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Thursday Thinkpiece: Lussier & Stechly on Decolonizing the Canadian Guide to Uniform Legal Citation

Periodically on Thursdays, we present a significant excerpt, usually from a recently published book or journal article. In every case the proper permissions have been obtained. If you are a publisher who would like to participate in this feature, please let us know via the site’s contact form.

“Other Materials”—Traitorous Love and Decolonizing the Canadian Guide to Uniform Legal Citation
(2022) 53:2 Ottawa Law Review 302, 2022 CanLIIDocs 1622

Dr. Danielle Lussier (@daniellelussier) is a Métis mother, beadwork artist, and lawyer from Treaty 1 and the Homeland of the Métis Nation. She currently serves as Associate Vice-Principal Indigenous Knowledges and Learning at the Royal Military College of Canada. Steve Stechly (they/them) (@StechlySteve) is a graduate of the University of Ottawa Common Law program with a specialization in “Aboriginal Law and Indigenous Legal Traditions.”

Excerpt: pp 313-320 [Footnotes omitted. They can be found in the original via the link above]

INDIGENOUS REPRESENTATION IN THE CANADIAN LEGAL LANDSCAPE

In 1998, Patricia Monture wrote: “[w]hen reading the Supreme Court of Canada’s decision in Delgamuukw, I did not fail to notice that the imminent scholars the Court chose to quote were (significantly) all white men.” Now leading precedent in Canadian Aboriginal law, the decision produced in Delgamuukw v British Columbia has been cited countless times in both the courts and the legal academy. Coincidentally, Delgamuukw was one of the first cases where the Supreme Court of Canada conclusively stated that Indigenous oral histories were admissible evidence as an exception to the hearsay rule. Now, over two decades of jurisprudence and academic commentary later, the Guide still remains silent on how to reference Indigenous oral histories despite their significant contribution and importance to Aboriginal law. While it would be impossible to measure, based on our own experiences within the academy and legal profession, we note that the implications of this silence are severe and can result in a cooling effect on reliance or engagement with Indigenous Knowledge systems and knowledge keepers. The lack of guidance effectively replicates and compounds colonial understandings of legal knowledge, and through its erasure, ranks Indigenous Knowledge as lesser than other forms that are expressly enumerated in the Guide.

Citation guidance for a diverse range of Indigenous Knowledge would greatly expand the pool of available “legal” resources. We draw attention to the word “legal” in order to acknowledge that inclusive Indigenous citation practices would include scholars in the colloquial sense as well as Elders, peers, and youth. We would note that such knowledge has been previously categorized as “extra-intellectual,” and Indigenous citation guides would ignite a process of legitimizing the use of Indigenous Knowledge, shared by Indigenous peoples, in both the courts and academic institutions.

Professor Hewitt defines decolonization as the complicated work of acknowledging and claiming responsibility for wrongdoings through “naming, dismantling, countering and neutralizing both the collective and individual assertions and assumptions made in relation to Indigenous peoples.” This is not an insignificant project, in the context of postsecondary education. The academy often makes the ridiculous assumption that research and law is a European import to North America, building off a long-held pretense of positional superiority—the theory that positioned Indigenous Knowledge as existing for Europeans to discover, extract, appropriate, and distribute.

However, Indigenous peoples have employed Nation-specific research methodologies to investigate problems, gather and analyze data, present findings, and theorize, since time immemorial. The process of decolonization addresses and seeks to undo a collective amnesia of Indigenous memories, knowledge, and research methodologies caused by colonization. However, in an effort to classify decolonial work as active rather than reactive, Dr. Tracey Lindberg employs a narrative of Indigenous resurgence (renewal). This language is echoed by many other Indigenous scholars.

Indigenous resurgence within academia takes place across a breadth of fields, methodologies, and identities, too diverse to sufficiently cover in this short paper. Paulina Johnson warns that employing a generalized decolonial theory risks overlooking unique and even multicultural worldviews that are expressed through Nation-specific research methodologies. However, in the spirit of reconciling uniform legal citation with diverse and complex Indigenous Knowledge systems, we will approach citational politics with a generalized view of decolonial thought in order to contribute to this emerging conversation.

A common thread throughout various approaches to Indigenous resurgence is relationality. Dr. Shawn Wilson states that a “relational way of being is at the heart of what it means to be Indigenous…[i]t’s collective, it’s a group, it’s a community.” In espousing a scholar-sisterhood practice, Dr. Heather Shotton, Dr. Amanda Tachine, Dr. Christine Nelson, Dr. Robin Zape-tah-hol-ah Minthorn, and Dr. Stephanie Waterman assert that relationality is the core that informs Indigenous scholarship. Furthermore, the relationality imbued within community information transfer contributes to the continuity of cultural knowledge. Indigenous citation guides would uphold and contribute to the resurgence of communally held knowledge by employing relationality in ways, for which Western approaches to legal citation fail to account. As Dr. Margaret Kovach states, by incorporating Indigenous Knowledge systems and research frameworks that are distinctive of cultural epistemologies we are able to challenge and transform the institutional hegemony of the academy.

