Indigenous Women’s Voices in Law and Theatre

Beyond looking at official case law, statutes and policies, lawyers should engage with a literary analysis of law that can inform more inclusive conversations about equality.

Below, I turn to both theatre plays and case law on Indigenous women’s sex-based discrimination to demonstrate how literature provides cultural context for cases on the same subject. I invite lawyers to read my Osgoode Hall Law School Master of Laws thesis, The Impact Of The Indian Act On Indigenous Women’s Voices: Rereading Sex-Based Discrimination Case Law Against Indigenous Feminist Theatre Movement Literature.¹ In my thesis, I develop a method to better include Indigenous women and their stories by reading law as literature.

Reading law as literature promotes legal pluralism in law reform discussions.² It allows for Indigenous women’s ideas/cultural norms to be integrated, as unofficial laws, into conversations about how official laws treat them. Since 1975, within the Indigenous Feminist Theatre Movement (IFTM), Indigenous women have written plays about Indian Act sex-based discrimination.³ By voicing their perspectives about cultural identity, they are creating new legal meanings about sex-based equality.

In my thesis, I read international cases along with IFTM plays. I compare Lovelace with Strength of Indian Women by Vera Manuel.⁴ I also compare McIvor with Women of the Fur Trade by Frances Koncan.⁵ My method is inspired by Robert Cover’s Nomos and Narrative.⁶ By contextualizing the cases within the IFTM, I discover that official laws do not make visible the important cultural norms present in the narratives that reflect Indigenous legal orders.⁷

I expose where the law excludes Indigenous women. The cases reversed sex-based discrimination in Indian Act registration provisions that, until 1985, forced Indigenous women to lose Indian Status if they married out to non-Indigenous men.⁸ The rules forced a masking of maternal identities behind non-Indigenous husbands’ identities. In the plays, Indigenous women’s desire for what equality should mean is revealed. Positive roles and behaviours counter stereotypes that assume women are less than men. In the Women of The Fur Trade, Eugenia states that “there’s almost nothing a man can do that a woman can’t do.”⁹

Indigenous women’s own stories create bridges for what equality means, with their input stating that they are equal to men. Comparing this cultural commentary with law reveals that the Indian Act still falls short, because reversing inequality means more than amending rules.¹⁰ Sandra Lovelace and Sharon McIvor both pointed out that the marrying out rules contravened the International Covenant on Civil and Political Rights.¹¹ While bringing claims, however, they had to speak through non-Indigenous masks in court. The plays instead enable Indigenous women to unmask from Indian Act identities and explicitly state, in their own voices, that Indigenous women matter.

To conclude, seeing law as literature is one way lawyers can ensure that the cultural norms and commentary found in Indigenous women’s plays are integrated into legal analysis that has historically excluded their voices. Given the century-long silence in the courts or the theatre about Indigenous women’s equality prior to the IFTM, Lovelace, and McIvor, this is a necessary exercise to bring to light what the law cannot capture: insights unique to Indigenous women’s perspectives, which are only now informing how the law treats them.

1. Carrie Robinson, The Impact Of The Indian Act On Indigenous Women’s Voices: Rereading Sex-Based Discrimination Case Law Against Indigenous Feminist Theatre Movement Literature (Toronto: Osgoode Hall Law School, 2025), online. United Nations Human Rights Council, “About HRC”, online. The international cases are United Nations Human Rights Council cases.
2. Val Napoleon, “What Is Indigenous Law? A Small Discussion” (6 November 2024), online. Napoleon explains legal pluralism. She clarifies that “Indigenous societies were lawful” and explains that Indigenous laws are generated by Indigenous peoples and “within Indigenous communities, between Indigenous communities, and between Indigenous societies and the state (and settler society).” She states that “law is a human endeavour. It is an active collaborative and public process, and is never insulated from the larger social and political forces around it. Rather, law can be understood as being formed by forming those constant social, economic, and political dynamics.” She states that “Indigenous laws and legal orders are comprehensive in scope and depth, and require legitimacy and coherence just as Canadian law does.” I focus on Cover’s theory to acknowledge the same Indigenous legal orders.
3. Indian Act, RSC 1985, c I-5 [Indian Act] Indigenous women began putting up plays dealing with Indigenous sex-based discrimination in New York by 1975 and I refer to this as the IFTM that has continued to today. See Katherine Young Evans, ed by Cheryl Suzack, Shari M Huhndorf & Jeanne Perreault et al, “‘Our Lives Will Be Different Now’: The Indigenous Feminist Performances of Spiderwoman Theater”, Indigenous Women and Feminism: Politics, Activism, Culture (Vancouver, Canada: UBC Press, 2010) at 258-259. Jaye T Darby & Stephanie Fitzgerald, eds, Keepers Of The Morning Star: An Anthology of Native Women’s Theatre (Los Angeles: Regents of the University of California, 2003) at 375-378; all plays are published post-1975 in Ann Haugo’s list of plays written by Indigenous Female Playwrights in North America.
4. Sandra Lovelace v Canada (1977), Communication No. 24/1977: Canada 30/07/81, UN Doc. CCPR/C/13/D/24/1977. [Lovelace]. Shirley A Huston-Findley & Rebecca Howard, eds, “Strength Of Indian Women”, Footpaths & Bridges: Voices From The Native American Women Playwrights Archive (Ann Arbor, Canada: University of Michigan Press, 2008) at 172-199. [Strength Of Indian Women]
5. Sharon McIvor and Jacob Grismer v Canada (2018), CCPR/C/124/D/2020/2010 (United Nations Human Rights Committee). [McIvor]. Frances Koncan, Women of The Fur Trade (Toronto, Canada: Playwrights Canada Press, 2022). [Women Of The Fur Trade]
6. Martha Minow, Michael Ryan & Austin Sarat, eds, “Nomos and Narrative”, Narrative, Violence And The Law: The Essays Of Robert Cover (Ann Arbor: University of Michigan Press, 1992). [Cover] Cover has a law and literature theory where he compares cultural commentary from narratives with official laws to reveal where ideas/cultural norms, as unofficial laws, from the narratives reveal visions and alternatives for what law could mean to include that culture. This explains how a culture can influence laws within the larger world it inhabits that he calls a nomos. Cover is a legal pluralist because he relies on multiple legal orders, principles, voices and ideas to discuss and analyze the law. See at 137, where Cover states that women’s movements can find this sort of vocabulary useful for activism. My thesis is also legally pluralistic because I incorporate the principles and voices of Indigenous women from the narratives into discussions about the Indian Act case law.
7. Supra note 2 regarding an explanation of “Indigenous legal orders” and legal pluralism.
8. University of British Columbia, “Indian”, Indigenous Foundations (16 August 2025), online.“The term ‘Indian’ refers to the legal identity of a First Nations person who is registered under the Indian Act.” This means they have Indian Status if they are registered & marrying out required the loss of this Indian Status registration.
9. Women Of The Fur Trade at 20.
10. Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24. By contrast to the Indian Act, this preamble states, for example: “Whereas Parliament recognizes the disruption that Indigenous women and girls have experienced in their lives in relation to the child and family services systems and the importance of supporting Indigenous women and girls in overcoming their historical disadvantage”.
11. International Covenant on Civil and Political Rights, UNHRC, 16 December 1966, General Assembly resolution 2200A (XXI) (entered into force 23 March 1976, accession by Canada 19 May 1976) (14 December 2024), online.