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Law School Blanket Exercise

Welcome

NOTE: hand out the scrolls and cards at the very beginning as people are coming in (only to people who are willing to read. Let them know they needn’t open the scrolls til instructed to do so]

Narrator: Why are we here today?

Back for another session of Legal Process, now that we are another month into classes. Part of the work of Law School in these times is to be fluent in the TRC. We do know that reading about, or talking about, are not enough: this was an exercise developed to teach in a tactile, physical way.

Developed by KAIROS, adapted by Hadley Friedland, Val Napoleon, Naomi Mettalic, Ardith Walkem, and others to have a law-centred focus. This version has been done at UofA, McGill and Dalhousie

Explore the history of the relationships between Indigenous Peoples and newcomers and to explore how the legacy of that history continues to mark relationships today

One thing that will become obvious through this exercise is the many ways in which Canadian law has been used by Canada to facilitate and enable the removal of the lands, governments, traditions and even children of Aboriginal peoples.

Scroll 1:Chief Justice McLachlin of our Supreme Court, has said past legislation contributed to a “cultural genocide” of Aboriginal people.

Scroll 2:The TRC Final Report found that, as a result of this history, “Aboriginal people came to see law as a tool of government oppression.”…

Many Aboriginal people have a deep and abiding distrust of Canada’s political and legal systems because of the damage they have caused. They often see Canada’s legal system as being an arm of a Canadian governing structure that has been diametrically opposed to their interests. Not only has Canadian law generally not protected Aboriginal land rights, resources, and governmental authority, despite court judgments, but it has also allowed, and continues to allow, the removal of Aboriginal children through [residential schools] and a child-welfare system that cuts them off from their culture. As a result, law has been, and continues to be, a significant obstacle to reconciliation. This is the case despite the recognition that courts have begun to show that justice has historically been

Blanket Exercise, 4th edition, © 2016 KAIROS Canada. Adapted for law school contexts (Hadley Friedland, Val Napoleon, Naiomi Mettalic), and for BC focus (Ardith Walkem, Halie Bruce, Andrea Hilland, Teresa Sheward)

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denied and that such denial should not continue. Given these circumstances, it should come as no surprise that formal Canadian law and Canada’s legal institutions are still viewed with suspicion within many Aboriginal communities. –TRC Summary of the Final Report at 202.

Narrator: Does this view of Canadian law as a tool for oppression fit with your own? Do you view Canadian law with suspicion and distrust?

As we walk through this exercise, we ask you to ask yourselves – as aspiring lawyers and future members of the Canadian legal profession – why do you think it is important for you to learn the history, and to consider the implications of how Canadian law has impacted Indigenous communities and individuals?

Narrator: These blankets represent the northern part of Turtle Island, or what we now know as Canada, before the arrival of Europeans. You represent the Indigenous peoples, the people who have been here for at least 10,000 years. Long before the arrival of Europeans, Turtle Island was your home, and home to millions of people like you. You lived in hundreds of nations. You fished and hunted and farmed. You had robust economies, and extensive networks of trade and exchange. Each Indigenous society had its own language, culture, traditions, and governments. Each society also had its own laws and legal traditions. As communities you often worked together and cooperated with one another.

However, like all people, you sometimes experienced conflict amongst yourselves. Before the newcomers arrived, one of the ways in which you, the original peoples, dealt with harms or disputes was by using your own laws and legal institutions to reach legitimate resolutions through public legal processes. This included making principled decisions about protecting the vulnerable, regulating resources and maintaining safety within communities. This also included negotiating peace and making treaties with neighbouring nations.

Legal Issue A: Indigenous Legal traditionsAs a matter of logic alone, our starting point has to be that, for a very long time, all Indigenous groups had self-complete, non-state systems of social ordering that were successful enough for them to continue as societies for tens of thousands of years.…We can logically assume that Indigenous legal traditions of the past, while not paragons of perfection (and no legal order is ever perfect), were reasonable legal orders managed by intelligent and reasoning people. This is our logical starting point. – Napoleon and Friedland, Roots to Renaissance at 227.

Despite the ravages of colonialism, every Indigenous nation across the country, each with its own distinctive culture and language, has kept its legal traditions and peacemaking practices alive in its communities. While Elders and Knowledge Keepers across the land have told us that there is no specific word for “reconciliation” in their own languages, there are many words, stories, and songs, as well as sacred objects such as wampum belts, peace pipes, eagle down, cedar boughs, drums, and regalia, that are used to


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establish relationships, repair conflicts, restore harmony, and make peace. The ceremonies and protocols of Indigenous law are still remembered and practised in many Aboriginal communities. – TRC Summary of Final Report at page 17.

Narrator: The land is very important to you. All of your needs – food, clothing, shelter, culture, your spirituality – are taken care of by the land, which is represented here by the blankets. The land is also one source of your people’s laws. In some ways, your land is like this law school, like the texts you bought for your classes to learn law with. In return, you take very seriously your responsibility to take care of the land. Your laws include obligations to take care of the land and your relationship with it.

Legal Issue B: Indigenous Legal Traditions & Land-based Learning

Legal education in North American once occurred outside the classroom. Before law schools were invented students apprenticed under the supervision of experienced practitioners. They put in long hours. They learned through observation and practice.…Of course I am talking about Indigenous legal education in North America prior to European arrival. Indigenous law was taught on the land and water. Elders and other law keepers supervised their initiates in context. Demonstration, observation and practice formed the heart of learning. Lectures could occur but emphasis was given to hands-on instruction. The form and substance of legal education was based on apprenticeships. – John Borrows, Indigenous Law and Land based Learning

Scroll 3:“One of my favourite things about my culture is how we’re taught that everything on the Earth is to be respected. It’s an important part of the culture and covers everything. That includes respecting yourself. Respecting yourself is one of the most important things my culture has taught me. Also, the land, water, plants, air and animals are all very important to our culture and need to be respected. Without any of it, what would we be?” —Kateri, a Mohawk youth from a community in Quebec

Narrator: Introduce the volunteer(s) representing the European settler(s).