Indigenous legal citation practices would also contribute to a much broader conversation on Indigenous style guides and knowledge transmission. Importing relationality into citation practices will help bolster existing Indigenous publishing and editing practices which uphold protocols observing respect for Elders, knowledge holders, and oral traditions generally. It is worth expressly stating, for the sake of absolute clarity, that nothing in the following discussion should be read as an absolute or as a proposed universal standard practice. Indigenous information and protocols are not standardized and there is no universal protocol to apply to every Indigenous Nation. Gregory Younging suggests, and we wholeheartedly agree, that any person doing work that centres Indigenous Knowledge should collaborate with the Nation at the centre of the work. Younging further states: “[o]nly Indigenous Peoples speak with the authority of who they are, connected to Traditional Knowledge, their Oral Traditions, their cultural Protocols, and their contemporary identity.” We absolutely agree that communities who have long been excluded from research must be recentred in research processes. Here, we offer a contribution on this academic concern in a spirit of exchange and with a view to ensuring that when knowledge is shared or generated, it can be properly valorized and, where possible and appropriate, amplified.

We are cognizant of the fear of making mistakes while engaging in decolonial work and the cooling effect that fear can have on open dialogue. In offering our perspectives here, we are reaffirming our commitment to consenting to learn in public and welcome the dialogue that may flow from it.

CITATIONAL POLITICS IN THE LEGAL ACADEMY

Daniel Heath Justice teaches that when pieced together, citations have the potential to demonstrate the “embraided influence of words, ideas, and voices on the topic at hand.” However, before engaging in a decolonial approach to legal citation, specifically with regard to the Guide, it is important to situate what citational politics are and how Indigenous scholars have mobilized this conversation. We acknowledge that this is a contribution to a collection of much deeper discussion on Indigenous experiences in legal academia. The “Citation Practices Challenge,” organized by Dr. Eve Tuck, Dr. K. Wayne Yang, and Rubén Gaztambide-Fernández, offers critical context:

Indeed, our practices of citation make and remake our fields, making some forms of knowledge peripheral. We often cite those who are more famous, even if their contributions appropriate subaltern ways of knowing. We also often cite those who frame problems in ways that speak against us. Over time, our citation practices become repetitive; we cite the same people we cited as newcomers to a conversation. Our practices persist without consideration of the politics of linking projects to the same tired reference lists.

When speaking about how non-Indigenous scholars cite Indigenous authors, Dr. Kyle Powys Whyte points out that Indigenous women and Two- Spirited authors are rarely acknowledged. Additionally, Indigenous scholars are mostly cited for their “critical work and not their main body of work.” In the same conversation, Dr. Sarah Hunt argues that not only should Indigenous scholars be cited more, so should community sources.

Citing a diverse range of Indigenous Knowledge holders is important because citations are a tool that are used to measure an academic’s intellectual influence with implications for hiring, promotions, and performance evaluations. Dr. Carrie Mott and Daniel Cockayne suggest that academics should adopt conscientious citation practices and acknowledge that citations directly impact the cultivation of diverse information.

WHERE TO BEGIN WITH AN INDIGENOUS LEGAL CITATION STYLE?

In speaking about Indigenizing publishing practices, Wendy Whitebear, a manuscript reviewer at the University of Regina Press, shares: “Indigenous ways of knowing and being should inform the work of publishing. I would like to see a future where this is usual and ordinary, like the pen on your desk.” The work of Gregory Younging is an essential starting point for these discussions as he offers 22 guiding principles for elements of Indigenous style guides. We are guided by the first of such principles, which states that “[t]he purpose of Indigenous style is to produce works that: reflect Indigenous realities as they are perceived by Indigenous Peoples; are truthful and insightful in their Indigenous content; [and] are respectful of the cultural integrity of Indigenous Peoples.”

Throughout the available literature, decolonial citation methods are most often centred around Indigenous oral knowledge. While oral knowledge undoubtedly plays a significant role across Indigenous Laws and Legal Orders, we will also provide a sample of Indigenous citation methods for “extra-intellectual knowledge,” such as personal knowledge and dreams, along with constitutionally significant beadwork. Our discussion seeks to contribute to a more fulsome discussion of culturally appropriate citation practices for all forms of Indigenous Legal Knowledge. While we do so, we are cognizant that across many modes of Indigenous Knowledge transmission, social media, and other forms of digital dissemination and storage have increasingly contributed to cultural resurgence. With this in mind, inclusive legal citation methods require significant digital focus in order to sufficiently uphold Indigenous Knowledge.

Citing Indigenous Oral Knowledge

Review of the Guide in its 9th edition reveals that beginning the process of Indigenous Knowledge inclusion actually requires only slight adaptations of existing citation formats. For example, section 6.10 “Addresses and Papers Delivered at Conferences” already provides some direction on oral knowledge transmission. The Guide suggests the following format:

Speaker, | “title” or Address | (lecture series, paper, or other information | delivered at the | conference or venue, | date), | publication information or [unpublished].

