kiyam, let it be, let it be…

During the ‘wearing us as costumes‘ discussion, one poster suggested to another that he ” kiyam-pi”.  To me this word, kiyam, contains a glimpse into a world-view that is very much at the core of Cree-ness.

I have had this word explained to me and modelled for me many times.  Each time I feel like I am seeing a new facet of it.  Do not look for a simple translation of this term. If you have access to a Cree dictionary (as you should if you are on the internet) you will find a long entry.  From Arok Wolvengrey’s dictionary we get this:

oh well, it’s okay, never mind, think nothing of it; so much for this; anyway, rather; let it be, let there be no further delay; please; let’s go then; do so; quietly

“Quietly” is very much a part of this word.  kiyam is a root for various verbs meaning to be quiet, to move quietly, to sit quietly and so on.  However the “quietness” of the word kiyam is not just in the action of avoiding making noise.  It very much includes a quietness of the spirit, echoed in the body.

When someone tells you to “kiyam” they aren’t just telling you to let it be, to let it go, they are also letting it go themselves.  The word often comes with a shrug of the shoulders. It comes with a letting go both mental and physical.

People have different opinions.  That has always been and will always be true, regardless of what culture you come from.  The Cree, the Métis, and many other aboriginal peoples can and do have very heated discussions where many different points of view are explained.  Some people become very passionate, but there is a strong imperative to let everyone have their say, even if their words are rough, even if their words seem confused.  There is wisdom in people’s strong words too, in their emotional reactions, in their seemingly confused explanations.

Sometimes these discussions can be maddening, if you are in a rush.  It can be hard sometimes to understand what someone’s account of a childhood wrong has to do with a current issue.  Except if you really listen, it becomes less difficult.  People do not say these things for no reason.

Sometimes you do not want to hear.  I did not want to hear and I would like to state that honestly.  I gave my reasons.  They may seem vague, but there can be no other way short of giving in to the discussion I refused to engage in. Yes, there is often wisdom in the words of others, but sometimes people just want to draw you into their anger.  That is a draining, and dangerous place to get caught in.

kiyam.  Let it be.  Sometimes you have to just let it go and move on.  Sometimes you don’t get to prove that you are “right”.  Sometimes you don’t get to “win”.  In much settler (or western or whatever you want to call it) discourse it seems that the goal is to wrest that verbal victory from your opponents.  To smash her arguments to dust, to show them for fools.  There is persuasion at play too of course, but the persuasion is often in the form of “who won that round”.

For many native peoples, the persuasion is everything.  If you cannot convince others, then what good are your ideas?  What good is a rhetorical victory anyway?  You cannot “win”.  Your opponent will come to agree with you, or she won’t.  kiyam.  You can’t let it get to you.  Let it go, let it be.

This is not a dismissive or a rude word.  It reminds you of the importance of not allowing your spirit to become sickened with anger or the need to win.  It reminds the speaker as well as the person being spoken to.

So kinanâskomitin, Bruce.  It was a good reminder.

On wearing us as costumes.

So, on the topic of ‘ethnic costumes for Halloween’.  A certain poster campaign and the spin off posters mocking the message have once more got people discussing whether or not this practice is racist.

That you don’t understand why I am offended and upset when you dress up as Pocahontas or some ‘Indian warrior’ doesn’t mean it’s just ‘my problem’. The stupid stereotypes both visual and non-visual about native people in this country are seriously scary. The poisoned political discourse, the active and systemic racism and the ongoing attack on WHO WE ARE AS PEOPLES is so horrific and unfortunately well hidden or justified by those who perpetrate and support it, that you cannot claim to be taking a neutral stance when you ‘ape’ us.

I am really sick of hearing about how it’s just innocent fun. It isn’t. It is part of a wider and staggering ignorance about us that is deliberately fostered in Canada’s political, social and education system in order to continue to oppress and assimilate us. Oh sorry, you didn’t know that? Well I just told you. Your ignorance of these facts is meaningless. That you ‘didn’t mean it in a bad way’ is meaningless. Your actions, however, are anything but meaningless.

Just my two pîwâpiskosak.  It’s not like I think people will stop doing it.

Another place to read more thoughts on the subject is the Native Appropriations Blog.

Follow up:

A friend linked to this blog post on Facebook, and the typical conversation started up once more about how people should ‘lighten up’ and ‘not choose to be offended’ and how it’s not racist to dress up in a caricature of someone from another culture, it actually honours that culture and some people from that culture thought it was soooo cute, blah blah blah…

My youngest daughter came home from school yesterday and told me that a girl in her group was “dressed like an Indian”.  The girl kept ‘war whooping’ in my daughter’s face, and my daughter said she was too scared to ask her to stop.  (This is not the only day of the year, by the way, that other kids think it’s hilarious to war whoop and make tomahawking motions around my daughters and other native children.  Just like it’s not just on Halloween that some children pull at the skin around their eyes and adopt a ridiculous accent in front of the Chinese and Japanese students.)

Someone needs to tell this other little girl that what she was doing, was not okay and why, but should it have to be my seven-year old daughter? I doubt the girl’s parents can be relied upon to understand the issue and say anything to her, given that they allowed her to wear the costume in the first place.  It certainly won’t be any of the privileged people all over the country who angrily defend their ‘right’ to wear racist outfits while blaming those of us who are directly impacted of actually causing racism by bringing it up.

But hey, it’s all in fun and after all, my daughter just needs to learn how to not get offended, problem solved, right?

Cree kinship terms

In the Language and Culture Links section of this blog I linked to a Cree Family Unit site that I stumbled across years ago.  As you can see from the URL, it appears to have been developed in Saskatchewan as part of a family unit in the Cree language/culture program.

There are two ways to navigate this site.  If you click on “Resource” you get the full unadorned document.  Otherwise you can go through it a bit at a time as it is broken down into Lessons.  The nice thing about the Lessons is that there is often audio content that you can download in order to hear the words pronounced.  There is also a ‘test’ at the end.  Just skip to Lesson Two and Lesson Three if you want to hear the kinship terms spoken right away and don’t need the linguistic breakdown.

I’m bringing this resource up because I wanted to talk about kinship terms in Cree.  I like peeking at my stats, to see how people find this blog, and I get to see search engine terms.  (By the way, to say “I love you” in Cree, it’s kisâkihitin – gee-SAH-gih-tin.  A lot of would-be lovers out there it seems!)  A lot of people want to know what to call their relatives in Cree.

If you grew up with Cree-as-ceremony, like I did, then you probably say “kookum” for grandmother.  Yup, we say things like, “My kookum”.  Well, it makes sense that we’d say it like that.  kôhkom means “your grandmother”, so it’s what people would say to you when talking about your grandmother, and would be the word you picked up as meaning “grandmother”.  Oh but it’s bad Cree, hey?  We’re actually saying “my your grandmother”!

Doesn’t matter really, I still say kookum so that people who aren’t fluent Cree speakers know who I’m talking about. But I also say nôhkom, which is how you say “my grandmother” properly.  I say things like, “nôhkom, my kookum used to etc etc”.