Things were happening in Europe at the end of the 15th century that would mean a huge change for you. European explorers had just quote-unquote “discovered” you and your lands. This started a fierce competition between European nations. And so began the so-called European “discovery” of Turtle Island

European 1 (In a loud, pompous voice, striding around the blankets): Without even consulting you, we made deals amongst ourselves and divided up control over you and your lands. Usually, whichever nation discovered your land first, took control with the blessing of the Christian church. We justified this practice based on a concept known as the “Doctrine of Discovery” and a related concept, “Terra Nullius.”


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Legal Issue C: Doctrine of DiscoveryThe United States Supreme Court viewed title to all land in what is now North America as rooted in the “Doctrine of Discovery.” In a series of American decisions known as the “Marshall Decisions” in the early 1800s, Chief Justice Marshall found that underlying title and jurisdiction in North America by the state government was based on the Doctrine of Discovery. The Doctrine of Discovery was a principle that held the ‘discovering’ European Nation held all rights to the land, before any other European Nations. The ‘discovering’ European nation claimed underlying title and jurisdiction of all the ‘discovered’ territory. The Doctrine of Discovery had no basis in International law, and has since been firmly rejected as justification for claiming territory, but the consequences remain. These consequences rely on a related concept, known as “Terra Nullius.”

Scroll 4:Terra Nullius (TER-ah NOO-lee-us). The concept of Terra Nullius, which in Latin means “land belonging to no-one”, meant that, if European countries sent out explorers and found land, which nobody inhabited, they could claim it for their nation, and their Nation’s laws and jurisdiction would automatically apply. These were often lands we were using.

European 2: The land wasn’t empty and we as Europeans knew it so we changed the idea of “terra nullius” to include lands not being used by “civilized” peoples, or lands not being put to “civilized” use. We decided what it meant to be “civilized”, and we decided that because you and your people were not using the land in a “civilized way”, we could take it. It was almost impossible to stop us.

Scroll 5:“At contact with Europeans, each of the hundreds of Indigenous Peoples of Indigenous America possessed all the elements of nationhood that were well-established by European settlers: territory, governing structures, legal systems and a historical continuity with our territories. Nothing since the arrival of Columbus has occurred to merit any reduction in the international legal status of Indigenous Peoples. The recognition of Indigenous Nations and our rights pose no threat to non-Indigenous Peoples.”—Sharon Venne, Cree

Europeans 1 and 2: (Step onto the blankets from the east. Begin shaking hands, moving around and handing out the index cards.)

Narrator: When the Europeans first arrived on Turtle Island there were many more Indigenous people than Europeans. The newcomers depended on you for their survival, and you helped them to understand how you did things – how you taught your children, how you took care of people who were sick, how you lived off the land in a way that left enough for future generations, and how your governments and laws worked.

In the beginning there was lots of cooperation and support between you and the settlers. The settlers and their leaders recognized you, the First Peoples, as having your own


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governments, laws and territories. They recognized you as independent nations. In fact, they sought you out as valuable military allies in times of war and conflict. They followed your laws and ways of doing things for territorial access and building trade relationships in the fur trade.

They made agreements or treaties with most of you. These treaties explained what your relationships would be like, and how you were going to share the land and the water, the animals, and the plants. The treaties appeared to be the European’s way of officially recognizing your power and independence as nations. The Europeans seemed to understand they could not force their laws or way of life on the people who were here long before they ever arrived. They understood that you had your own territories, governments and laws. In fact, treaty making followed your legal processes and international protocols. For you, these treaties were very important because they were legal agreements between you and the kings and queens of countries in Europe governing the relationship between your people and the settlers in your territories.

European 1: (speaking in a loud voice): In the Royal Proclamation of 1763, King George the Third said Indigenous nations own their lands. The King said that the only legal way newcomers could gain control of those lands was by making treaties between the two nations. The year 2013 marked the 250th anniversary of the Royal Proclamation.

Narrator: Later on, the Government of Canada was formed, and the Royal Proclamation became part of Canadian law. For you, the Indigenous peoples, the treaties were very special and sacred agreements. They set out the terms of right relations between your people and the Europeans. They were statements of peace, friendship, and sharing, and they were based on respect and honesty. Generosity and reciprocity were very important parts of right relations in your legal traditions. Hunters shared their food with everyone and the families helped one another raise the children. In the treaties, you assumed the Europeans understand what you meant by reciprocity and right relations.

European 2: (Begin to slowly fold the edges of the blankets, making the blanket space smaller and smaller. When blankets are empty you can take them away and put them in a pile outside the activity. Very gradually fold and remove blankets until the middle of the exercise when the Indian Act is introduced and participants are placed on reserve.)

Narrator: (Remind participants that they must NOT step off the blankets. The goal is to stay on the blankets, even as they get smaller. The Narrator should also remind everyone that Indigenous people have always resisted when someone tried to take the land away.)

Narrator: But gradually, it became clear to you that the Europeans didn’t see it that way anymore. They now had a different view of the treaties. For them, land was something that could be bought and sold, and treaties were a way of getting you, the Indigenous peoples to give up your land.

Legal Issue D: Are Treaties Binding legal agreements between Nations?There is still no widespread agreement as to whether the treaties signed between the


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Europeans and Indigenous peoples are to be viewed as International treaties between nations in domestic or international law. In R v Sioui, [1990] 1 SCR 1025, the Supreme Court of Canada unanimously found that the Huron Nation was an independent sovereign nation when it negotiated a treaty with a representative of the British Crown in 1760. The court suggested all Indigenous nations held a similar status at that time. However, many state governments and courts still deny that Indigenous treaties created binding agreements under International law. As Indigenous peoples, you might wonder – if not sovereign nations, what were you viewed as? What then, did the treaties create?

