Prince Albert Indian Residential School, Lac La Ronge, Canada, 1948. From the Library and Archives of Canada.

Each summer has been a requiem to the dead. Shoulder to shoulder, as in congregational prayer, we fill streets and intone the names of the departed — each line a saf, each police-hemmed formation a prayer row. Our voices are hoarse; they break when there are no loudspeakers. Each protest is a kind of janazah, a funeral without a body.

May they rest in peace, may they rest in power, may they rest — ya rabb, forgive our living and our dead, may their graves be spacious and full of light, may we see their freedom in our lifetimes.

* * *

Years ago, I taught a course called Access to Justice to first-year law students. In Canadian legal practice, “access to justice” is a catchphrase with widely varying definitions, and in this school the course’s instructors had significant leeway to decide their class’s core focus. In broad terms, some elected to focus on the first part of the formulation: Access, often expressed as access to the law. How many people have lawyers? How can court systems adapt to accommodate the increasing numbers of litigants who cannot afford counsel? How might technology bridge the gap left by underfunded and overwhelmed free legal clinics?

Others, like myself, were no less curious about the second of the idiom’s parts: Justice. What constitutes justice? Revenge, relief, rehabilitation? What are we giving people access to?

Midway through the term, having set out many of these tensions, I turned to my students — two dozen odd, varying in age and race — and asked them how many knew what residential schools were.

* * *

In undergrad, I was made to read Duncan Campbell Scott’s poem “The Onondaga Madonna.”

Now more famous for his political career than his poetry, Scott served as deputy superintendent of Canada’s Department of Indian Affairs from 1913 to 1932. In that role, he drove the rapid expansion of Canada’s residential schools, a system gleaned from the US.

Funded by the Canadian government and run by Christian churches, it was ever a misnomer to call these institutions “schools.” They served an overtly and vehemently penal goal. State agents apprehended children from their families, who were fined or imprisoned for trying to hide them. Once detained at the schools, the children were beaten for speaking their languages or observing their faiths. Typically, the schools were less educational than they were sites of forced child labor. Sexual abuse by staff was rampant, and the children were also subjected to experiments by Canadian scientists, including starvation. Those results are believed to have helped shape Canada’s Food Guide.

This mass abduction, abuse, and assimilation of Indigenous children — what Cree poet Billy-Ray Belcourt, in A History of My Brief Body, calls “a governmentally sanctioned death wish” was a key part of Canada’s efforts to destroy Indigenous sovereignty by attempting to eradicate Indigenous knowledge.

By 1907, the Department’s own Chief Medical Officer, Dr. Peter Bryce, had raised the alarm that children were dying at the schools. Bryce’s report was quashed, and he was eventually removed from his role. In 1910, decades before the Nazis would use famously similar language, Scott wrote that the mounting death toll “does not justify a change in the policy of this Department, which is being geared towards the final solution of our Indian Problem.”

Scott was a civil servant par excellence, not only with respect to his acute ambition and immense power, but also per Black Panther George Jackson’s definition in Blood In My Eye: “Anyone who can pass the civil society examination today can kill me tomorrow with complete immunity. Anyone who passed the civil service examination yesterday can kill me today with complete immunity.”

Scott’s genocidal drive is evident in “The Onondaga Madonna,” the most famous poem of his literary oeuvre. Each of the poem’s brief fourteen lines is grievous with cliche and stereotype, centering on his depiction of an Indigenous woman holding a baby boy, whom Scott metaphorizes into death as “the latest promise of her nation’s doom.”

At once morbidly sexual and Christian, the poem is emblematic as settler-colonial fantasy. It has been nearly two decades since I read it in my Canadian Literature class, and while I do not remember much else from that syllabus, I remember still this single stanza.