It’s confusing when you don’t hear the kinship terms regularly, because in Cree the relationship to you is part of the word itself.  My younger sibling, your younger sibling, his younger sibling, their younger sibling…the root word is always the same but the possessive prefixes change depending on who is related to this younger sibling.  If you hear the term at all in Cree, you’ll often here “your (relative)” and if that’s all you hear, then of course that’ll be the term you use.

My kids definitely have struggled with this.  One will point to herself and say “nitânis” which means “my daughter”.  Obviously it makes no sense, but it’s what she hears.

The site I linked to does a good job of showing you how to break down the root terms and then using the personal prefixes, but I figured I’d go over some anyway without getting into the root terms per se.

A big caveat here…what I present on this page differs somewhat from what is presented in the link I’ve provided.  That is because these kinship terms can vary somewhat from community to community.  I am presenting the terms as I am familiar with them.

Common possessive prefixes and kinship terms

While you might be interested in how to say “their father” and “our-not-including-you aunt”, you probably want to walk before you run.  Most often you’re going to be saying “my (relative)” and “your (relative)”.  So here are these two possessive prefixes:

ni – (my)

ki – (your)

Both of these prefixes are singular.  “Your” in English can mean “you a single person” or “you, many people” so I want it to be clear that I mean “you a single person, that is your thing”.

Alright, here are some common kinship terms, with a bit of a pronunciation guide:

MOTHER

• nikâwiy – my mother (NI-gah-wee)
• kikâwiy – your mother (KI-gah-wee)

FATHER

• nôhtâwiy – my father (NOOH-tah-wee)
• kôhtâwiy – your father (KOOH-tah-wee)

GRANDMOTHER

• nôhkom – my grandmother (NOOH-gom)
• kôhkom – your grandmother (KOOH-gom)

GRANDFATHER

• nimosôm – my grandfather (NI-mo-soom)
• kimosôm – your grandfather (NI-mo-soom)

Now, I’m just going to stop here for a second, because what I’m about to show you is important.  You can understand a lot about Cree kinship as it is understood culturally if you pay attention to the kinship terms themselves.  At first, if you’re not used to them, the kinship terms can seem awfully complicated, but it all makes cultural sense so you might as well approach it with that in mind.

Remember the word for mother (my mother: nikâwiy and your mother:- my mother: kikâwiy)?  The following kinship term looks an awful lot like these ones, check it out:

AUNT (MOTHER’S SISTER or FATHER’S BROTHER’S WIFE)

• nikâwîs – my mother (NI-gah-wees)
• kikâwîs – your mother (KI-gah-wees)

That’s right, instead of a ‘y’ on the end, you’ve got an ‘s’, changing the end sound from ‘wee’ to ‘wees’.  I won’t go into diminutives right now, but just be aware that this change follows the pattern of diminutives.

But wait a minute…this kinship term has two meanings?  Huh?  What are you trying to do, âpihtawikosisân, scare everyone away?

Cultural lesson…I was taught to think of my mother’s sisters as my mothers.  Not my birth mothers, but as women who definitely held that maternal role in my life.  There was a closer bond to them than there were to my mother’s brothers.  If you need to relate it to English, just think of it as ‘the women in your life who are related to you in a way that gives them a maternal role’.  Those women are my mother’s sisters and my father’s brother’s wives.  My father doesn’t actually have any brothers, but you might be getting the drift.

Let’s try another term:

UNCLE (FATHER’S BROTHER or MOTHER’S SISTER’S HUSBAND)

• nohcâwis – my uncle (NOH-tsah-wis)
• kohcâwis – your uncle (KOH-tsah-wis)

You might be having a harder time seeing the similarity between these terms and the terms for father (my father: nôhtâwiy, your father: kôhtâwiy).  However, this is another change that follows the diminutive pattern that changes every ‘t’ in a word to a ‘c’.

By now you should see the pattern.  If my father actually had brothers, they would also have a paternal role towards me, while my mother’s brothers do not.  Since my mother’s sisters are like mothers to me, it makes sense that their husbands would be like fathers to me.  If my father’s brothers are like fathers to me, then of course their wives would be like mother’s to me.  When I use these kinship terms I actually think of them in my head as my ‘little mothers’ or ‘little fathers’.  Not in a small sense, but just to remind myself of the kinship ties.

So what, opposite sex siblings of my parent’s generation are just chopped liver?

No no, they have their own kinship terms and their own roles.

AUNT (FATHER’S SISTER or MOTHER’S BROTHER’S WIFE or MOTHER-IN-LAW)

• nisikos – my aunt (NI-si-gos)
• kisikos – my aunt (KI-si-gos)

You can see how the translation to ‘my aunt’ sort of fails to really describe the kinship here, right?

My father’s sister is not as close to me in kinship terms as my mother’s sisters are.  This is true in real life as well as it is in terms of kinship, but that’s a fluke.  It could have been that my dad’s sister and I were closer than anyone else but we’re talking about family ties in cultural theory rather than how they may actually turn out.

There is a distance there then, between the opposite sex sibling of my father, while his same sex siblings would be closer to me.  My mother-in-law would have the same degree of distance as my father’s sister.

I do not want to break your brain, but I want to point out that my mother-in-law’s sister would have the same kinship term as she.  Just like my mother’s sisters have a similar relationship to me as my mother does, so would my mother-in-law’s sisters have a similar relationship to me as my mother-in-law.

UNCLE (MOTHER’S BROTHER or FATHER’S SISTER’S HUSBAND or FATHER-IN-LAW)

• nisis – my uncle (ni-SIS)
• kisis – your uncle (ki-SIS)

Again, the distance between my mother’s brothers and my father’s sister is about the same in degree.  Opposite sex siblings do not fill that maternal or parental role the way same sex siblings do.  Their role and relationship to you is different, but not necessarily less important.

I’d like to point out something else here that I have not often seen in practice, at least not among younger generations.  In the old days, you would not speak directly to the opposite sex parent of your spouse.  That means if you are a man, you would not talk to your mother-in-law, and women were not supposed to speak to their father-in-law.  This was a two-way restriction…they weren’t supposed to be talking to you either.  It was very much a matter of respect, and is one of those practices that seems to have been lost.  Now, I have thought about this a fair amount, and I’m not sure it is a practical thing to ‘bring back’, but who knows?

Brain breakage once more…my father-in-law’s brothers would have the same kinship term as my father-in-law.

Well, let’s continue because I’ve got plenty more to confuse you with!  (or if you’re like me, it’s not so much confusing as it is awesome!)

YOUNGER SIBLING (of either gender)

• nisîmis – my younger sibling (NI-see-mis)
• kisîmis – your younger sibling (KI-see-mis)

As you’ll soon see, there are a lot of sibling terms.  You can talk about your siblings in terms of their gender, or in terms of their age compared to yours.  I, personally, am more used to talking about my siblings according to their age rather than their gender and I don’t really know why that is.  I suppose it depends on which terms are used more often in your community.

