"Other Materials"--Traitorous Love and Decolonizing the Canadian Guide to Uniform Legal Citation.

Date22 September 2022
AuthorLussier, Danielle

CONTENTS

Relationality Statement 5 Introduction 8 Indigenous Representation In the Canadian Legal Landscape 11 Citational Politics In the Legal Academy 14 Where to Begin With An Indigenous Legal Citation Style? 16 Citing Indigenous Oral Knowledge 17 Citing Indigenous Extra-Intellectual Knowledge 20 Citing Wampum 22 Citing Personal Knowledge and Dreams 23 Next Steps Towards Decolonizing Legal Citation 25 RELATIONALITY STATEMENT

As members of the legal profession, we must seek to acknowledge and confront our past and present contributions to, and complicity in, the ongoing colonization of Indigenous peoples and lands. We purposely use "we" because the process of decolonization is impossible to engage in alone. While personal engagement is integral to decolonial thought and action, it alone will not accomplish decolonial objectives. (1) To attempt decolonial action solely as individuals would be to perpetuate and reinforce the hyper-individualistic mindset that breeds colonial constructions of society in the first place. (2) In contrast, decolonial action is "derived from a web of consensual relationships that is infused with movement (kinetic) through lived experiences and embodiment." (3) These consensual relationships help us to address gaps in our legal knowledge and practice that we may not consciously appreciate. (4)

In fact, to do decolonial action as a collective, across Indigenous-settler and more than human relations, "allows us to move together and address renewal of our relationships." (5) This renewal can occur at multiple sites of life and living, including friendships, (6) kinship, (7) lands, water, and relations with more than human entities, (8) and ideally through Indigenous-state relations. (9) Exploring these sites in our own lives is what Dwayne Donald refers to as ethical relationality in which we acknowledge all relations that support life. (10) Grounding decolonial work in ethical relationality allows us to see where we come from and where we are going, and informs the ways in which we can contribute to the resistance of colonial progression. (11)

Despite the inherently relational nature of law and legal education, Western academia typically discourages us from self-identifying in our work and fails miserably at understanding the important relationships and enduring bonds that can form between educators and Learners. As Dr. Aaron Mills states, academia would have us believe that our words exist as self-producing sentences removed from our personal histories and connections to the topics on which we write (12) We resist these colonial notions by situating our identities and our relationships here, from the outset.

Dr. Danielle Lussier (she/her/elle) is Red River Metis, born and raised in the homeland of the Metis Nation on Treaty 1 Territory, who now raises her three children as a citizen of the diaspora and a long-term visitor on on the shores of Lake Ontario. She holds a PhD in Law, and her research considers the development of Indigenous legal pedagogies, the role decolonized methodologies can play in the revitalization of Indigenous legal orders and valorizing of Indigenous knowledge systems, and the pathways towards the decolonization of legal education and the legal profession. She believes there is room for Indigenous ways of knowing, including the foundational law of love, in the practice of law and legal education.

Steven Stechly (they/them) is a graduate of McGill University with a BASc in Psychology and Political Science and a current Learner in the JD program at the University of Ottawa. Steven is the descendant of Polish refugees and is deeply connected to the British Isles, from where their maternal family originates.

We state our backgrounds both to position ourselves within the work and to meet specific ethical and community needs. For Danielle, a statement of relationality is critical to provide context to her position within both communities and the academy. For Steven, they have used this moment to interrogate their identity as a "Canadian" and better understand how they came "to" rather than "from" this land. Steven is also a proud queer and non-binary person, which they believe inherently shapes their lived experiences and relationships; this mirrors Danielle's experience of her own identities as an Auntie, mother, and long-term visitor on someone else's territory, shaping her understandings of law and legal learning.