* * *

Belcourt writes that we live “in the charred remnants of a time during which the voices of NDNs were siphoned out of the theatres of culture and into the wastelands of law and order.” (“NDN” is an Indigenous endonym for “Native Indian.”) He describes death as “always a badlands, a devastated and devastating environment in which no one wants to linger.”

Wastelands and badlands — this is the ecology from which settler law is taught and practiced.
Literally and figuratively: the continent is burning.

Prison guards killed George Jackson a week after he finished writing Blood In My Eye. In the book’s afterword, Huey P. Newton mourns his friend with a love that reverberates off the page. Newton writes, “The state has the audacity to say they have the right to kill. They say they have a death penalty and it’s legal. But I say by the laws of nature that no death penalty can be legal — it’s only cold-blooded murder. It gives spur to all sorts of violence, because every man has a contract with himself, that he must keep himself alive at all costs.”

We shall call this contract self-determination, individual and collective. And unlike the wastelands of the law, this contract with the self is the will to life; it gives life, where the law takes life away.

* * *

When I asked my students if they knew what residential schools were, it was because I assumed they did. We had an upcoming guest lecture on the topic, and I wanted to prep them for their readings.

But only a third of the class raised their hands, comprising predominately the room’s racialized students. These were university-educated adults studying law — the Indian Act is demonstrably more foundational to Canada’s creation and ongoing existence than the country’s Constitution, as we had spent the previous weeks discussing. Moreover, the schools had operated until 1997.

I was floored. How much quiet violence does it take to produce craters of this magnitude, these gaps so big in settler knowledge that they are ruins? It was my first time teaching law, such was the measure of my naivete.

I remain deeply grateful to my colleague and Anishinabe Kwe law scholar Dr. Valarie Waboose, and her thoughtful lecture the following week on Dr. Agnes Grant’s book No End of Grief: Indian Residential Schools in Canada. Dr. Waboose was a quietly forceful presence in that bunker of a classroom. The students grew wide-eyed and their spines softened as they tried to come to terms, during her lecture, with a violence of incomprehensible magnitude, a genocide wreaked under the auspices of the law.

A few brief years later, many of those students would don robes, as I had done, and swear an oath to law and order before families and loved ones, before straight-backed judges and administrators in rooms muggy with velvet and power.

“What class controls the nation’s educational facilities,” asks Jackson, “prints the newspapers and magazines that carry the little cartoons, and omits or misrepresents us to death?”

* * *

Conventional legal education is an exercise in genre: Typically, it presupposes law as nonfiction. It blandly extends court decisions as conclusive depictions of the events that led to courtroom action; this conceit is the heart of legal precedent.

But I wanted my students to read differently. I wanted them to see legal writing as worldmaking — in every sense of the word, from the political to the novelistic. This meant equipping my students with a kind of reading practice that was new to many of them. In addition to the classically doctrinal, my course readings included literature, such as Oglala Lakota poet Layli Long Soldier’s poem “38,” where she notes, “Everything is in the language we use.”

To decipher how litigants are shaped into characters through the court’s truncated biographies of their lives, how emotion is orchestrated in the readers of its decisions, how legal precedent is akin to scriptural exegesis — these close and critical reading skills can give us clearer insight into law’s construction. Far from nonfiction, I wanted my students to see that every legal text is art — at once artful and artifice.

To study a decision, we must look past the surface of its skin and through to the skeleton that enlivens it. It is no coincidence that critical race theory emerged from critical legal studies; for those who look, it is staggering how transparently the law wears the grammar of its violence, a grammar that has power over not only our language but the very materiality of all our lives.

The law is neither magic nor formula. It lives in the body, in how lawyer and litigant alike grow short of breath, in how we feel our stomachs roil, in the crick in our necks and the strain in our eyes. The law lives primarily in the gut, and it is writing outside the law that illuminates how differently what is enacted is embodied among those who create the law and those who must bear it.