SIBLING (generic term, either gender)

• nîtisân – my sibling (NEE-ti-sahn)
• kîtisân – your sibling (KEE-ti-sahn)

This term, general as it is, tends to be more useful when used in the  plural to refer to all of your siblings if you have a range of older and younger siblings.  For that reason, I’m going to give you the plural of these terms:

• nîtisânak – my siblings (nee-TI-sahn-uk)
• kîtisânak – your siblings (kee-TI-sahn-uk)

OLDER SISTER

• nimis – my older sister (ni-MIS)
• kimis – your older sister (ki-MIS)

Pretty self-explanatory, I think.

OLDER BROTHER

• nistês – my older brother (ni-STAYS)
• kistês – your older brother (ki-STAYS)

So now you have four kinship terms with which you can refer to your siblings.

BUT WAIT, THERE’S MORE!

What, you thought the confusion ended with same sex siblings being in maternal or parental roles?  Not even!

So consider this.  If your mother’s sisters are like your moms….and your father’s brothers are like your fathers…well, then what are their children to you?

Oh, don’t give me that blank look!  Break it down.  My mother’s sisters are like my mothers.  So their children are like my mother’s children…my siblings.  My father’s brothers are like my fathers. So their children are like my father’s children…my siblings.

PARALLEL COUSIN (MOTHER’S SISTER’S CHILD or FATHER’S BROTHER’S CHILD)

A parallel cousin is a child of the same sex sibling of your mother or father.

• nisîmis – my younger cousin (NI-see-mis)
• kisîmis – your younger cousin (KI-see-mis)

• nîtisân – my cousin (NEE-ti-sahn)
• kîtisân – your cousin (KEE-ti-sahn)

• nimis – my older female cousin (ni-MIS)
• kimis – your older female cousin (ki-MIS)

• nistês – my older male cousin (ni-STAYS)
• kistês – your older male cousin (ki-STAYS)

That’s right, the terms are the same as they are for our siblings, because in fact, these cousins are like our siblings.  They are the children of our mothers and fathers.  They are closer to us than the anglo understanding of ‘cousin’.  Though I did not grow up in a super traditional household, this aspect of my upbringing certainly is true.  My mother’s sister’s children were as close (and annoying) to me as my own brothers, while there has always been a distance between me and my mother’s brother’s children.

So remember…the term you use to refer to your older brother, nistês, is the same term for your father’s brother’s sons and your mother’s sister’s sons.

So what about those ‘distant’ cousins, how do we refer to them?

CROSS COUSIN (MOTHER’S BROTHER’S CHILD or FATHER’S SISTER’S CHILD)

A cross cousin is the child of the opposite sex sibling of your mother or your father.  The kinship term you use is also influenced by whether you yourself are male, or female.

If you are male:

• nîstâw or nîscâs – my older same sex cross cousin (nees-TAHW) (nees-TSAHS)
• kîstâw or kîscâs – your older same sex cross cousin (kees-TAHW) (kees-TSAHS)

These are not totally different words.  I am more used to the latter, but it is a diminutive of the former and which one you use will depend on your community.  So as a male, you are talking about the son of your mother’s brother, or the son of your father’s sister.  The idea to try to focus on is that this cousin is the same sex as you but is no like your brother, but rather somewhat more removed and thus your cousin.

This is also the term you would use to refer to your brother-in-law, who is the same level of closeness as your male cross cousin.  Again, just to point out how I understand the terms and not necessarily the way everyone else does, for me kîstâw is the term I would use for your brother-in-law while kîscâs is what I’d use for your same sex cross cousin.

• nîtim – my older opposite sex cross cousin (NEE-tim)
• kîtim – your older opposite sex cross cousin (KEE-tim)

For you males, this is the daughter of your mother’s brother or the daughter of your father’s sister.

If you are female:

• nicâhkos – my older same sex cross cousin (NI-tsah-kos)
• kicâhkos – your older same sex cross cousin (KI-tsah-kos)

Yes ladies, this is also how you would refer to your sister-in-law.

• nîtim – my older opposite sex cross cousin (NEE-tim)
• kîtim – your older opposite sex cross cousin (KEE-tim)

Lovely term here, because it’s the same as the one males use for their opposite sex cross cousin, whew!

So you have special terms for your cross cousins that are the same sex as you, and necessarily males will have a different male term than females.  However, if your cross cousins are the opposite sex then whether you are male or female, you use the same term.

Whether you are male or female:

• nîcimos – my younger cross cousin (NEE-tsi-mos)

This is a diminutive of the term nîtim.  You cannot tell the gender of the younger cross cousin in question just from the term.  Also note that this term is slang for ‘lover’ or ‘sweetheart’ and is what I call my partner with no connotations of us having a blood relation.

I am only going to introduce two more important kinship terms before I try to wrap it up with a visual.

DAUGHTER

• nitânis – my daughter (NI-dahn-is)
• kitânis – your daughter (KI-dahn-is)

SON

• nikosis – my son (NI-go-sis)
• nikosis – your son (KI-go-sis)

Remember those cousins that are actually like your siblings?  Like my mother’s sister’s daughter who is like my sister.  Well, her kids are also like my sons and daughters, as mine are to hers.  I use the same kinship terms towards her kids as I do my own.

Why? Why are you doing this to me, âpihtawikosisân?

I recognise that all of this can be hard to wrap your head around if it is unfamiliar to you.  When I finally learned these kinship terms, for me it was a glorious epiphany!  You see, while I was surrounded mostly by English as I grew up, there were certain turns of phrase or ‘things we did’ that did not fit into English paradigms.  I sort of thought we were just weird that way and did not value it as a cultural difference until I saw the proof in the language.  These terms were immediately intuitive to me, because I’d already been living them.  If you don’t have that experience then it’s going to be odd at first.

So I want you to try to think of it on generational terms, if you can.  To help, I drew a nice little diagram!

What do you think, less confusing or more?

I didn’t include all the various terms we’ve discussed here because there just isn’t room.  You have the basics now though, and should be able to figure other things out.  Like…if my daughter’s children are my grandchildren, then what are the children of my mother’s sister’s children?  Why…my grandchildren, of course.  After all, their daughters and sons are my daughters and sons kinship-wise.

What would my daughter call the other girls in our family that I also call daughters?

What do you think I would call my grandmother’s sister?  My grandfather’s brother?

I don’t know about you, but I am tuckered out.  Time to go pick up nitânisak.  Maybe next time I’ll show you what terms you use when you’re actually addressing yourself to your relatives (hah, were you thinking you had things mostly figured out already?).

What do you do versus where are you from?

One of the most frequently encountered differences between natives and non-natives is how we greet one another.  When you meet a non-native for the first time, after learning one another’s names, you invariably get asked, “So, what do you do?”

