Tansi Ninôtemik,
Earlier this week we posted about the narrative analysis method for revitalizing Indigenous laws. Today the reconciliACTION team puts part of this method in action by applying a case brief method to two Secwépemc stories: The Bush Tailed Rat [1] and Story of the One Bound and Grasshopper. [2]
Working with only Secwépemc stories does not teach anything about how all Indigenous legal orders. Despite the richness in just two stories we can't get a sense of the entire Secwépemc legal order either. However, using just two stories, we can challenge the narrative that Indigenous people were legally unsophisticated.
The focused research question was how do people respond to harm and address conflict? This question overlaps with concepts covered by Canadian criminal and tort law. Indigenous cultures never experienced a division between "public" and "private" harms like the early common law so it makes no logical sense for common law categories to inform how the research question is framed.
Case briefing was, however developed at Harvard University as a common law teaching method. Yet, Indigenous people are usually much more skilled in briefing stories than non-Indigenous legal professionals. Regardless of the methods we use, legal interpretation is always bounded by someone's cultural worldview and lived experience.
The bracket section of a successful case brief can vary from person to person depending on their lived experience. When a case-briefer encounters something they don't understand, it is placed in brackets. Someone who is immersed in their Indigenous culture may have fewer brackets than a non-Indigenous person writing their first story brief. The reconciliACTION team's has some practice with case-briefing stories but none of us are Secwépemc, so our number of brackets falls somewhere in the middle.
The hardest part of briefing stories for everyone lies in how the facts are pulled out. It can seem counterintuitive to exclude anything from the facts section when briefing a story. After all, a story is just fact after fact! The facts needed for this section of the brief are only the ones that reveal a legal issue. In other words: how do we know something is wrong? Has someone been harmed? Are people scared? Has something been taken?
To help a reader understand the case briefs, the reconciliACTION team numbered the content under the facts, decisions and reasons sections to show how this information tracks between the different sections.
We hope you enjoy reading these stories and reviewing our briefs
Until next time,
-The ReconciliACTION YEG Team
Story Name: The Bush Tailed Rat [3]
It was winter and many people were living in a large underground lodge. There were other lodges nearby with many more people. The people were losing their food supplies because someone was stealing them. No one knew who the thief was.
The thefts happened every winter and continued until spring. One night, an old woman could not sleep. She heard someone enter the lodge, run around the house, and then go up the ladder and vanish. The next morning, she told the others. They noticed that a number of things had been stolen the previous night.
The following night, a number of people lay down and pretended sleep and they were armed. At about midnight, someone came down the ladder and began to pick up food and other things, these things were all put into a sack. The people recognized him as the bush-tailed rat. When he left, the people followed him to his house between the rocks. The bush-tailed rat called to his door, “Tla̓qui̓pa!” The door opened and he went in with his sack.
Before the door could close, one man w ho was following closely jumped forward and put his arrow cross-ways in the door so it could not close. He and the others went into the bush-tailed rat’s home and found things that had been missing, some for many years. There were piles of ornaments, clothing and food.
The people attacked the bush-tailed rat and crushed him. They threw him outside among the rocks, and said, “Henceforth you shall be a rat, and shall steal only a little bit at a time. You shall eat rose hips and prickly pears. You shall gather sticks and your excrement shall be valuable as a medicine.” And the bush-tailed rat was transformed into an ordinary rat.
Problem (Issue): What is the main human problem that the story focuses on?
how do people address conflict and respond to harm?
Facts (Relevant): What facts matter?
People were losing food due to theft
One night a woman heard someone enter the lodge and run around.
The Bush Tailed Rat was recognized as the thief
Missing items were found in the Bush Tailed Rat’s house
Decision/Resolution: What is decided or how is the issue resolved?
People pretended to be asleep (while armed) to identify the culprit
The woman told the others what she heard and they corroborated that things were stolen that night
Together, the people followed the Bush Tailed Rat into him home to confront him and to find the missing items
The people attacked bush-tailed rat at his house and throw him outside among the rocks
Bush-tailed rat was made into an ordinary rat who would:
only be able to steal a little bit at a time
Excrete valuable medicine
Reason (Ground/ Ratio): What is the reason behind the decision or resolution? Is there an explanation in the story? Said? Unsaid?
