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68 Sask. L. Rev. 367 (2005)
Removing That Which Was Indian from the Plaintiff: Tort Recovery for Loss of Culture and Language in Residential Schools Litigation

handle is hein.journals/sasklr68 and id is 373 raw text is: SASKATCHEWAN
Removing that which was Indian
from the Plaintiff: Tort Recovery for
Loss of Culture and Language in
Residential Schools Litigation
Zoe Oxaal*
Many former students identify the most painful legacy of Canada's Indian
Residential Schools as the loss of First Nations culture and language resulting
from cultural denigration, religious indoctrination, and the removal of children
from their families. The federal government insists that no cause of action exists
for loss of culture or language arising from the operation of the residential
schools. Nevertheless, claims for loss of culture are proceeding through the
courts. While there has been little substantive judicial consideration of the
merits of cultural loss claims, cultural loss has been considered in the damages
assessment stage of civil actions for sexual abuse. Furthermore, some cultural
loss claims have run into procedural obstacles such as limitation periods and
Crown immunities. This article examines the progress of cultural loss claims to
date and explores tort law's potential to address this issue. The tort of intentional
infliction of mental suffering is analyzed as one potential basis of compensation.
The sexual and physical abuse prevalent in Canada's Indian residential
school system, horrific and debilitating as it was, is not, according to
survivors, its worst legacy. The most painful legacy identified by
many residential school survivors is the loss of First Nations culture
and language, a result of the schools' assimilationist agenda. Loss of
culture and language arose from abusive treatment in residential
schools that included removing children from their families, enforcing
attendance, prohibiting and punishing the use of First Nations
B.A. (Hons.) (Cantab.), M.A. (Warwick), Class of 2006, College of Law, University
of Saskatchewan. I thank Ken Cooper-Stephenson for his helpful comments on an
earlier draft of this article.                                     r

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