I’ve always felt uneasy about this question.  They mean of course, “what kind of job do you have”.  I never really understood how this was relevant.  What did it tell people about me when I said I was a university student?  What did people know about me when I said I was a teacher?  Why did they react to me so differently when years later I said, “I’m a single mother”?

Well, I sure noticed a difference when I ‘became” a single mother.  The reactions ranged from surprise at my supposed youth, to pity and dismissal.  Never mind that I had a Bachelor of Education behind me and solid work experience.  Never mind that I was studying Law at the time.  Never mind that I wasn’t on welfare, that I wasn’t a slut, that I wasn’t whatever it was those pitying minds believed about me.

We ask questions of those we have just met so that we can figure out who they are in relation to us.  At least, that’s my theory.  So when non-natives ask you, “what do you do”, how are they classifying you?  Productive?  Non-productive?  Lazy, stupid, intelligent, desirable, not worthy…what?  I suppose the criteria changes depending on who is doing the asking, but I am still taken aback when a truthful answer causes the asker to either withdraw or cozy up to the askee.  I often think of it as a less honest form of the way Japanese business men supposedly gauge one another’s relative importance based on a quick scan of the other person’s business card.

Native people, on the other hand, don’t bother with the “what do you do”.  Not until more important questions are answered at least.  Like, “where are you from?” and “who are your parents?”

Meeting a native person for the first time is an exploration of family ties.  You start by exchanging information about your communities, so there is a geographic starting point.  You give your last name to link you to your family.  If you’ve got your father’s surname, you bring in your mother’s surname too.  If there isn’t an immediate recognition of your family, then you go a bit further abroad.  You list the dominant families in  your lines until one or more are recognised.  Then you narrow things down, “no, from his second wife” or “no, that was her sister-in-law”.  Among natives who know their families and didn’t have those ties severed through adoption, I think I’ve only failed to find a common relative maybe three or four times.  Only one of those times did we not know anyone from the other person’s family at all, and I have no doubt that if I’d talked to my mom about it, we’d have found someone.

I don’t go around trying to sniff out ‘fakers’, because honestly who has time to care, but you sure can tell quickly when someone is trying to ‘pass’ as native.  I didn’t run into this in Alberta much, so it wasn’t until I came to Montreal that I realised anyone would want to pretend to be Indian in the first place.  Coming from where I do, you get used to natives with blonde hair or freckles or all sorts of interesting mixtures so when someone says they’re native, I tend to take them at face value.  And let’s not forget that there are plenty of natives out there who had their family ties severed or obscured, and who are legitimately unsure of their kinship ties.  But in the main, even those people are used to being asked, “where are you from” and “who are your parents”.  So maybe I’m stepping on too many toes here as it is, because there is a wonderful variety of experiences and understandings of what it means to be native that I don’t want to mess with really.  I just found that there are a few people out there who seem to be very interested in natives and want to learn all about ‘native culture’ but who couldn’t tell you where their family is from or who in their family is native or anything like that and it sort of rings bells, you know?

Well, that isn’t what we’re doing when we start talking family.  We’re not really figuring out “is this person native or not”.  But we are locating ourselves within that other person’s life.  At least, that’s how I feel.  How many times to you run into someone for the first time who then starts calling you ‘cousin’?  In anglo-Canadian fashion that person probably isn’t even related to you at all anymore, but if you’re in the same generation and you’ve found common family then yup, you’ve gained another cousin and no one can tell you differently!

Oh but it’s more than that.  Especially when you’re talking to older people.  You learn things about your family that maybe you never knew.  Some of those older generations have minds like steel traps…they figure out whose daughter you are, and suddenly you’re listening in amazement to a story about your mother’s uncle, or your grandfather, or your great-great-grandmother.  Priceless family information stored in the memories of another.  It’s happened enough now that it doesn’t shock me anymore, but it still amazes me.  I’ve seen friends whose family history got lost past the last three generations or so, and who were able to pick it up again after an introduction to someone from the area. Learning that your great-great grandmother married a Lennie from Fort Smith and then moved down to Richmond, BC can be a serious revelation for a family that’s been a bit out of touch.  Sometimes it can really illuminate some of your family traditions.

Going back to what it means to be a “single mother”.  When a native learns I’m a single mom, I don’t get the pitying look, I get the nod of understanding.  By the standards of my community, I was old when I had my first child. Twenty-four, when my cousins and friends were having kids in their teens.  By the standards of the middle-class mostly anglo community I live in here in Montreal, I’m still a young pup!  Women here often don’t have their kids until they’re in their late thirties, and even into their forties.  Cha, I remember when my mom turned 32 and I thought, man that’s old!

Non-natives often seem to see my status as a single mother as some sort of detriment, a handicap.  I’m sometimes praised for how “hard it must be” to have kids and be doing other things like working and going to school.  I sometimes get that from natives, but it’s not amazement or surprise that comes with it, it’s an acceptance that we women work hard and that’s just how it is.  Most of them have done it too, or had female relations who have struggled through single-motherhood as well.  So yes I guess that means that a lot of us native women end up “single moms” either from the get-go or later on when things don’t work out with our partners.  But we still have our kinship ties.  I think non-natives assume we single moms are all alone or something.  Cut-off and isolated.  Sure, we can be…if you cut us off and isolate us because we’re single moms.

I went through a brief period where I didn’t mention my kids, just to see how the reactions differed.  Non-natives went with it happily, focusing on me being a law student and chatting comfortably about their own studies or work.  Natives just came right out and asked if I had kids and the gig was up.  I’m not saying that I’d be judged negatively by other natives if I didn’t have children.  But what I do is a lot less important than who I am, and like a spider web, I’m just one thread in a much larger and very interconnected weaving.

I try not to ask anyone “what do you do”.  I like hearing where they are from, and if they weren’t born here, what brought them to Montreal.  That’s always a much more interesting story than what they do for a living.  I’ve found that non-natives are often taken by surprise by the opening question, but soon enthusiastically start telling you about who they are, not what they do…which is great because I have a much easier time remembering “oh, she’s the one from Regina with the Dutch father and the second-generation Italian mother” instead of “oh, she’s the one who used to do telemarketing but is now doing stage sets”.

I’m not saying one way is better than the other, but one way is more familiar than the other, and draws me into the life of the person I’m meeting instead of making me feel like I’ve got to pass a test before I “get in”.

ninikamon

ninikamon, I sing.

About thirteen years ago, I finally picked up a guitar and started to learn how to play.  I can’t say that over a decade of playing has made me a particularly proficient guitarist though.  At times I have spent up to five hours a day practising, and then in other periods of my life I sometimes go months without touching the guitar.  I do not consider myself a musician.  It’s not something I do to make a living, and it isn’t something I want to do as a living.  It’s a hobby, pure and simple.

The guitar was a means to an end.  I wanted to sing.  I did not always have that desire.  Oh, I always loved music and I have always loved playing music whether it was on the piano or on the flute, but I didn’t care much for singing.

That is, until I heard Violeta Parra sing.