Long Soldier’s “38” is an extraordinary poem that unravels the interlocking grammar of law and poetry. It recounts the story of the Sioux Uprising and the “thirty-eight Dakota men who were executed by hanging, under orders from President Abraham Lincoln. / To date, this is the largest ‘legal’ mass execution in US history.” Lincoln had the warriors executed mere days before he signed the Emancipation Proclamation — a law that, contrary to Lincoln’s popular reputation as an abolitionist, announced only the contingent and citizenship-less freedom of a small number of enslaved Black Americans.

In “38,” Long Soldier explains how the US violated its treaties with the Dakota Nation, stole their land, subjected them to mass imprisonment, and eventually deliberately starved them — all policies that mimic those of the residential school system. She writes:

The Dakota people had no land to return to.

This means they were exiled.

Homeless, the Dakota people of Mnisota were relocated (forced) onto reservations in South Dakota and Nebraska.

I think often of how Long Soldier calls this homelessness “exile.” For those like me who came to Turtle Island from colonized deathscapes elsewhere, for whom exile is endemic to a diasporic condition, Long Soldier’s spartan line break is a reminder of the distinct nature of settler-colonization. Belcourt also writes, “I’m both native to and an exile in a museum where hope disappears in clouds of misery.”

* * *

That year of Access to Justice, I was teaching in Windsor. There is something surreal about border towns, how they warp around a map’s fictions.

At its north corner, the campus sits at the feet of a bridge that hangs in midair across the neighboring St. Lawrence River. The Canada/US border dissects the river, Jabberwockian, drafting the natural world into manmade artifice. Above our heads, trucks lumbered back and forth through the sky, bookended by the checkpoints that anchored the bridge at either end.

During lunch breaks, I would walk a few minutes to the grass behind the law school, and there was Detroit across the waterline, a view into another country. Windsor’s squat waterfront — the casino making an outsize interruption midway — faced Detroit’s horizon, that parallel skyline scraggy with dark skyscrapers and deserted offices, a mirror image from an alternate world.

Being riverside was a suspension of disbelief. It required accepting that these cities, so close, were in fact estranged by the water and the air that sat heavy atop them. To look across the waterline was not simply a matter of looking at the other bank, but of looking across the border, as though sight itself were a migration, a minor transgression — or through the border, through the air that hung like a forcefield above the border’s waterlogged razor edge.

But what was weirder still was when fog would fall, so that it became impossible to see through to the other side, to that other country, as though the border had coalesced in air, had become wall, a pathetic fallacy in service of the state.

On those clouded days, it felt like Detroit had not simply disappeared from view, but that Windsor itself had become unreal, untethered from its sibling on the other side of the looking glass.

* * *

The Dakota are members of the Sioux, whose homelands cross from Minnesota into Manitoba, Saskatchewan, and Alberta. The lands and the lives of the Onondaga Nation stretch from Ontario through to New York.

* * *

“So much of being alive in the Americas,” writes Belcourt from Alberta, “is about playing dead.”

In “Rehearsal,” Mississippi activist Baba Lukata writes, “i saw / three little black boys / lying in a graveyard / i couldn’t tell / if they were playing / or practicing.”

* * *

Since at least 2010, the Wetʼsuwetʼen Nation has resisted the expansion of the Trans Mountain oil pipeline through their territories in British Columbia.

In 2019, the Royal Canadian Mounted Police entered Wet’suwet’en territory to enforce an injunction against protesters, sparking solidarity protests through the winter. Across Canada, the year 2020 opened with anti-pipeline direct action, including blockades of commercial railways. These demonstrations were met with police militarization and mass arrests.

Then, on May 25, 2020, in Minnesota, not far from where the 38 Dakota warriors had been executed a century and a half earlier, police officer Derek Chauvin, with the assistance of three other police, killed George Floyd.

Two days later, police in Toronto responded to 911 calls from the home of 29-year-old Regis Korchinski-Paquet. Shortly after their arrival, Korchinski-Paquet fell to her death from her balcony.