Scroll 6:“Where common memory is lacking, where people do not share in the same past, there can be no real community. Where community is to be formed, common memory must be created.” —Georges Erasmus, Dené Nation, co-chair of the Royal Commission on Aboriginal Peoples

Narrator: After a while, you didn’t get along very well with the Europeans. When the War of 1812 ended, the Europeans no longer needed you as military allies. As the fur trade dried up, the European newcomers turned more and more to farming and started looking for more land.

European 1: On the West Coast of Turtle Island, in what would become British Columbia, Europeans arrived a couple of centuries after first contact and settlement on the East Coast. The sea-based and later the land-based fur trade that emerged in B.C. also required cooperation and respect in dealing with you, the First Peoples.

In 1790, Britain claimed Vancouver Island by signing the Nootka Convention with Spain. This avoided war with the Spanish. Then, in 1821, Britain gave the Hudson Bay Company the rights to Vancouver Island including exclusive rights to trade with Indigenous Peoples.

European 2: In British Columbia, Sir James Douglas, chief officer for the Hudson’s Bay Company and Governor of the colony on Vancouver Island, signed fourteen treaties with those of you who lived there. But the process was questionable. The British did not speak your Indigenous languages, and you did not speak English. For example, the last treaty in 1854 had no proper text. Instead of signatures, 159 identical marks were made for you. You believed Douglas’ treaty was a peace treaty, not anything to do with your land, and would protect your way of life for all time.

Because the Douglas Treaties that covered Vancouver Island took a lot of time and money, Douglas decided not to make treaties on the mainland. British Columbians today are still living with this decision – there were no agreements about how the land would be shared before settlers arrived.

Scroll 7:The Douglas Treaties (Pre-Confederation treaties of Vancouver Island) were concluded for the safety of the settlers who constituted, at most, 1,000 persons, there being 30,000


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Indians on Vancouver Island alone, apart from the Northern Tribes who constituted a raiding threat and against whom friendship with the local Indians (the Saanich) afforded a measure of security.—Observations of the BC Court of Appeal in the hunting case of R. v. White and Bob

Narrator: Before too long, there were more Europeans than Indigenous peoples. One reason for this was the diseases the Europeans brought with them: diseases such as smallpox, measles and tuberculosis. You, the Indigenous peoples, suffered badly from these diseases because you had never had them in your communities before. Millions of you died. In fact, there are some people who believe that half the Indigenous people alive at the time died from these diseases. In some communities, nine out of ten people died.

From an estimated population of 200,000 before the arrival of Europeans, the Indigenous population in British Columbia had plunged to 22,605 by 1929.

[European 1 walks to a person who doesn’t have a card, hand them the folded blanket and reads:

European 1: On the west coast and the prairies, blankets infested with the smallpox virus were given to Indigenous Peoples. Other Indigenous Peoples died because Europeans brought disease to which Indigenous Peoples did not have a natural immunity. You represent the thousands of Indigenous people who died from smallpox in this way. Please step off the blankets.

Narrator (Ask those participants with white index cards to step off the blankets telling them that they represent people who died of the various diseases): Please be silent for a moment to remember those who died from the diseases.

European 2: (Walk up to one person in the “east” who does not have a card and tell that person): You represent the Beothuk, one of the original people of what is now the island of Newfoundland. You also died from diseases you had never seen before. Because the Europeans overhunted some of you starved. Some of you died in violent encounters with the settlers trying to take your lands. Some of you were hunted down and killed. In 1829, the last person recognized by the Europeans as your people, Shanawdithit (Shanna-deet-dee), died in St. John’s. Your language and culture became extinct. Please step off the blankets. (one person only)

European 1 and Narrator walk to the south and choose two people who are standing close together.

Narrator: You represent the First Nations that were divided when the border between the United States and British Canada was created. This border divides communities and cuts you off from each other. Please move to separate blankets.

European 1: (Guide each person to a separate blanket, and then walks to the “west” and choose one person who does not have a card, tell them): Construction of the railway


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opened up the Prairies to settlers. Land was needed for farming and the Government of Canada bought a huge piece of land from the Hudson’s Bay Company. This was very hard for some of you who were already living there, such as the Métis, the Cree and the Blackfoot. You, the Métis, fought for your land during the Red River Rebellion and the North West Resistance. You won some of these battles, but in the end you were defeated by the government’s soldiers. You represent those Métis leaders who died in battle, were put in jail, or were executed. Please step off the blankets. (one person only)

Narrator: After these rebellions, the Métis people entered a period of dispersion. Fearing for their lives, Métis people changed their names and fled in all directions, some moving to the United States while others went back to their First Nation families and became treaty “Indians”. Others denied their native heritage altogether. These were dark times for the Métis, a time of persecution and extreme poverty due to their landlessness and general lack of education.

(European 2 and Narrator walk to the “north” and choose a small group of people standing together on a blanket. Read to them the following two paragraphs):

Narrator: In the High Arctic, Inuit communities were moved to isolated, unfamiliar, and barren lands, often with very bad results. One of these results was tuberculosis (TB) epidemics, which reached northern communities in the 1950s. By 1956 one-seventh of the entire Inuit population was being treated for Tuberculosis while one-third of the population overall was affected. Many children were removed from their homes to be sent down south for treatment in TB sanatoriums, some never to return. A large number of infected individuals passed away from the disease. Currently, the rate for TB among the Inuit is 185 times higher than for Canadian-born non-Aboriginal people.

European 2: You represent people like the Inuit and the Innu at Davis Inlet, along with many other Indigenous communities who suffered and sometimes died because you were forced to move to an unfamiliar place. Please move your blanket away from the others, fold it small and stand on it.