Violeta Parra

My ex-husband is Chilean, and he had given me a mix tape of Chilean folkloric music, all part of the Nueva Canción or New Song movement. I was learning Spanish at the time and he thought it would help to listen to songs in Spanish.  It did so much more than that.

The first time I heard Violeta’s raw voice I felt pierced through and through.  I did not even understand all her words.  She made references to things I would only learn about later.  But the sound.  It wasn’t polished.  It wasn’t complicated.  But it was real.

I became obsessed with her, with her life, with her music.  I sat in front of the tape player and rewound, listened, rewound, listened.  I borrowed a guitar and my ex taught me a few chords to get me started.  I probably only knew how to play four or five chords for a very long time, but it was enough.  I sat there with my borrowed guitar and Violeta’s voice and I learned her songs.

She travelled around the countryside of Chile, learning old songs and keeping them alive.  She helped create a thriving artistic community that both revived and recreated folklore in Latin America.  Sibling of many, mother to many, inspiration to many more, she also created beautiful works of art.  She was the first Latin American female artist to be shown at the Louvre.  Through her, I learned about the Mapuche people of southern Chile and Argentina.  Through her I learned about Chile’s turbulent history and its tortured relationship with copper.  I learned that you can capture the sound of a heart breaking.

She died before the first September 11, before the coup of 1973 when Salvador Allende’s life ended in violence and General Pinochet unleashed a reign of terror on the Chilean people.  She took her own life five years before her good friend and fellow musician, Victor Jara, had his hands broken by Pinochet’s thugs after which they got around to murdering him.  This amazing woman who accomplished so much was also a tortured soul, someone who perhaps felt too strongly at times.  But it made her who she was.

I sing because she sang.  Because she made me feel that I could.

For years I learned her songs, and the songs of other Nueva Canción or Nueva Trova artists, like Victor Jara, Inti-illimani, Quilapayún, Quelentaro, Patricio Manns, Atahualpa Yupanquí, Silvio Rodriquez and so many more.  For over a decade, almost all the music I listened to was Latin American folklore.  I learned about refalosas, tonadas, periconas, coplas, cuecas, sirillas and all the other musical styles and dances associated with the kinds of music I was listening to.  Wait, no, I didn’t learn how to dance them!  I just learned that there were dances that went with each style.  Except perhaps the coplas, which are these amazing spoken/sung songs often accompanied by incredibly intricate guitar playing.

Of course, I wanted to write my own songs.  I tried writing in English.  Hated it.  I tried writing in Spanish.  Better, but still not right.  Finally, I took this Latin American folkloric style of guitar playing, and I began writing songs in Cree.

There.  That felt right.  Now I was saying something worth saying.

When I perform, I try to make that link between what influenced me to begin singing and what I sing now.  I like to perform the songs that first inspired me so that you can hear the similarities.  In part it is to remain honest about my influences, but it is also to honour the work of these artists.

One of the most…amazing moments I have experienced while singing was during an Anishinabek Constitutional conference in Nipissing.  I was not performing there, but I did share my grandmother’s honour song.  When I said I would be doing this, everyone stood up, because they all knew what an honour song was.  It was a simple thing, but for me it was powerful.  I did not have to explain anything because I was among people who knew.  It was in Nipissing that I learned how similar Anishinaabemowin is to our Cree.

I am learning through trial and error when and where to play.  I have discovered that sometimes, native artists are engaged in order to bring ‘legitimacy’ to the work that non-natives do, either ‘on our behalf’ or in other areas labelled as social justice.  That can be incredibly confusing and frustrating.  I have learned to trust my gut feelings about these invitations, but sometimes I don’t notice until I’m already doing it. I have learned that I do not ever again want to play my grandmother’s honour song in front of a room of people getting drunk.

I have also learned that audiences are far more forgiving than I am of my mistakes and off days.  I love playing for other native people, or for non-natives who are honestly interested in our cultures.  I love joking with them about the themes of the songs.  I love singing in my language.

I have not learned how to take compliments.  When I have finished singing, I want to melt away and be ignored.  I have never learned how to gracefully accept praise.  I confuse praise with bragging, as though somehow another person’s enjoyment of my songs means I am getting a big head.  Cree humility is a strong thing, no matter how we tease and joke.  I do not think I am a good musician.  I do think that I am adequate, and I hope that I inspire other people to share their songs, and their languages.

kinikamon cî.

Our stories, our law.

I’m sitting in a hotel in Fort St. John, BC wondering what to do with myself now that my flight has been delayed.  I’ve been sick for nearly two weeks now and I’m not exactly feeling up to seeing the sights…especially since there doesn’t seem to be any place here to buy seed beads!

It’s my first time in Treaty 8 territory on the BC side, and I came here for an amazing conference– or rather “An Exploratory Workshop: Thinking About and Practicing With Indigenous Legal Traditions“. In a nutshell, what we did was take indigenous stories and historical accounts, and we analysed them using the case-brief method that one is taught in common-law training.  This way, we can begin to identify certain principles that form the foundation of individual indigenous legal traditions.

The case brief method asks you to break down the story (or legal case) in the following way:

• What is the problem or issue in the story?
• What are the relevant facts (what happens)?
• What was the decision or resolution?
• What is the reason for this decision or resolution?

It is a deceptively simple process.  It it also a familiar one in many ways.  I remember thinking about the stories I was told, and asking myself, “why did that happen?  What went wrong?”.  My daughters do the same thing today.  They say things like, “Oh, he shouldn’t have done that!  He was greedy and look what it got him!”

However, that almost unconscious recognition of certain principles being applied in these stories is not quite the same as consciously and actively drawing those principles out and seeing them more clearly.  The principles we find in these stories are not unfamiliar to most native people, but when contrasted with western legal norms there are certainly some major divergences.

What I found particularly inspiring is that as a large group of people analysing these stories, we were all able to identify similar principles at play.  Other workshops had been conducted previously and we got a glimpse at some of the earlier work done as well.  The principles those groups identified were pretty bang on with what we came up with.  In this way, I felt that it was clear we were not merely projecting our individual beliefs onto the stories.  There were a fair number of non-native participants in this as well, so I do not even think we could be accused of all ‘thinking native’ and reading more into the stories than was actually there.

This was inspiring because it validated the process, and it allowed us to look at these stories in a way that the Canadian state has not yet figured out how to.  It highlighted that our priorities are different than western legal and social systems.  Different, but not incomprehensible.  Not confused.  Not stuck in the past and inapplicable to modern times.

What was particularly satisfying for me was that although there were shared legal principles across Cree, Anishinabek and Dene traditions, there were also some clear differences.  No pan-Indianism here!  I expect even greater divergences between other native peoples, particularly after reading Val Napoleon’s excellent dissertation on the Gitksan, “Ayook: Gitksan legal order, law and legal theory“.  This dissertation really goes into some breathtaking detail about substantive and procedural legal rights and practices in the Gitksan culture, and highlights for me just how unique we are as peoples.  Even if you just skim it, going for the stories she analyses, it’s a fascinating and important read.

