I have thought about Tracey Lindberg’s novel, Birdie every day since I read it.1 The novel is an irreverent, evocative, funny, and hard-hitting book that causes me to think and ask questions about Indigenous law in recent history and today through the lives of the women unflinchingly drawn by Lindberg. I propose that Birdie be approached as a Cree law text—as a performance of law with difficult questions expressed and examined through narrative. This jot is an invitation to readers to join me in discerning law through one of the forms of Indigenous pedagogy and precedent, the narrative or story. I propose a brief legal analysis of Birdie based on the Cree law research completed by Hadley Friedland2 with the Indigenous Law Research Unit, Faculty of Law, University of Victoria.
Cree elder and storyteller, Louie Bird explains that in Cree society, the tasks of both telling and listening to stories are highly intellectual and demanding processes, beyond entertainment.3 He invites readers to attend to the stories by looking for questions, explanations, and subjects. He constantly challenges the reader to keep thinking by interrupting a story to ask, “So … why does the story say that?”4 Or, to ask whether a central character was using power properly.5 Bird’s comment on one story was, “So that is the mystery put into this story to make you think.”6
Cases are law stories about something that has happened and that are publicly recorded in a particular way to be recalled in future collaborative legal reasoning through specific problems. In the same way, Birdie is a Cree law story placed in northern Alberta (near fictitious Little Loon First Nation) about a woman whose life is a personal chronicle of colonial law and history. But it is far more than this. It is also about Cree law that is undermined by colonization, but which has not disappeared, and it is represented by Bernice (Birdie) herself and by the women around her. Cree law is also represented by the concept of pimatisewin (the good life) and through the metaphor of a tree of life called the Kohkom (grandmother) Tree. The Kohkom Tree appears to be dying; it is at once disrespected by non-Indigenous peoples and honoured by Indigenous peoples who search for it. Throughout the narrative, Bernice and the other women gather eclectic ingredients (everything from muskeg, lemon, oolichan grease, cumin, and moose intestine to cheezies and more) for the creation a final healing feast for both the Kohkom Tree and Bernice.
As a child, Bernice experiences the love of powerful women including her mother, the complex Maggie. These women are linked by “an absolute reliance on only themselves”, and are hurt by the too familiar and relentless colonial encounters of violence, racism, alcohol and drugs, and poverty. Lindberg describes the women as being weighed down by the over-responsibility of carrying the load dropped by men who left – to work or not, to cities, to prison, or to just disappear. And, “Bernice wonders how far back, how many generations ago, it was that women took on children, family, home and provisioning”. These women are not perfect. They are flawed and scarred in the way that survivors often are, and they fail to protect Bernice from her uncles who sexually assault her from the age of eleven. Bernice survives by retreating into herself and into silence, and she internalizes the violence wrought upon her.
The women disappear from her life, and Maggie leaves for the infamous (for Indigenous women anyway) downtown eastside of Vancouver. Bernice ends up in Edmonton, living with her aunt (at Pecker Palace), in foster homes, and on the street—in a city where an Indigenous woman was set on fire in a dumpster. She is bullied and ridiculed for being fat, being poor, being a girl/woman, and for being Indigenous. When she returns to visit home, her Uncle Larry tries to assault her again and this time she is able to defend herself. He suffers a heart attack, she refuses to help him, and in desperation she sets a fire and is terribly burned in her escape.
She becomes anisinowin (lost, the act of losing one’s way or being lost) and is scraped off the streets to be placed in a sanatorium for a year. She makes her way to Gibsons, BC following a curious lifeline in the form of a childhood love for Jesse, the young Indigenous man in the TV series, the Beachcombers. She works as a baker for Lola’s Little Slice of Heaven, the forges a friendship and love across difference. Lola does not seem to notice or mind Bernice’s silence. But Bernice continues to retreat deeper into herself where she travels, dreams, searches for meaning and connections, and finally reaches the memory of Uncle Larry and the fire. Her Auntie Val and sister/cousin Freda arrive and with Lola, they try to retrieve her from what appears to be her death bed. They perform ceremony represented by working together to mix and measure, sift and sieve, whip and pour, stir and simmer, chop and dice—to prepare a feast for either Bernice’s imminent death or her recovery.
As with any law case, what one learns from stories or law cases depends on the question asked. There are many ways one could go with Birdie—into same sex relationships, into who can reside on reserve, into missing and murdered Indigenous women and girls, into family law or child protection, into mental health or homeless issues, into displacement from land—the book has all this richness and potential. What I want to ask about is Bernice’s role in the death of her uncle Larry. Would she be found guilty or not guilty according to Cree law? The facts are mostly set out above with the exception of the complicit role played by the women in Bernice’s life who suspected or knew about her abuse.