The city’s grief was a maelstrom when, three weeks later — on June 20, 2020 — police in Peel, a suburb near Toronto, shot and killed 62-year-old Ejaz Choudry, after his family called a non-emergency line for help with a mental health crisis.

It is a chronology that catches the breath. On June 26, 2020, amidst weeks of protest, the Ontario Superior Court of Justice convicted Michael Theriault, a Toronto constable, for his 2016 attack on Dafonte Miller — an assault that left Miller, then a teen, blind in one eye.

That same day, that same court, under a different judge, issued a decision in favour of CN Railway, which had applied for an injunction against the blockading of its trains. Protestors had gathered at railway tracks in what the court described as an “express[ion of] outrage about police brutality” at Choudry’s death.

“We are living in volatile times,” Justice Frederick L. Meyers wrote. “Urgent, vitally important messages are being delivered in protests across North America and throughout much of the world triggered by the death of George Floyd at the hands of police in Minnesota.”

Nevertheless, Meyers went no further — nor, arguably, could he, constrained as he was by the very law he personifies. After setting out the legal test for injunctions, the brief decision concludes, “the law of trespass does not allow them to invade someone else’s land, to endanger themselves and others…”

Someone else’s land.

Exile / homeless.

* * *

Often, when the children died (were killed) at residential schools, their parents were not informed.

Yet Canada — unlike those many families left to mourn children who never came home — had knowledge enough of its own violence. In its landmark 2015 report, the Truth and Reconciliation Commission stated that an estimated 6,000 children died at the schools.

On May 27, 2021, the unmarked remains of hundreds of children were discovered outside one school, then another, and another. Even now, investigatory teams, many of which are Indigenous-led, are uncovering a growing number of graves at former residential schools. The death toll from just these newly-discovered graves stands at over 1,100, not including the thousands of children already known to have died at these places.

Some of the children were as young as three.

I was born in a country pitted with mass graves and mass disappearances. I come from a war in Sri Lanka where the anonymization of the dead is similarly a wartime weapon, a wounding of presence and of history, an absence felt both in the home and state records, where you do not always have a body to hold, where the government has also claimed there was no genocide.

We live in the afterlife of apocalypse. At best, law is a metaphor for violence. At worst, it is its henchman. When I teach law, it is with grief at my back, and with a sort of dull-eyed search for reprieve. We are ensnarled — our bodies, and our deaths. Our histories and our revolts; each is a story about the other. Our liberations are mutually constitutive, without beginning or ending, in all their mourning and devastation. This is a life-making that implicates the law and does not mythologize it. Here, we do not write hagiographies.

* * *

Sometimes the children survive.

A week into the discoveries of the mass graves, on June 6, 2021, a white man in London, a small city in Ontario, drives his pickup truck through a family of five while they are out on an evening walk. The attack, which targeted the family because they were visibly Muslim, kills a grandmother, two parents, and a teenage sister, leaving only a little boy alive in hospital.

I remember where I was when news broke of the Quebec City mosque shooting in 2017. I remember going into my new job the next day, the haze, the going through motions.

For this small child, his family, I want such a different future. I want boring things, not this endless too-familiar grief.

I am an eldest child, and have long understood my role in relation to my siblings as a last line of defense, a waiting in the wings, a small but fierce measure against their orphanhood, if not my own.

The thought that fells me the day of this particular news is the image of that child coming out of surgery, without his family to hold him, without his sister, even.

Sometimes the children survive, and this, too, is a wailing.

Fathima Cader

Fathima Cader is a writer and was a public interest attorney. She has taught at the City University of New York, Osgoode Hall Law School, and the University of Windsor's Faculty of Law. She holds a Marlee G. Kline Essay Award from the University of British Columbia's Faculty of Law for her essay on R vs NS, the first Supreme Court of Canada case to decide if Muslim women should be allowed to wear veils when giving courtroom testimony.

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