A Quechua professor from Peru also joined us at the conference, Antonio Peña Jumpa (I link here to his blog, which is of course in Spanish).  He has been studying the legal traditions of a number of indigenous groups in Peru, but mentioned that for political reasons he has been unable to do the same work with his own people.  I assume, but do not really know, that this is an academic restriction that takes the position that you should not be a member of the people you study.  I think it’s a stupid rule, ’nuff said.

Antonio presented to us an outline of the complex Aymara legal tradition.  Another presenter, Isabel Altamirano-Jiménez who is Zapotec, discussed the role of women and water in her people’s traditions.  Both speakers discussed the ways in which indigenous legal traditions have been supplanted and undermined by the imposition of western legal traditions.  A very familiar theme.

Oddly enough, Isabel’s presentation reminded me of a book I bought my girls years ago, “The Woman Who Outshone the Sun“.  Now, this book purports to be a Zaptoec story, but I don’t recall it saying which community the story was from and it says it is based on a poem, so its origins are somewhat suspect.  Nonetheless, the story really focuses on water and on the woman’s role in relation to protecting and nurturing the water.  I think I’ll read it again, with slightly different eyes this time.

In any case, the workshop stressed that this is just one method, one out of many that are yet to come, to help us revitalise and reapply our indigenous legal traditions.  I think it was a very clear way of showing us in a tangible sense that our values and our traditions are valid and applicable to conflicts we continue to have today.  We can approach our problems from a legal tradition that sits well with us, and that takes into consideration the values we hold as individual peoples.  Isn’t that what the law should do?  Reflect our values and strengthen our communities?  It’s certainly not what the western legal traditions have done and no wonder.

One thing that kept coming to mind this weekend, was how many thousands of different legal traditions there are all around the world.  We often do not recognise this.  When we do hear of other legal traditions, particularly those that are considered ‘tribal’, it is usually horror stories we’re hearing.  Rape-victims being forced to marry their rapists.  Etc, etc, etc.  Of course, so many of these stories confuse colonially imposed legal traditions with indigenous traditions, and worse present only the ‘bad decisions’, often without any context at all.

If all we chose to present from the Canadian legal systems were the horror stories, it is undeniable that those reading these stories would condemn the Canadian systems as barbaric, primitive, and unsuited to a modern era.

Of course that is not what is done.  Instead, the Canadian systems are seen as somewhat flawed, but ultimately best suited to Canadian context and to Canadian values.

Not our values, obviously, but we are of the ‘barbaric, primitive and unsuited to a modern era’, right?

Legal diversity is seen as weakness.  Anarchy.  Confusion.  Despite the fact that diversity of legal systems has always been, and continues to be, a reality all over this earth.  It is important not to forget that fact.

Alright, time to pack up and head to the airport.  Thank you, Treaty 8, for your most excellent hospitality!   Many thanks in particular to the amazing women who worked the hot kitchen of the Fort St. John’s Native Friendship Centre for two and a half days straight to feed us such an abundance of food that it was impossible to finish it all!  I definitely got my fry-bread fix!

ihkwak

It’s been quite a while since my last post, but life is life and it sometimes demands more attention than you feel willing to give.  I am back in Montreal, the girls are back in school and things are busy busy busy…

Well they are even busier now that I’ve found ihkwak in the hair of my youngest daughter and my partner’s two daughters.  My eldest thankfully seems to have been spared for now.  Ah ihkwak (lice)… how familiar and commonplace you have become!

I don’t think I ever had lice growing up.  There was a massive stigma surrounding lice though, and having lice was very often associated with being native.  I remember that well.  I remember being accused of having lice and how awful that felt.  I remember  when some of my friends actually did have it, and the fear that this caused me and my parents.  I remember hearing parents of classmates talking in disgusted tones about how “Indians” were always bringing lice to school and didn’t they wash their hair?

So it is interesting to me to see how the issue of lice is treated now and how different the attitudes seem to be.  This is not my first time battling the ihkwak either.  I casually stripped the bedlinens, I used the shampoo, and I spent the more important hours nitpicking each tiny translucent egg I could find from the three girls’ heads. ninihtâ-nitihkomâtêwak, I am good at lice hunting now.  But it wasn’t always so.

The first time lice came into my home, I thought I was going to have a complete meltdown.  By the way, feeling itchy yet?  Yes.  That is the worst part of it, the way you start obsessing about the little critters.

That first time, I had no idea what to do.  I wasn’t allowed to send my daughter back to school until it was dealt with.  I felt so alone and incapable of dealing with the problem!  I remembered hearing about drastic home remedies like kerosene, or vaseline which was supposed to smother the nymphs (live lice).  I went to the closest pharmacy and feeling a deep shame, I asked for help.  I did not understand at the time how the pharmacist could approach the issue so casually…I felt like it was one of the most awful shameful things ever!

I brought home a lice shampoo, Nix, and went to work.  I stripped all the beds, washed clothes like a fiend, vacuumed the carpets and seriously considered having them all steam cleaned.  I thought about throwing out the couches.  I combed my daughter’s hair with the lice comb and tossed and turned all night, obsessing.  It was truly awful.

What I didn’t understand then was that most of what I had been spending time doing, scouring the house and nearly boiling all our clothes, was really not an effective method of lice control.  Like some of my older relations told me when I started phoning around in a teary panic, the best thing you can do is spend your time nitpicking.

It took me a while to defeat that infestation and it was largely due to their father’s family who took that time and checked their hair over and over, finding the infinitesimally tiny little eggs I had missed.  I was a crappy nit hunter then!

Something else I quickly discovered is that my ultimate shame was… actually not a big deal.  The daycare centres and the schools are (unfortunately) very well acquainted with lice, and it has become such a wide-spread issue that it is almost impossible to maintain old prejudices about class, race and cleanliness in the face of the louse’s indiscriminate attitudes.  Oh, you will still find mothers and fathers recoiling in terror and acting like your kids are some sort of abominations if they hear they’ve ever had lice…but I guarantee you that after a few years of having kids in school, they’re going to get over it fast.

The schools educate the children about lice too.  Lice actually like clean hair.  Despite what your eco-friendly friends believe, there is no evidence that tea-tree oil repels them at all (so ditch the expensive shampoos and sprays). You can’t smother lice with creams or oils because the nits don’t breath anyway and the nymphs as so tiny that they can find pockets of air AND hold their breath for serious amounts of time.  Kerosene is an awful thing to put on a child’s head, and stupid dangerous to boot.  Go ahead and shave their heads if they think it’ll be cool, but don’t convince yourself that the easy route is the best one.

The shampoos are scary powerful, so I am cautious.  I did some research and found that pharmacists often suggest the less powerful shampoo first, then move you up the products until you’re putting some serious chemicals near the skin of your child.  I have come to the conclusion that this only becomes necessary if you aren’t nitpicking properly.  Believe me, no matter how many chemicals you put on your kids head, you are only going to at best kill the live lice.  You will still have to hunt out the eggs before they hatch or it’s all in vain.