European 2 and Narrator: (Assist in moving their blanket, folding it small and directing the group to once again stand on it.)

Narrator: In BC communities were also dislocated – such as the Gwasala on Northern Vancouver Island who were moved from their traditional lands.

Scroll 8: “You can’t hunt deer except when the townsfolk are in the bush, during what they decide is the right time to hunt. You can’t bring down a bird to feed yourself when you’re trapping. You can only fish four days a week, and they choose the days... Now they only want us to eat what we buy in their stores or grow with their tools.” —Dick Andrew, George Manuel’s grandfather, Shuswap


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Narrator: Those with blue cards, step off the blankets. You represent those who died of hunger after being forced off your original land and away from your hunting grounds.

European 1: As more of us arrived, we needed more land. Many of us as Europeans thought we were better than other kinds of people, including you. Soon, we didn’t think of you as friends and partners, but as a “problem” to be solved. We started ignoring or changing our laws to make it easier for us to take your land. We came up with many justifications to restrict your movement and take your land. You had no recourse against us, because we controlled the law, its interpretation and its enforcement.

Legal Issue E: The Legality and Legitimacy of Unjust LawsLaw, “by its very nature...can turn upon us and prey upon our vulnerability” whether by “devastating the biological continuum upon which our common humanity rests” or “by subjugating the whole of life to its will.” – F.C. Decoste, Review of Fraser, Law After Auschwitz”

Narrator: As Indigenous peoples, you lost more than just your land. Because the land is so important to you, when it was taken away or you were relocated, many of you lost your ability to take care of your families. You were suddenly left with no means to fulfill your deep and every day social and legal obligations. You lost key resources for maintaining your societal and legal memories. You lost your way of life, and, in some cases, your reason to live.

European 2: James Douglas became Governor of British Columbia. He got land for the many settlers who were arriving by allowing you, the Indigenous Peoples, only 10 acres per family – this was much less than in other parts of the country. Joseph Trutch took over from Douglas. Trutch took even more land from you than Douglas. He gave you no compensation. He said you didn’t use, need or own the land.

European 1: Interests in land and resources in BC continued to be granted to newcomers, while reserves (already smaller than in the rest of Canada) were reduced. Indigenous Peoples made submissions to a Joint (Provincial and Federal) Reserve commission in 1887 protesting this situation.

Scroll 9: As the Nisga’a and Tsimshian, we don’t like what the Government is saying: that we will give you this much land. How can they give it when it is our own? We cannot understand it. They never bought it from us or our forefathers. They never fought and conquered our people and took the land that way, and yet they say now that they will give us so much land - our land.

Scroll 10:The British North America (“BNA”) Act. The BNA Act, later renamed the Constitution Act, 1867, is Canada’s major constitutional document. It was a statute of the British Blanket Exercise, 4th edition, © 2016 KAIROS Canada. Adapted for law school contexts (Hadley Friedland, Val Napoleon, Naiomi Mettalic), and for BC focus (Ardith Walkem, Halie Bruce, Andrea Hilland, Teresa Sheward)

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parliament that united 3 British colonies, created provinces, and divided up governance powers between federal and provincial governments. In s. 92 (24) it put “Indians and Lands reserved for Indians” under the control of the federal government. When this happened, we officially lost our rights and control over our lands.

Narrator: The Constitution Act officially ‘gave’ the legal power to control your lands, and you, to the Government of Canada, which at that time was made up of only people from Europe. You, the Indigenous peoples, had no say and were not involved in the creation of this Constitution that would have such a big impact on your lives. More and more, the plan was to try and make you like the Europeans.

Scroll 11:Indian Act. In 1876 all the laws dealing with us were gathered together and put into the Indian Act. It still exists and is the primary statute outlining how the federal government interacts with First Nations bands and reserves. It controls many aspects of life, including HOW reserves can be governed and operate, and WHO can be recognized as an “Indian” under that Act. The Indian Act completely changed our lives.

European 2: (In a loud voice): Now hear this! According to the Indian Act of 1876 and the British North America Act of 1867, you and all of your territories are now under the direct control of the Canadian federal government. You will now be placed on reserves. Please fold your blankets until they are just large enough to stand on.

Narrator: You went from being strong, independent First Nations, with your own governments and laws, to isolated and poor “bands” that depended on the government for almost everything. You were treated like you knew nothing and like you couldn’t run your own lives. The Indian Act defined you as “wards of the federal government”. Your own governance processes and laws were dismissed, ignored, or even deemed illegal under Canadian law.

Legal Issue F: Human Rights and Equality of Indigenous peopleThe early versions of the Indian Act actually made a distinction between “Indians” and “People”. South Africa studied it and used it to implement their apartheid regime. Through the Indian Act, the federal government still regulates many aspects of Aboriginal people’s lives other Canadians would never dream of. Aboriginal people living on reserves still do not receive equitable funding through the federal government for things most Canadians take for granted, such as healthy schools, proper housing and clean running water.

Narrator: When BC became part of Canada in 1871, 90% of the population was Indigenous. Only 10% of people in the province were of European ancestry but yet they made the laws about where and when people could hunt or fish. The newcomers also decided who could use resources like timber and minerals.

Narrator: The Indian Act also tried to stop Indigenous peoples from fighting to keep their land. For example, under the Indian Act, it was against the law to raise money or


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hire a lawyer to fight for land rights in the courts until the 1950s. Originally, the federal government denied all responsibility for Métis or Inuit.

