Johnson and Groft, “Learning Indigenous Law.” Regarding specific courses, see: Anna Lund et al., “Reconciliation in The Corporate Commercial Classroom,” Lakehead Law Journal 2, no. 1 (2016–2017): 49–63; Thalia Anthony and Melanie Schwartz, “Invoking Cultural Awareness through Teaching in Indigenous Issues in Criminal Law and Procedure,” Legal Education Review 23, no. 1 (2013): 31–55; Nicole Graham, “Indigenous Property Matters”; Alexander Reilly, “Finding an Indigenous Perspective in Administrative Law,” Legal Education Review 19, no. 2 (2009): 271–87; Anker, “Teaching ‘Indigenous Peoples and the Law.’” Regarding the Truth and Reconciliation Commission, see: Hewitt, “Decolonizing and Indigenizing”; Askew, “Learning from Bear-Walker”; Kirsten Anker, “Reconciliation in Translation: Indigenous Legal Traditions and Canada’s Truth and Reconciliation Commission,” Windsor Yearbook Access to Justice 33 (2016): 15–43.
20 For exceptions, see: Borrows, “Heroes, Tricksters, Monsters, and Caretakers”; Mills, “Lifeworlds of Law.”
21 Borrows, “Heroes, Tricksters, Monsters, and Caretakers,” 804.
22 For exceptions see: Hewitt, “Decolonizing and Indigenizing”; Borrows, “Heroes, Tricksters, Monsters, and Caretakers”; Borrows, “Outsider Education”; Askew, “Learning from Bear-Walker”; Anker, “Teaching ‘Indigenous Peoples and the Law’”; Loretta Kelly, “A Personal Reflection: On Being An Indigenous Law Academic,” Indigenous Law Bulletin 6, no. 8 (2005): 19–22. It is noteworthy though, that gender is only briefly analyzed or mentioned in these pieces and is not the focus of the articles.
23 Emily Snyder, Gender, Power, and Representations of Cree Law (Vancouver: UBC Press, 2018); Emily Snyder, “Indigenous Feminist Legal Theory,” Canadian Journal of Women and the Law 26, no. 2 (2014): 365–401. For exceptions see, for example: Val Napoleon, “Aboriginal Discourse: Gender, Identity, and Community,” in Indigenous Peoples and the Law: Comparative and Critical Perspectives, ed. Benjamin J. Richardson, Shin Imai, and Kent McNeil (Oxford: Hart, 2009), 233; Sarah Deer, “Decolonizing Rape Law: A Native Feminist Synthesis of Safety and Sovereignty,” Wicazo Sa Review 24 no. 2 (2009): 149–67; Isabel Altamirano-Jimenez, “Indigenous Law, Gender and Neoliberal State Restructuring in Oaxaca,” in Making Space for Indigenous Feminism, 2nd ed., ed. Joyce Green (Halifax: Fernwood, 2017); John Borrows, “Aboriginal and Treaty Rights and Violence Against Women,” Osgoode Hall Law Journal 50, no. 3 (2013): 699–736.
24 See broader literature on Indigenous feminisms, for example: Joyce Green, ed., Making Space for Indigenous Feminism, 2nd ed. (Halifax: Fernwood, 2017); Cheryl Suzack et al. (eds.), Indigenous Women and Feminism: Politics, Activism, Culture (Vancouver: UBC Press, 2010).
25 See Green, Making Space; Suzack et al., Indigenous Women and Feminism.
26 See Emily Snyder, Val Napoleon, and John Borrows, “Gender and Violence: Drawing on Indigenous Legal Resources,” UBC Law Review 48, no. 2 (2015): 593–654.
27 I currently work in an Indigenous Studies department and a Women’s and Gender Studies program. I have previously worked in Sociology and Legal Studies, and my work falls within critical socio-legal studies. Disciplinary contexts aside, there are many complex issues concerning white settlers working in the field of Indigenous law. I come to this work through a belief that settlers have responsibilities to learn about and engage with Indigenous laws, and to actively challenge the ways that colonialism (and related forms of oppression) operates through settler institutions. Those discussions are much larger than what can be addressed here and it is noteworthy that discussions about the role of non-Indigenous people in the future of Indigenous legal education are discussed in the companion article on Indigenous feminist legal pedagogies that is noted above.
28 As with all participants, when questions came up about methods, these issues and the reasons behind the structure of the methodological approach were openly discussed. We discussed ways to ensure anonymity and protection of those who felt vulnerable, while also trying to mitigate compromising the complexities of Indigenous laws and what participants were communicating. I am appreciative of the individual feedback and hope to have honoured the nuances from the interviews.
