Authenticity, Injury, and the Law's 'Original Position': Taking Culture Loss to the Courts.

This paper will examine the problematic location of authenticity in recent court cases that deal with the legacy of Indian Residential Schools in Canada. Between 1876 and 1986 the Canadian government ran a system of boarding schools for aboriginal children. Many of the thousands of aboriginal people who attended these schools have sued the federal government for physical and sexual abuse, negligence, breach of fiduciary duty, and significantly, loss of culture and language. Neither the courts nor the federal government will recognize loss of culture and language as a legal cause of action. While the courts have awarded damages for assault they have done so based on a calculation of what the aboriginal plaintiffs' lives would have been like minus their residential school experience. This is the "original position" that all tort proceedings seek to determine, and the courts have constructed these in ways that present aboriginal lives as already highly damaged and culturally compromised. In this paper I will examine the contradictory implications of arguing culture loss as a basis of legal redress. Aboriginal people are more often required to show that they have retained an authentic culture rather than that they have lost one; taking the loss of culture to court presents certain risks and reverses the burden of proof in problematic ways. I argue, however, that loss of culture and language is one strategy—with costs—for aboriginal people to make claims about the broader but less legally recognizable injuries of race and colonization. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]