European 1: (walking slowly around the blankets): We think your ceremonies like the potlatch (on the west coast) and the sundance (on the prairies) are stopping you from assimilating and they disturb us, so they are now against the law. Also, you may not leave your reserve without a permit from the Indian agent. Nobody is allowed to sell you alcohol or ammunition. Nobody is allowed to let you into a pool hall or bar. You may not practice your spirituality, your traditional forms of government or your laws. You are not permitted to wear your traditional regalia in public places. The farmers and ranchers are getting annoyed with the competition from you doing so well with your businesses, so it is now illegal for you to sell anything to anyone except through a permit from the Indian agent, who will control who you may sell to and how much you may charge. If you do any of these things, you may be put in jail. Also, you may not vote in Canadian elections.

Legal Issue G: Legislative Amendments and Statutory Interpretation/enforcementThese were all laws, passed by Canadian parliament, which were added to the Indian Act as statutory amendments, until the 1950s, when the act was amended to remove them. Status Indians were finally given the right to vote in Canada in 1960.

Scroll 12:“I know what the government did in the past; they said where we had to live. I know that we’re not treated equally now, because I can feel it. We’re all Canadians and we should all be treated equally.” —Cassie, a Mi’kmaq youth from a community in NS

Narrator: Many of the amendments of the Indian Act made it easier for the Canadian government to legally take away lands promised through the treaties and harder for Indigenous people to legally fight these government actions. For example, it allowed the government to legally expropriate (or take) reserve lands for roads, railways and any other public works, to move entire reserves away from towns. It made it legal for the federal government to lease out reserve lands to non-Indigenous people, for farming, pasture, and even summer cottages. The Indian Act also made it illegal for Indigenous peoples to take legal action to fight for their land rights. For example, under the Indian Act, it was against the law to raise money to fight for land rights in the courts or hire lawyers to do so until the 1950s.

Scroll 13:Enfranchisement (en-fran-CHISE-ment). Under this section of the Indian Act, all First Nations people who became doctors, teachers, lawyers, soldiers, or who went to university lost their legal Indian status. So did all women who married European men. This was called “enfranchisement”.

Narrator: In other words, the government would no longer legally recognize you as a First Nations person. This cut you off from your communities, including First Nations soldiers returning from war or First Nations lawyers who were not allowed to fight for the rights of their people.


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European 2:(Choose one person who does not have a yellow card and ask them to leave their blanket and stand somewhere on the floor. Tell them) : You were enfranchised – you’re a First Nations teacher, lawyer, doctor or veteran so you’ve lost your Indian status and have left your community.

Narrator: The vast majority of First Nations people who were ‘enfranchised’ under the Indian Act were women who married European men. Gender inequality in the Indian Act meant that Indigenous women who married non-Indigenous men lost their legal Indian status but a non-Indigenous woman who married an Indigenous man gained status. In addition, if the father is not listed on the birth certificate, he is presumed by the Canadian government to be non-Indigenous.

European 1: (Approach someone (a woman if possible) who is still on the blankets and say to them): You represent one of the women stripped of your status because of this gender inequality in the Indian Act. As a result, you have had to leave your community, please find a spot nearby on the floor.

Legal Issue H: Enfranchisement provisions and the CharterIn recent years, many strong Indigenous women have spoken out and fought this gender inequality through court cases. For example, Sharon McIvor, an Indigenous lawyer in BC, who had lost her status when she married a non-Indigenous man, pursued this in court for years. In 2009, the British Columbia Court of Appeal ruled in her favour, and found the provisions that stripped her of her status were contrary to s. 15 of the Canadian Charter of Rights and Freedoms.

Narrator: Many Indigenous women and their children have had their Indian status reinstated. However, this has led to many complicated issues within some Indigenous communities. Amendments have been made but, to date, gender discrimination has not been fully removed from the Indian Act. There is still more work to do.

Scroll 14:Assimilation (ah-sim-ill-EH-shun). The government thought the “Indian problem” would solve itself as more and more Indigenous people died from diseases and others became part of the larger Canadian society. As one government employee said, the government’s goal was “to continue until there is not a single Indian in Canada that has not been absorbed into the body politic and that there is no Indian problem and no Indian Department.” [Indian Affairs deputy superintendent Duncan Campbell Scott]

Narrator: You had to become more like the Europeans by giving up your rights, farming, going to school and praying in church like them. At the same time, you aren’t really accepted by Europeans no matter how or where you live.

European 2: (Place the residential school blanket on the floor at a distance from the others.)


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Scroll 15:Residential Schools. From the mid-1800s until the 1990s, the federal government took First Nations, Inuit and Métis children from our homes and communities and put them in boarding schools that were run by churches. The official partnership between the federal government and the churches ended in the 1970s but some churches continued to operate schools until the 1990s. As parents we didn’t have a choice about this. Sometimes the police arrived to take away our children. These schools were often very far from our homes and they had to stay at them all or most of the year. Mostly they were not allowed to speak our languages and they were punished if they did. Often our children weren’t given enough food. The last Indian residential school closed in 1996.

Narrator: All people with yellow cards, raise your hands. You must now move to a separate, empty blanket. You represent those who were taken out of your communities and placed in residential schools far from your homes.

European 1: (Take the children to the residential school blanket.)

Narrator: While some students say they had positive experiences at the schools, most of you say that you suffered from very bad conditions and from different kinds of abuse. Many of you lost family connections and didn’t learn your language, culture and traditions. Because you grew up in the schools and rarely went home, many of you did not have any good role models for healthy relationships or loving parenting. Some students died at the schools. Many of you never returned home or had trouble reintegrating if you did.

European 2: The people with the yellow index card marked with an “X”, please step off the blanket. You represent one of the thousands of children who died at the schools or who died later as a result of your experience.

(Pause for the person to leave the blanket)(Next, choose someone else who was not alone on their blanket and ask them to return to their community. Say to them): Many of you were welcomed back but had difficulty fitting in. Some of you experienced lateral violence when you returned. One person in the community please turn your back on the person to represent the family ties that were damaged because of intergenerational impacts.(Pause while this takes place.)