29 For example: racism and colonialism leading to misunderstandings about Indigenous laws from students, faculty, and staff; how to teach about Indigenous laws in universities (what methods to use, where to teach, language issues, who should be teaching); institutional barriers. See: Anker, “Teaching ‘Indigenous Peoples and the Law’”; Watson, “Some Reflections on Teaching Law”; Borrows, “Heroes, Tricksters, Monsters, and Caretakers”; Johnson and Groft, “Learning Indigenous Law”; Lund et al., “Reconciliation”; Maguire and Young, “Indigenisation of Curricula”; John Borrows, “Seven Gifts: Revitalizing Living Laws Through Indigenous Legal Practice,” Lakehead Law Journal 2, no. 1 (2016–2017): 2–14; Borrows, “Outsider Education”; Anker, “Reconciliation in Translation”; Askew, “Learning from Bear-Walker”; Hewitt, “Decolonizing and Indigenizing”; Mills, “Lifeworlds of Law.”
30 Indigenous Law Research Unit (ILRU), Gender Inside Indigenous Law Toolkit, University of Victoria, https://www.uvic.ca/law/assets/docs/ilru/Gender%20Inside%20Indigenous%20Law%20Toolkit%20October%202017.pdf; ILRU, Gender Inside Indigenous Law Casebook, University of Victoria, https://www.uvic.ca/law/assets/docs/ilru/ILRU%20Gender%20Inside%20Indigenous%20Law%20Casebook.pdf; ILRU Gender Project: Skirt Short, https://www.youtube.com/watch?v=pJiceA7HQPg&list=PLnv4-MGbmu3MFyWlss069RCdWg31shgCe; to access the Indigenous Law Video on Demand links and teaching guide go to, https://www.uvic.ca/law/about/indigenous/indigenouslawresearchunit/videoondemand.php (online resources accessed 31 August 2018); Val Napoleon, Mikomosis and the Wetiko (Victoria: Indigenous Law Research Unit, 2013); Emily Snyder et al., Mikomosis and the Wetiko: A Teaching Guide for Youth, Community, and Post-Secondary Educators (Victoria: Indigenous Law Research Unit, 2014).
31 Snyder, Gender, Power, and Representations; Snyder, Napoleon, and Borrows, “Gender and Violence.”
32 See for example, Colin Duncan and Wendy Loretto, “Never the Right Age? Gender and Age-Based Discrimination in Employment,” Gender, Work and Organization, 11, no. 1 (2004): 95–115.
33 Pseudonyms are not being used here, as it could reveal the age of participants.
34 See for example: Luana Ross, “From the ‘F’ Word to Indigenous/Feminisms,” Wicazo Sa Review, 24, no. 2, (2009): 39–52; Kim Anderson, “Affirmations of an Indigenous Feminist,” in Indigenous Women and Feminism: Politics, Activism, Culture, ed. Cheryl Suzack et al., (Vancouver: UBC Press, 2010), 81; Isabel Altamirano-Jiménez, “Nunavut: Whose Homeland, Whose Voices?” Canadian Woman Studies 26, no. 3,4 (2008): 128–34; Lisa Kahaleole Hall, “Navigating Our Own ‘Sea of Islands’: Remapping a Theoretical Space for Hawaiian Women and Indigenous Feminism,” Wicazo Sa Review 24, no. 2 (2009): 15–38; Mishuana R. Goeman and Jennifer Nez Denetdale, “Native Feminisms: Legacies, Interventions, and Indigenous Sovereignties,” Wicazo Sa Review 24, no. 2 (2009): 9–13; Kiera Ladner, “Gendering Decolonisation, Decolonising Gender,” Australian Indigenous Law Review, 13 (2009): 62–77.
35 See for example: Anker, “Teaching ‘Indigenous Peoples and the Law’”; Borrows, “Heroes, Tricksters, Monsters, and Caretakers”; Lund et al., “Reconciliation”; Borrows, “Outsider Education”; Askew, “Learning from Bear-Walker”; Hewitt, “Decolonizing and Indigenizing”; Mills, “Lifeworlds of Law.”
36 See for example, Lindberg, “What Do You Call.”
37 Regarding discrimination against professors, see: Frances Henry et al., The Equity Myth: Racialization and Indigeneity at Canadian Universities (Vancouver: UBC Press, 2017); Claudia Lampman, “Women Faculty at Risk: U.S. Professors Report on their Experiences with Student Incivility, Bullying, Aggression, and Sexual Attention,” NASPA Journal About Women in Higher Education, 5, no. 2 (2012): 184–208.
38 Henry et al., The Equity Myth, 7.
39 Hewitt also argues, “little space has been made within the academy for Indigenous legal research methodologies and scholars—particularly Indigenous women,” “Decolonizing and Indigenizing,” 72.
40 Boyd, “Spaces and Challenges,” 215.
41 Sara Ahmed, On Being Included: Racism and Diversity in Institutional Life (Durham: Duke University Press, 2012), at 4.
42 Ibid at 13. Emphasis in original.
43 Ibid at 8. Emphasis in original.