The Guide therefore recognizes that oral transmission of knowledge is not a foreign concept in legal spheres and this could serve as a starting point on which to build more inclusive citation practices that can account for Indigenous Knowledge sources.

Other academic citation manuals such as the APA 7th edition and MLA 8th edition have adopted versions of an Indigenous oral knowledge citation format created by Lorisia MacLeod at NorQuest College Library. MacLeod is a member of the James Smith Cree Nation and one of several Indigenous librarians who are at the forefront of decolonizing libraries and academic information systems. Indigenous citation methods contribute to prioritizing Indigenous voices through the concept of “nothing about us without us.” The original citation format suggested by McLeod is as follows:

Last Name, First Initial., | Nation/Community. | Treaty Territory if applicable. | Where they live if applicable. | Topic/subject of communication if applicable. | Personal communication. | Month, Day, Year.

This citation practice is used when in direct communication with an Elder or Knowledge Keeper, and should be used in consultation with the person providing the information. For example, where the person lives could raise safety concerns, and may or may not be included depending on individual preferences.

Under section 8.9 “Personal Communications,” the APA 7th edition echoes ethical concerns and suggests working with Indigenous peoples in order to ensure the material is appropriate to publish, and the integrity of Indigenous perspectives are upheld. The MLA 8th edition offers similar yet less robust versions of this citation practice, and an Indigenous style guide is being worked on in the Chicago format.

However, across existing citation practices, if oral knowledge is “recoverable by readers” in articles, books, or digital formats, it is suggested that the information be cited in the format of the main source. Applying this practice, an oral teaching from an Elder published in an academic journal would, therefore, forever after, be most appropriately cited as a journal article. The same would be true for any oral knowledge found in a digital format that has an existing citation style.

While citing electronic sources may initially seem like a Eurocentric approach to citation, this would ignore how Indigenous peoples have mobilized digital knowledge acquisition, storage, and sharing. In fact, the digital is beginning to replace or supplement the physical when it comes to Indigenous Knowledge and online sources are innovative and integral pieces to Indigenous cultural resurgence.

The Guide is already poised to include digital Indigenous Knowledge, albeit inexplicitly. In Section 6.19 “Electronic Sources,” the Guide offers fairly robust guidance ranging from websites to podcasts, to social media posts. That being said, there are multiple considerations to assess before, somewhat blindly, incorporating the oral knowledge methods of APA and others into the Guide.

Some scholars have expressed caution in revealing too much Indigenous Knowledge through Western forms of research, making “available through texts what should have never been written down.” In this sense, introducing Indigenous Knowledge into the academic sphere through Indigenous citation methods that later become engulfed in a Western approach may strip oral histories and stories of their significance, and may be culturally inappropriate. In fact, some Indigenous storytellers are so concerned about protecting cultural knowledge from widespread use and appropriation that they recommend copyright be retained before sharing stories. Copyright and intellectual property rights to oral knowledge reflects the need for acknowledgement “based on respect for territorial origins and cultural protocols.” While intellectual property law is not the focus of this paper, it is important to acknowledge the need for responsible stewardship of Indigenous oral knowledge.

The citation of a story presented by Dr. John Borrows reimagined as an Anishinaabe case, entitled Nanabush v Duck, Mudhen and Geese, offers insight into this discussion. An initial approach could be to cite it as the APA citation manual would suggest—simply a pinpoint within an academic journal—as the Guide provides inadequate guidance. Dr. Borrows, meanwhile, proposes his own citation for the teachings formatted as Anishinaabe case law as follows:

Nanabush the Trickster v. Ducks, Mudhen and Geese (Time Immemorial), 004 Ojibway Cases (O.C.) (1st) (Anishinaabe Supreme Court) 40, [hereinafter Nanabush]. G.E. Laidlaw wrote the judgement of John York, Alec Philemon and Rose Holiday concurring, Justice Windigo dissenting. See G. Laidlaw, ‘Ojibway Myths and Tales,’ Twenty-Seventh Annual Archaeological Report 86 (1915); R. Dorson, Bloodstoppers and Bearwalkers (Cambridge: Harvard University Press, 1952) at 49.

Although we are unable to determine whether the footnote was included in the bibliography of this article, it demonstrates that, as early as 1997, Indigenous scholars were formulating decolonial legal citation practices. In addition to the proposed citation format, Dr. Borrows also provides an introductory footnote explaining the Neyaashinigmiing origin of the story and offers it to the reader: “John Nadijwon was a friend of my grandfather’s. They often hunted together, and over the years my grandfather shared many stories with him. John told me these stories in this context, and I pass them along in the same way to acknowledge the influence of my grandfather in their continuation.” This demonstrates just one example of how Indigenous Knowledge may be conveyed, and how the footnotes of academic work tell very important stories. In the future, it will be our responsibility to listen to Indigenous authors and peoples we collaborate with for specific ethical considerations when reproducing or transforming oral knowledge.

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