Everyone else with yellow cards, please find a spot nearby on the floor. You represent those whose connection to your family and community was broken and you never made it home. Some of you ended up in urban centres, others ended up incarcerated due to your experience at residential school.

Narrator: Please be silent for another moment to honour those who died or who never made it home because they lost connection to their family and community.

Scroll 16:


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“You have to remember that the Canadian government has done a lot to Aboriginal people that was meant to make us become like Europeans. For example, in residential schools, my grandmother told me you couldn’t speak our language or you’d get beaten; you couldn’t see your parents – things like that. We didn’t have voting rights for a long time. We also lost a lot of our culture.” —Heather, a Cree youth from a community in Saskatchewan

European 1: Thanks to the courage of survivors, Canadians started to find out about residential schools. Former students took the government and the churches to court, which led to the largest class action suit in Canadian history and the negotiation of a unique settlement agreement. The settlement included the Truth and Reconciliation Commission. In 2008, the Prime Minister apologized for the residential schools. Here is an excerpt:

“To the approximately 80,000 living former students, and all family members and communities, the Government of Canada now recognizes that it was wrong to forcibly remove children from their homes and we apologize for having done this. We now recognize that it was wrong to separate children from rich and vibrant cultures and traditions... and we apologize for having done this... Not only did you suffer these abuses as children, but as you became parents, you were powerless to protect your own children from suffering the same experience, and for this we are sorry.”

Narrator: But apologizing means you have to change what you’re doing. Many people are still waiting to see if Canada will change how it treats Indigenous children.

The residential schools are not just part of our history. Children and grandchildren of people who went to the schools still live with the impacts. Many former students are alive today and some have had a chance to tell their story to Canadians through the Truth and Reconciliation Commission. But Indigenous children are still treated differently. Your schools don’t get as much money. Neither do your children services agencies. Today you are even more likely to be taken from your communities but this time you are being placed in foster care.

Scroll 17:From the 1960s to the 1980s, thousands of First Nations and Métis children were taken from our homes by provincial child welfare departments and adopted or fostered, usually by non-Aboriginal people. This period is known as the 60s scoop. Many of these kids experienced violence, racism and abuse and lost connection to their identity and culture. Like residential schools, the belief behind the 60s scoop was that assimilation was the best thing for Aboriginal children, and there was nothing to lose by removing them from their families and communities.

European 2: (Go up to someone who is still on their blanket and ask them to find a spot on the floor nearby. Say to them): You represent a child apprehended from your community during the 60s scoop. You were not able to fully integrate into your adoptive family or non-Aboriginal society due to the stereotypes and racism you encountered. You


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are also not able to reintegrate into your extended family and community, leaving you with a sense of loss and a lack of belonging everywhere.

Scroll 18: Indigenous Children and the Child Welfare System TodayThere are more Indigenous kids in the child welfare system today than were ever held at Indian Residential Schools. Over 60% of all kids in care in BC are Indigenous. “The cost of involvement within the child welfare system by Aboriginal children and youth, families and Nations is very high. Long-term impacts on Aboriginal children of being raised in care include:-Risk of low education attainment;-Higher risk of addictions;-Higher risk of street involvement;-More likely to age out of system (no permanent adoption or other solution); and-Higher contact with the criminal justice and child welfare system in their own lives.”—Wrapping Our Ways Around Them: Aboriginal Communities and the CFCSA Plain Language Guide

Legal Issue I: First Nations Caring Society Human Rights Case Nine years ago, Advocate Cindy Blackstock and the Assembly of First Nations launched a human rights complaint, alleging Canada discriminated against Indigenous children on reserve, on the basis of their race and/or ethnic origin, by providing inequitable and insufficient funding for child welfare services on reserve, contrary to s. 5 of the Canadian Human Rights Act. In January, 2016, after years of legal battles, the Canadian Human Rights Tribunal found the complaint was made out and ordered Canada to stop its discriminatory activities and change its policies accordingly. The new government has promised not to appeal this decision and stated it is working on implementing it.

Narrator: Please unfold one corner of your blankets and give yourselves a round of applause for the tireless Indigenous advocates like Cindy Blackstock who fight for positive change for Indigenous children.

Scroll 19:Broken promises. Over the years, more than 70 per cent of the land set aside for us in the treaties has been lost or stolen. The Canadian government has allowed big corporations to make huge profits from Indigenous lands and natural resources, without sharing those benefits with the First Nations or considering the impacts on the natural world and the communities themselves.

Scroll 20:“First Nations are nations. First Nations (treaty people) signed over 300 treaties with the Europeans during the 1700s and 1800s. The treaties agreed to share the lands and resources with the immigrants. … The Indians surrendered over 9.9 million square kilometres of their land to the immigrants. Today, the sons of the immigrants have the largest treaty rights in Canada. The Indians have become the poorest peoples in Canada.”—Chief Pascall Bighetty, Pukatawagan [Pu-ka-ta-wa-gan] First Nation


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Legal Issue J: Canadian Law’s Legitimacy and ReconciliationIn Canada, law must cease to be a tool for the dispossession and dismantling of Aboriginal societies. It must dramatically change if it is going to have any legitimacy within First Nations, Inuit, and Métis communities. Until Canadian law becomes an instrument supporting Aboriginal peoples’ empowerment, many Aboriginal people will continue to regard it as a morally and politically malignant force. A commitment to truth and reconciliation demands that Canada’s legal system be transformed. It must ensure that Aboriginal peoples have greater ownership of, participation in, and access to its central driving forces. Canada’s Constitution must become truly a constitution for all of Canada. Aboriginal peoples need to become the law’s architects and interpreters where it applies to their collective rights and interests. Aboriginal peoples need to have more formal influence on national legal matters to advance and realize their diverse goals. TRC Summary of the Final Report at 205.