There was a need to safely gather information to determine how to proceed (unsaid)
When people see evidence of harm they should notify others (said)
Part of the harm caused by theft is remedied by the return of the stolen items (unsaid)
Collective responses that use physical force are appropriate ways to punish, deter and/or denounce harms to the collective and to remove harmful individuals from the community (unsaid)
The transformation addresses poor conduct rather than remedying the harm
Because the rat has demonstrated such a persistent pattern of theft it is unlikely that a total prohibition would be a successful response- a solution that proactively seeks to reduce future harm is more likely to be effective (unsaid)
If the rat (formerly known as bush tailed) must continue stealing to survive from humans then they should receive some kind of reciprocal benefit from him. (unsaid)
Bracket [What do you need to bracket for yourself in the story? Some things will be beyond your terms of reference but are not necessary to the case analysis.]
(Tlapuipa ?? Does this open the door?)
(why only rose hips and prickly pears and gathering sticks?)
(What is rat poop good medicine for??)
Story Name: Story of the One Bound and Grasshopper [4]
A man who was very quarrelsome, and of a violent temper, frequently annoyed the people, who were in the habit of binding him hand and foot when he became too obstreperous, and placing him outside the house.
One day he was thus lying bound when Grasshopper came along, and, seeing that he was tied, kicked him. He kicked hard, and his leg fell off. Getting angry, he kicked him again with his other foot, which fell off also. Then Grasshopper went to the chief of the people and made complaint against the man, saying, “He knocked off my legs.” The chief was inclined to believe Grasshopper’s story, for he knew the violent disposition of the man: so he gathered the people together to make inquiry, and told them to bring the man before him. The man, when questioned, said, “Grasshopper kicked me twice, and his legs fell off. I could not touch him because I was bound hand and foot.” It was proved by the people that the one bound had told the truth, and that Grasshopper had lied, so they transformed the latter, saying, ‘Henceforth you shall be a grasshopper, and shall kick no one. Your legs shall be loosely fastened to your body, and shall come off easily. People shall use you for bait to catch fish.”
Problem (Issue): What is the main human problem that the story focuses on?
how do people address conflict and respond to harm?
Facts (Relevant): What facts matter?
A man with a violent temper became too obstreperous
Grasshopper kicked the man while he was bound
Grasshopper complained to the Chief against the bound man, falsely claiming that he knocked off grasshopper's legs
It was proven that the Grasshopper lied and kicked the bound man
Decision/Resolution: What is decided or how is the issue resolved?
He was bound hand and foot and tied outside the house
The Grasshopper lost his legs
The Chief gathered the people and called an inquiry where both sides of the story were heard
The Grasshopper
would have legs loosely bound to its body
Would be used as fish bait
Reason (Ground/ Ratio): What is the reason behind the decision or resolution? Is there an explanation in the story? Said? Unsaid?
People needed to prevent the violent man from causing further harm but his conduct did not justify his removal from the community (said)
Misuse of creator’s gifts can result in them being taken/lost (unsaid)
Many possible reasons:
The bound man’s violent nature made Grasshopper’s complaint see credible (said)
Someone’s pattern of previous harmful conduct is not sufficient to prove new allegations of harm (unsaid)
People should be able to defend themselves against unsubstantiated allegations (unsaid)
The community as a whole has an interest in the situation
Because
If the grasshopper’s legs are loosely bound to its body it won’t be able to kick anyone. This also represents a reciprocal response to the harm
Harm(s) to people in vulnerable circumstances can invite a similar vulnerability onto the perpetrator of harm. (Also practical advice about fish bait?)
Bracket [What do you need to bracket for yourself in the story? Some things will be beyond your terms of reference but are not necessary to the case analysis.]
(How was it proven that the bound man told the truth and the grasshopper lied? Just by his word? Or more? The fact that he was bound?)
(Is the main issue about that Grasshopper kicked or that he lied about it?)
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CITATIONS
[1] Secwépemc Lands and Resources Law Research Project at 90-91 [Bush Tailed Rat]
[2] Secwépemc Lands and Resources Law Research Project at 164-165 [Grasshopper]
[3] Bush Tailed Rat, supra note 1.
[4] Grasshopper, supra note 2.