So what are the legal processes in Cree legal traditions? First, who would the authoritative decision-makers be for Bernice? Cree law has four decision-making groups (i.e., medicine people, elders, family, and community group) depending on the problem to be resolved, their particular role (e.g., persuasive or directive) is determined by the nature of the problem.7 Here, it appears that Bernice’s family members would be responsible to act and to remedy harm, and prevent future harm. But, if the harm of child sexual abuse and sexual assault is identified as affecting the safety of the community, then the community would have to be involved in the decision-making. Given the sexual abuse of Freda and likely others, this could be framed as a community safety issue with ongoing potential danger thereby both the family and community would likely be identified as possible decision-makers.8
Second, what are the necessary procedural steps to determine a legal response? The immediate steps in Bernice’s case are: (i) observing and collecting corroborative evidence, (ii) identifying the appropriate decision-makers to deliberate, determine, and implement a response, and (iii) seeking guidance from those with relevant understanding and expertise. The other steps of recognizing warning signals, warning others, and taking safety precautions would seem to apply to a larger framing of child sexual assault and its prevention as a community issue, and so could also be considered as part of the legal response in Bernice’s case. The corroborating evidence would include the failure of the other adults to protect Bernice and their failure in recognizing the harm to her, and the repeated sexual assaults by Larry and others. At the time Larry’s final assault on Bernice, she protected Freda (whom Larry had also assaulted) who was with her by urging her to run. Alone Bernice defended herself and Larry had a heart attack, falling to the floor. She refused to save Larry and instead set the house on fire while he was still alive. She suffered terribly from burns and trauma compounded by years of abuse, retreating into silence and becoming more vulnerable as a result.
There are a number of possible legal responses and resolutions in Cree law including healing (the predominant and preferred response), avoidance or separation, having Bernice acknowledge responsibility, her reintegration, allowing natural or spiritual consequences, or finally, incapacitation (in the case of severe ongoing danger to the community). I would argue that the first response to Bernice under Cree law would be healing, but with ongoing support and monitoring for possible future dangerous behaviour, mainly to herself. The Cree stories (precedent case law) support this response and she would be treated not as a faceless danger, but as a family member.9
Bernice and the people around her would have a number of legal obligations including the responsibility to help when asked, to prevent future harms, and to warn others once they are aware of risks and dangers.10 Bernice’s obligation would be to give back once she received help.11 Bernice would have a number of substantive rights namely the right to safety and protection, and the right to be helped when incapable or vulnerable. She would also have procedural rights including the right to have her case corroborated by evidence and observation before any action is taken, the right to be heard, and the right to a decision made through an open, collective deliberation guided by appropriate consultation.12 The overall deliberation would be guided by general legal principles of contextualizing responses, valuing and acknowledging relationships, and reciprocity and interdependence.13
Through the book, we can see Bernice’s Auntie Val and Sister/Cousin Freda, along with Lola fulfilling the Cree legal processes, determined the legal response of healing, and being guided by Cree legal principles. They fulfilled their legal obligations and they recognized Bernice’s substantive and procedural rights. All of this is in Birdie—told a way that is lyrical with a punch. It is completely Cree in humour and is funnier than one would think possible, and it employs the story form to cause thinking, questioning, and responding to real life issues. Bernice’s experiences are real, lived everyday across Canada.
Birdie portrays Cree lawlessness through the breakdown and suffering of Bernice at the hands of her uncles and in the non-response of her family and community, by her abandonment. It portrays the women coming together, through their hardships to rebuild Cree lawfulness by taking responsibility for Bernice and healing her, and ultimately integrating her back into their lives. They invite the rest of her relatives to the feast and in doing so, they bring the collective together around Bernice.
I went to Tracey Lindberg’s reading when the book was released. One of the questions was about Larry and whether Lindberg had factored in the likely abuse that he would have suffered. Lindberg responded that she had also experienced abuse, but that she has not abused anyone else. If Larry had lived in the story, whether he was abused is a different legal question and would have to be dealt with as a separately in Cree law. If Larry had not died, his abuse of Bernice could also be framed in Cree law and reasoned through in order to determine a legal response for his actions.14
I urge all to read Birdie and to seriously engage with its complexity, to enjoy the humor (it is called darkly comic on the inside front cover), and to be provoked into asking questions and into complex conversations.
- I am a member of Saulteau First Nation. I am also the Law Foundation Chair of Aboriginal Justice and Governance and the Director of the Indigenous Law Research Unit at the Faculty of Law, University of Victoria. [↩]
- Hadley Friedland, Cree Legal Traditions Report (2013). A summary version of the report is available online. [Cree Legal Traditions Report]. [↩]
- Louis Bird, The Spirit Lives in the Mind: Omushkego Stories, Lives, and Dreams (2007). The entertaining or harsh subjects are mnemonic devices intended to create memory and capture imaginations. [↩]
- Id. at 34. [↩]
- Id. at 48. [↩]
- Id. at 16. [↩]
- Cree Legal Traditions Report, supra note 2 at 12. [↩]
- This is not to blindly idealize the family and community, if both are unhealthy, it is possible to identify broader kinship networks. See for example, Val Napoleon, Living Together: Gitksan Legal Reasoning as a Foundation for Consent, in Challenges of Consent: Consent as the Foundation of Political Community in Indigenous/Non-Indigenous Contexts (Jeremy Webber & Colin McLeod, eds., 2009). [↩]
- Id. at 27-29. [↩]
- Id. at 28. [↩]
- Id. [↩]
- Id. at 47. [↩]
- Id. at 51. [↩]
- For a discussion on rules of force in Indigenous law, see Val Napoleon and Hadley Friedland, From Roots to Renaissance, in Oxford Handbook of Criminal Law (Markus Dubber, ed., 2015). [↩]