Narrator: In 2007, the United Nations Declaration on the Rights of Indigenous Peoples became part of international law. This is an agreement among the world’s governments that Indigenous peoples have the right to certain minimum standards necessary to survive and thrive as Indigenous peoples. Canada was one of the last countries to ratify the Declaration. In the past year, both the federal and provincial government have committed to fully implementing this declaration into British Columbian and Canadian law. Please unfold one SMALL corner of your blankets to honour the people who wrote the Declaration and worked to get it adopted and give yourselves a round of applause.

European 1: One way the Canadian government pressures Indigenous peoples to leave their lands and assimilate is by failing to provide enough funds for basic services:

Over half the drinking water systems on reserve pose a significant risk to human health.—Office of the Auditor General, 2011

There are 85,000 new housing units needed on reserve and 60% of existing houses are in need of repair. —Assembly of First Nations, 2012

Rates of suicide are high in some First Nations communities and are even higher in many Inuit communities. Among First Nations communities, suicide rates are twice the national average, and show no signs of decreasing. Suicide rates among Inuit are even higher than among First Nations, at 6 to 11 times the Canadian average. —Public Health Agency of Canada, 2011

Scroll 21:Shannen Koostachin of Attawapiskat First Nation had a dream: safe and comfy schools for First Nations children and youth, and classes that respect First Nations cultures. She worked tirelessly to convince the federal government to give First Nations children a proper education and fair funding.

Scroll 22:Shannen said “I want to tell you what it is like to never have the chance to feel excited about being educated...It’s hard to feel pride when our classrooms are cold, and the mice run over our lunches and when you don’t have proper resources like libraries and science


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labs. You know that kids in other communities have proper schools. So you begin to feel as if you are a child who doesn’t count for anything... We want our younger brothers and sisters to go to school thinking that school is a time for hopes and dreams of the future. Every kid deserves this.”

Narrator: Shannen passed away in a car accident when she was 15 but the movement she started lives on. It’s called Shannen’s Dream. Please unfold one corner of your blankets and give yourselves a round of applause for the young Indigenous leaders like Shannen who are bringing about positive change.

Scroll 23:Indigenous women have been targeted through federal legislation and policies that divide families and wear down our communities. Residential schools have left a legacy of violence that contributes directly to abuse, especially abuse directed at women and children. Far too many Indigenous women have been left with no safe place to be. And in wider society, gendered stereotypes that demean and sexualize Indigenous women are pervasive.

Scroll 24: Everyday racism causes wounds that are both visible and invisible. This racism leads to terrible consequences for Indigenous women: - Indigenous women are at least 3.5 times as likely to experience violence as non-Indigenous women in Canada. —Statistics Canada 2009- Over 1000 Indigenous women have gone missing or have been murdered since the 1970s. The majority of these have been murdered. —2014 report by the RCMP- These are only the cases that have been documented by the RCMP. The real number is certainly much higher – Carolyn Bennett, Minister of Indigenous and Northern Affairs

Legal Issue K: National Inquiry into Missing and Murdered Indigenous WomenThe Inter-American Commission on Human Rights and the UN Committee on all forms of discrimination against women have both released reports about the high number of missing and murdered Indigenous women in Canada. The Native Women’s Association of Canada have led an 11-year campaign for a national inquiry into this tragic issue. On August 24th, 2016, the federal government designated a two year National Inquiry by an Order in Council.

Narrator: Those with GREEN CARDS – Please step off the blanket. You represent one of the Murdered or Missing Indigenous Women and Girls. Please be silent for another moment to honour those murdered and missing Indigenous Women and Girls.

Despite the enormous losses and grim conditions, and despite the Government of Canada’s centuries of efforts to deny your personhood and take away your identity, as Indigenous peoples you have continued to resist and fight for your rights. You have continued to pass down your laws, languages, ceremonies, and ways of life.

Scroll 25: Blanket Exercise, 4th edition, © 2016 KAIROS Canada. Adapted for law school contexts (Hadley Friedland, Val Napoleon, Naiomi Mettalic), and for BC focus (Ardith Walkem, Halie Bruce, Andrea Hilland, Teresa Sheward)

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We have language immersion programs and healing initiatives based on our traditional values. Our elders are passing on land-based skills to our youth and mothers and grandmothers are working to address violence in our nations by reinstating ceremonies that honour women. Our leaders are using the courts to have our rights recognized and many of our nations are growing. We see treaties as living agreements that, if respected, will allow people from all backgrounds to share the land peacefully and respectfully. We are strong and resilient having survived centuries of efforts to make us disappear.

Legal Topic L: Indigenous Laws and Reconciliation Aboriginal peoples must be recognized as possessing the responsibility, authority, and capability to address their disagreements by making laws within their communities. This is necessary to facilitating truth and reconciliation within Aboriginal societies. TRC Summary of the Final Report at 205.

Scroll 26:“To us the answer is not about incremental change, it is not about just concrete action, it is also repairing the relationship. And the way to repair the relationship between us and Canada is to have this country acknowledge that its richness and its wealth come from their one-sided interpretation of the treaties. There has to be henceforth a double understanding of what those treaties represent.”—Ovide Mercredi, Crown-First Nations Gathering 2012)

Scroll 27:The role of culture within the reconciliation process, I think, is that both Aboriginal and non-Aboriginal cultures alike must respect one another in light of their historical experiences—they have to see eye to eye on healing, so to speak. By this, I mean that there needs to be maximized understanding and trust built between the cultures involved.—David Joanasie, from the Kinngait (Cape Dorset) Inuit Community

Scroll 28:Despite direct assimilation attemptsDespite the Residential School SystemsDespite the strong influences of the Church in Métis communities to ignore and deny our Aboriginal heritageDespite not having a land baseAnd despite our own diversity in heritageWe are still able to say we are proud to be MetisWe are resilient as a weed, and beautiful as a wildflowerWe have much to celebrate and be proud of—Christi Belcourt, Métis artist