So it was that when I found lice yesterday, I took it in stride.  Been there, done that, got the freaking t-shirt.  A good pinahihkwâkan (lice comb) is a boon, but won’t actually do the work for you.  Those nits are so tiny that you’ll think it’s just a speck of dandruff, and no lice comb has tines fine enough to scrape that sucker off the single strand of hair it is firmly glued to.  You use the shampoo to kill the live lice, but really they don’t die right away (and sometimes not at all).  They just become sluggish.  The lice comb will clear them out for you, but your bigger job is yet to come.

Get yourself a good source of light, give your child a book to read, and more methodically than you think possible or necessary, you sit down and go through literally every strand of hair.  At first you’re not going to know what you’re looking for, but I can spot a nit no problem now.  They are often the colour of amber, and they shine in a way that dandruff does not.  They will be near the root of the hair, at most a centimetre down the shaft and you are going to miss some.  Accept that and recognise that this long session of hair combing and examination is just the first in a series of bonding moments with you and your child. The lice comb often will simple allow the nit to pass between its teeth.  Grab that sucker with your nails and scrape it off, and dispose of it in a cup of water just so it doesn’t go flying somewhere else.  You’ll have a hard time seeing it at all once you’ve gotten it off, they are that small.

The first time my daughter had lice, she was a wreck because I was a wreck.  This time, she knows she did nothing wrong.  She knows that the child she got it from isn’t a dirty, poor kid either.  This stuff spreads around fast and easy and it’s hell to get rid of.  I think more parents need to understand this.  Honestly, I think the schools should be giving parents nitpicking lessons at the beginning of every year.

In a way I think it’s rather interesting that with all our antibacterial soaps and chemicals and industry focused on cleaning products that we are no further along with this problem than we ever really have been.  Mothers have been scraping lice eggs out of their children’s hair for thousands upon thousands of years and no amount of technology has improved upon this method.  It’s not a pleasant thing to be sure, but I’ll tell you from experience that the stress level declines dramatically when you don’t take it to heart.  Categorise this as something you have to do when your kids aren’t confined to their rooms for their entire childhood.  It’s just One Of Those Things You Do.

nitâ natohtawin, a song for my daughter

nitâ natohtawin

mâna nikî-sâkihâw

kôhtâwiy, mâka

êkâ ê-kî-sâkihêwêyân.

nitâ kiwâpamâw

kikâwiy ana iskwêw

kimôhcikihâw

kisâkihâw, kisâkihitin.

pipohki kika-kawacîn

piko tihkisa kitêh

tânitahto-pipon

nitêh asinîwiw.

sâkihiso, nitâ, sâkihiso.

 

manitow-sâkahikanihk ohci nîya

I haven’t been home in two years.  It surprises me that this is the longest I have ever been away from home.  Even when I was living in Inuvik, I flew down south at least twice a year, sometimes more.

Moving to Quebec has required a lot of transition.  During my second semester at McGill, I stopped attending law classes entirely in favour of full time French language studies at the Centre St. Louis. I was still enrolled at McGill, but just showed up to write the finals at the end of the semester.  I had decided that gaining some more practical French fluency was more important to my mental health.

When you immigrate to Canada, part of the fees you pay help fund language programs that you can then access for basically just the cost of the materials.  All over this country, newcomers to Canada are sitting in classrooms learning English so they can better integrate and function in their new home.  So it is too with Quebec, only the language of instruction here is French.

Thus I took advantage of a truly excellent program.  Whether you are new to Canada entirely, or are from out-of-province, this program allows you to study French full time for the cost of materials ($50).  I found the instructors to be excellent and practical, helping us with the local pronunciations and idioms and providing us with the day to day vocabulary we need in order to carry out the basic tasks of daily living.  I spoke a lot of Spanish as well during the breaks as there we many hispanophones at the school.  Because I have spent so many years surrounded by latinos, this really made me feel more comfortable in Montreal.

I don’t know when I finally realised it, but at some point I understood that I was truly going through the immigrant experience.  I have seen these transitions before so many times…have translated for people who really needed to be understood at offices or in health-care clinics, and there I was going through something very similar.  I had been extremely frustrated by the fact that although I had studied 3 years and gotten an LLB, my law credentials didn’t mean much here in a civil law jurisdiction.  I haven’t had to start completely over, but McGill only accepted my degree as being equivalent to a year in their degree program.  So I would sit in French class with professionals from Mexico, Egypt, England and so on, all of us having to start over in many ways.

Once I started to think of myself as an immigrant, my outlook actually became a lot more positive.  I had this expectation as a Canadian that moving to Quebec would just be a linguistic transition, but it isn’t that simple.  There really is a different culture here.  It is not such an alien culture, no more alien to me than anglo-Canadian culture really.  However, the difference is big enough to merit a fair amount of effort on my part to fit in and adjust.  No point in getting upset about it, this is just how it is.  Although…the utter lack of good fried chicken is something I will never adjust to.  NEVER!!!!

I know that living here these past two years has changed me in ways that I can’t really see yet.  It is not just the ubiquitous bilingualism that I have become so accustomed to here, or my new passion for poutine and Portuguese BBQ chicken, the queuing that Montréalais do at the buses and trains (Edmontonians sort of rush public transit en masse)…the way I have become used to narrow streets and three-rises and the most excellent bagels known to humankind, my love of the dépanneurs on every corner where I can take my empty beer bottles back for a reduced price on the next microbrewed six pack…it is somehow the sum of all these things and so much more.

I am going home this weekend for a month, and I suspect those changes will become apparent during my visit.  I will visit the shores of Lac Ste. Anne again, visiting friends and family during the annual Pilgrimage.  I am not a Catholic, but I respect that many of our people are very devout, and there is room for us all.  manitow-sâkahikan is the Cree name for our lake, and it is my home, my territory, the place where my roots are strongest.

Mountie tipi and shrine

Oblate priest

Blessing the lake

Going home during the most important annual gathering in our territory is something that I am very much looking forward to.  I have a lot of work to do while I am on ‘vacation’…I have been saving up my energy to throw myself into my language projects and being in an area where I can access Plains Cree speakers is vital to that.

When my four weeks are over, I will come back to Montreal.  I hope to return refreshed, renewed, and revitalised.  I do not think I could last here in Montreal another year without this trip.  That is not an indictment of this wonderful city mind you, it is merely a recognition that so much of who I am and what I do is wrapped up in the physical and cultural location of Lac Ste. Anne.

manitow-sâkahikanihk ohci nîya êkwa êkîwêyân.

Let’s all do the Limbo!

Without Prejudice agreements

Some legal jargon seems to go viral.  “Without Prejudice” is definitely one of those viral terms.  You will see it slapped up there across emails, documents, agreements…like some sort of ‘keep-the-court-at-bay’ incantation that people mumble without even really thinking about it anymore.