We are connected through a complex web of relationships developed at the Faculty of Law at the University of Ottawa, beginning in the autumn of 2019. Our relationship is the result of reciprocal learning and support on a journey of decolonizing legal education. The dialogue that follows documents and builds on conversations in which we engaged while footnoting Law with Heart. (13)

As we engage in this dialogue, one that we hope might prompt both personal reflection and individual and institutional action, we are guided by Dr. Tracey Lindberg's encouragement for those engaging in decolonial and anti-colonial work within the academy:

You need to love law so much that you suspend your disbelief, decolonize your education, and open your mind to the possibility that colonization is a thing that happened and that you are going to learn it, deconstruct it, replace it, and support the work of Indigenous peoples in our re-build. You are going to need to be a traitor, because allyship is not enough. (14) We offer this humble contribution to the important and ongoing conversations within the academy in a spirit of traitorous legal love.

INTRODUCTION

Footnotes, they tell stories.

The Canadian Guide to Uniform Legal Citation (the Guide), (15) colloquially known as the "McGill Guide," is both a strong symbol of, and a prerequisite for, any form of engagement within Canadian legal academia. While studying law requires a deep understanding of the Guide, it does not inherently encourage interrogation of the pedagogical structures the Guide upholds. In this sense, critical engagement with the politics of citation is often overlooked in legal curricula.

The politics of citation are a foreign concept to many, but choosing whom to cite, when to cite, and how the works of others are positioned within one's own scholarship, is an active resistance strategy often employed by those pursuing Indigenist, decolonial, and anti-colonial research agendas. (16)

For Steven, this started in the course "Indigenous Laws and Legal Orders & Critical Indigenous Legal Theory" taught by Dr. Tracey Lindberg at the University of Ottawa's Faculty of Law. Dr. Lindberg's course was built around the process of (un)learning Indigenous exclusion within the legal academy. This learning journey often begins with the Truth and Reconciliation Commission's Calls to Action, particularly Calls 28 and 50. We share these responsibilities here:

28. We call upon law schools in Canada to require all law students to take a course in Aboriginal people and the law, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal-Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and antiracism. (17) 50. In keeping with the United Nations Declaration on the Rights of Indigenous Peoples, we call upon the federal government, in collaboration with Aboriginal organizations, to fund the establishment of Indigenous law institutes for the development, use, and understanding of Indigenous laws and access to justice in accordance with the unique cultures of Aboriginal peoples in Canada. (18) With such important responsibilities, one might question why citation practices should be a priority on the legal academy's radar. On this point, we highlight Professor Jeffrey Hewitt's call for reflection when considering Indigenous inclusion in legal education: "[i]n what ways have law schools failed to make room for Indigenous legal orders, Indigenous scholars, and Indigenous legal research methodologies?" (19)

We maintain that one critical failure resides in the exclusionary nature of legal citation practices. In a 2018 interview, Dr. Kyle Powys White and Dr. Sarah Hunt discussed the politics of citation and explained how Eurocentric citation practices have excluded Indigenous voices from academia. (20)

Although often seen as a tedious part of research, citations highlight important ideas, legitimize knowledge, and can bolster intellectual influence and reputations. (21) While some citation manuals, such as the APA 7th edition, have recently included frameworks for citing Indigenous Knowledge, (22) the Guide still offers no direction. Citation politics become more problematized when scholars in the legal profession must "fit" Indigenous Knowledge into one of the pre-existing Western sources of law included in the Guide.

We acknowledge that the 9th edition of the Guide states that projects are in motion to address Indigenous inclusion, (23) and we understand that Dr. Kerry Sloan at the McGill Faculty of Law will be proposing amendments to the Guide that will include Indigenous Legal Knowledge. (24) We welcome the news of this work, in particular given the current global context. As we have weathered almost two years of COVID-19, Indigenous Knowledge is being lost at a devastating rate due to the loss of Elders. (25) Charles Kamau Maina points out that in some African and Alaskan Native cultures there is a saying that "when an Elder dies, a library burns down." (26) This rapid rate of knowledge loss requires innovation in the ways in which we research, store, write about, and transmit Indigenous Knowledge.

It was also during these waves of COVID-19 isolation and stay-at-home orders that we worked through our collective frustration at our inability to properly cite Indigenous Knowledge sources. In particular, it was the formation...

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