Scroll 29:“Our leaders need to show the way, but no matter how many deals and agreements they make, it is in our daily conversations and interactions that our success as a nation in Blanket Exercise, 4th edition, © 2016 KAIROS Canada. Adapted for law school contexts (Hadley Friedland, Val Napoleon, Naiomi Mettalic), and for BC focus (Ardith Walkem, Halie Bruce, Andrea Hilland, Teresa Sheward)

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forging a better place, will ultimately be measured. It is what we say to and about each other in public and in private that we need to look at changing.”—Honourable Justice Murray Sinclair, Chair of The Truth and Reconciliation Commission of Canada

Narrator: The violence of colonization has left a lot of pain. All across Canada, the relationship between Indigenous people and newcomers is often broken. We don’t need more broken promises. We need to repair the relationship and to do this, we need real change.

Legal Issue M: Using Canadian Laws to fight for Indigenous Rights and bring Change:

Many Indigenous people have used Canadian law to have their rights, laws and governance recognized and respected. We have already mentioned R v Sioui, the McIvor case, and the First Nation Child and Family Caring Society human rights complaint. To give few more examples:

Scroll 30: Calder v. BC (1973): This was the first case where a Canadian court acknowledged that Aboriginal Title to land existed prior to colonization and prior to the Royal Proclamation of 1763. This case opened the door to negotiations to Canadian and First Nations governments about lands and rights. 27 years of negotiation later, in 2000, the Nisga’a people who brought this case signed the first modern land claim agreement.

Scroll 31: R v. Sparrow (1982): This was the first Supreme Court case that explained what Aboriginal rights in s. 35 (1) of the Constitution Act are and how to recognize them (and, infringe upon them).

Scroll 32: Delgamuukw v. British Columbia (1997): Hereditary chiefs from the Gitxsan and Wet'suwet'en First Nations brought this case. Although the Supreme Court never decided the question before them, they described what Aboriginal Title is and established the Canadian government has a duty to consult with First Nations.

Scroll 33: Haida (2004) and Mikisew Cree (2005): In these two cases about the duty to consult, the Supreme Court ruled that federal and provincial governments must act in good faith and meaningfully consult with First Nations in cases of unproven claims (Haida) and in cases of historical treaties (Mikisew Cree), in order to uphold the “Honour of the Crown.”

Scroll 34:


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Tsilhqot’in Case (2014): For the first time in Canada, the Supreme Court made a declaration of Aboriginal Title. Aboriginal Title includes the right to govern and manage the lands in question.

Legal Issue N: Indigenous Laws in Canadian Law From as early as 1867, in the case, Connolly v. Woolrich, Canadian courts recognized that there were other legal systems in Canada pre-dating the arrival of the common law. Campbell v. BC AG (2000) recognized Indigenous peoples have a continued right of self-government that was not extinguished by Canada’s constitution or subsequent legislation. Indigenous laws are part of Canadian constitutional and common-law. Chief Justice Beverley McLachlin has stated that access to Indigenous laws is an access to justice measure, and we need concepts of Indigenous justice and the legal processes of achieving justice at the “Canadian justice table”. Chief Justice Beverley McLachlin, Keynote Address (delivered at the Canadian Institute for the Administration of Justice 2015 Annual Conference, Aboriginal Peoples and Law: ‘We Are All Here to Stay’, Saskatoon, 16 October 2015) [unpublished].

Narrator: At the beginning of this exercise, we asked you to ask yourselves – as aspiring lawyers and future members of the Canadian legal profession – why do you think it is important for you to learn the history, and to consider the implications of how Canadian law has impacted Indigenous communities and individuals? The Truth and Reconciliation Commission made several calls to action that are particularly relevant to the legal profession.

Scroll 35:TRC Calls to Action, Call to Action #27:“We call upon the Federation of Law Societies of Canada to ensure that lawyers receive appropriate cultural competency training, which includes the historyand 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 anti-racism.”

Scroll 36:TRC Calls to Action, Call to Action #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 residentialschools, 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.”

Scroll 37:TRC Calls to Action, Call to Action #42:“We call upon the federal, provincial, and territorial governments to commit to the recognition and implementation of Aboriginal justice systems in aBlanket Exercise, 4th edition, © 2016 KAIROS Canada. Adapted for law school contexts (Hadley Friedland, Val Napoleon, Naiomi Mettalic), and for BC focus (Ardith Walkem, Halie Bruce, Andrea Hilland, Teresa Sheward)

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manner consistent with the Treaty and Aboriginal rights of Aboriginal peoples, the Constitution Act, 1982, and the United Nations Declaration on the Rights ofIndigenous Peoples, endorsed by Canada in November 2012.”

Scroll 38:TRC Calls to Action, Call to Action #50:“In keeping with the United Nations Declaration on the Rights of Indigenous Peoples, we call upon the federal government, in collaboration with Aboriginalorganizations, to fund the establishment of Indigenous law institutes for the development, use, and understanding of Indigenous laws and access to justicein accordance with the unique cultures of Aboriginal peoples in Canada.”

Narrator: Ask everyone to look around. At this point, there should be a few people standing on very small areas of blankets and a few more standing in areas where there are no blankets. Ask them to remember what it looked like when they started the exercise and what it looks like now. Ask them to hold these images in their minds.

Then invite everyone to take a seat, and continue with a talking circle, debrief or discussion.

Talking Circle Guided Questions: Sometimes people feel strong emotions after this exercise. Sometimes people need time to think and reflect. Sometimes people have lots more questions. Whatever you are thinking and feeling, it’s normal and okay.

Invite each person to share:(1) One thing they learned today, (2) One thing they would like to learn more about.


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