In essence, the concept of “Without Prejudice” is that whatever it is you’ve written or discussed cannot be used in court.  If you research the term and its history you’ll see there are loads of opinions on the purpose of this protection, but I tend to go with the notion that it’s there to allow a free discussion between parties who have some sort of disagreement.  It allows you to talk about things without admitting to facts or guilt or worrying about saying something that will hang you if the issue ends up in court.  You sit at the table and you hammer out details and maybe you scream at each other a little, but it’s ‘safe place to talk’, whether you do the talking face to face or within the space of a piece of paper.

“Without Prejudice” is not an absolute protection and there are all sorts of ways that it won’t actually protect you, but that’s not really the point of this section.  (Although I do think it’s rather hilarious that it has become such a reflex addition that practitioners will, on occasion, attempt to file a court document with “Without Prejudice” splayed across the top.)  What I want to draw your attention to instead are a new breed of negotiated agreements between the Crown and native peoples.

Without Prejudice agreements can be fantastic when they are some sort of formal commitment between the parties to engage in a process of negotiating long-standing issues like how Aboriginal rights are going to be specifically exercised in a particular area.  The Mi’kmaq-Nova Scotia-Canada Framework Agreement is an example of this.  The idea is that Canada isn’t going to worry about whether or not the Mi’kmaq have actually proven they have specific Aboriginal rights, but they aren’t going to agree either that the Mi’kmaq do have such rights.  All of that is put aside, and a variety of practical areas are put on the table for discussion so that immediate issues and problems can be dealt with in a timely manner.  This avoids the decades-long court process of proving rights first, then planning implementation after.

Where these Without Prejudice agreements fail, in my opinion, is when they go beyond being temporary measures meant to address immediate, specific problems, and end up spanning a decade or more.  Why does that bother me?

Imagine this situation.  You’ve got a First Nation asserting the right to a traditional hunting territory on a particular river.  That river is a also a hotbed of commercial fishing by non-natives who have all sorts of licenses granted to them by the government in order to haul fish out.  The First Nation would like a commercial fishery too, but they know they’d be raked over the coals financially and in terms of time if they wanted to prove an Aboriginal right to commercial fishing in court.  The community knows damn well it used to trade fish long before Europeans arrived, but the mountains of evidence required to establish the existence of such a right is daunting.  They need in NOW because as it stands, they have next to no access anymore.

So this First Nation approaches the Minister in question and requests a meeting.  They are hugely lucky and end up getting into a negotiation over access.  The Crown pushes over a piece of paper that says this:

This Agreement is without prejudice to the First Nation’s Aboriginal or Treaty rights … and shall not be construed as admissions of fact or liability.

This Agreement is deemed not to recognize, deny, create, define, alter or affect the First Nation’s Aboriginal or Treaty rights.

Now, this protects the First Nation from signing onto an agreement that could end up extinguishing their rights.  They aren’t agreeing to be forever limited by whatever negotiated fishing regime that ends up being applied, and they aren’t agreeing to be forever bound.  This also protects Canada because Canada isn’t admitting the First Nation has any rights (they aren’t denying it either).

The First Nation gets a small cut of the commercial fishery without having to prove it has Aboriginal rights and the Crown doesn’t have to go to court saying no Aboriginal rights exist.  Except as years pass by, the First Nation is fishing without officially exercising their Aboriginal rights.  They are exercising their right to fish as granted under the Without Prejudice agreement.

If you have a First Nation sitting there in a rights limbo for a decade, two decades…at what point would the courts eventually say, “look you’ve accepted this arrangement, the arrangement creates certainty and balances your rights against the rights of non-natives, and you haven’t really exercised your Aboriginal right in 15 years or so.  I think we can safely say that whatever rights you may have had are no longer exercisable beyond the current regime you are a part of.  Thank you, and please tip the clerk on the way out.”

Canada!  The Honour of the Crown is not well served by creating these limbo-agreements that stretch on for freaking ever!  Stop putting off the real discussions that need to happen before there can actually be a healthy and respectful relationship between you and the various indigenous nations in Canada!  The issue of Aboriginal rights is not going to go away.

If I were even more cynical (I am), I’d worry about this: although not exercising a right does not mean that right is extinguished, it can allow a ‘legitimate’ regime to be built up that has been created with the consultation of the First Nation in question even if the Without Prejudice agreement says that the agreement shouldn’t be seen as ‘consultation for the purposes of infringement’.  I’d worry that if this is not the purpose of these agreements, then it is at least a happy side-effect for the Crown.

The problem is, you start asking practitioners about this, and you soon realise that they have no freaking real idea what these Without Prejudice agreements mean for Aboriginal rights down the line, and that scares me.

Many of these agreements are entered into a stop-gap measures.  Like in the hypothetical I provided earlier, sometimes communities sign on to agreements that are not all that wonderful because the only other option at that point is to not sign and be cut out of the harvest entirely.  They sign on for a year or two, needing and wanting to negotiate something more substantial, but somehow the agreements just keep getting renewed and the real issue of Aboriginal rights is never addressed.  You see this a lot in the post-Marshall agreements in particular.

So what should we do instead?

I like a multi-faceted approach.  My boss likes to say that lightning will not come out of the sky and strike you down for creating your own laws.  The Listuguj Mi’gmaq are proof of this.

Back in 1981, the Canadian state engaged in a particularly brutal show of force on the Listuguj reserve over access to salmon.  Having police officers beating your neighbours down out of the blue sure does something for your sense of cohesion and political awareness.  After this traumatic experience, Listuguj decided to take control of its own fisheries, implementing laws and training local people to manage the salmon stocks.

A report on this exercise of Aboriginal rights and of indigenous legal authority has recently been released, and believe me, it’s no snoozer.  You can check it out here (PDF).

The Listuguj Mi’gmaq are exercising their Aboriginal rights, not just setting them aside for now.  They aren’t the only ones doing this, either.

I’d like to see some real Treaty making.  I discussed this in my last post.  Not like the “Modern Treaty” process that continues to take an unequal, colonial approach regardless of the claims to the contrary.  Stop telling us we aren’t ready to do things like manage a fishery.  Hey, Department of Fisheries and Oceans!  You don’t exactly have a stellar track record from which to look down your noses at us.

Time to move beyond Without Prejudice

Whew, I’m veering into rant mode, and that’s not going to get me anywhere.  Let’s just say that I think we need to start addressing what these long-term Without Prejudice agreements mean both in terms of their impact on the exercise of Aboriginal rights down the line, but more importantly in terms of what kind of relationship Canada actually wants to have with native peoples.

We know that the bulk of recommendations provided by the Royal Commission on Aboriginal Peoples (RCAP) were never implemented.  I’d link to those recommendations btw, except they aren’t currently available on the website.  I’m hoping that’s temporary.  Anyway, the RCAP talked about a 20 year commitment to creating a new relationship.  Tick, tock…15 years have gone by already.

Without Prejudice agreements are great if they are a stepping stone towards something better, but we got stalled somewhere along the way and the incantation is losing its power.