Indigenous litigiousness: The oven bird’s song and the miner’s canary

The oven bird’s song, as captured in Robert Frost’s evocative poem, speaks to the marking of time and the inevitable changes wrought by the passing of the seasons. The bird’s clear sweet song reminds us that youth and adulthood is followed by old age and death, and that the world cannot remain the same. David Engel refers to the song in the title of his essay to evoke the ways in which the people of Sander County voiced opposition to personal injury litigation. Their collective concerns are interpreted - as is the oven bird’s song - as a lament; a lament to the lessening in their minds of a traditional way of living and being. In this chapter I turn to another bird: the “miner’s canary,” which refers to canaries being used by coal miners in Britain as an early warning system and an essential element in keeping miners safe from harm. The bird was taken in a cage with the men down to the bottom of the shaft. When the delicate bird showed signs of distress it meant that fresh air had turned sour and the miners needed to quickly get out of the deep underground tunnels, or succumb to carbon monoxide poisoning. I like to think of the oven bird and the miner’s canary singing to each other across time and space in ways that both resonate and contradict. Their commonality lies in the sense that both evoke the marking of time, transition, and change, as well as impending threat. From spring to winter, from fresh to poisonous air, the birds symbolize shifting conditions, nostalgia, melancholy, and ultimately a deep sense of loss. In David Engel’s chapter, personal injury litigation becomes the legal front through which Sander County locals voiced their dismay at the increasing encroachment by industry and “foreigners” into their established set of social, political, and economic relations. Opposition to personal injury lawsuits became the official mechanism through which to sort the “insiders” who belonged and shared the town’s cultural values (including notions of injury) from “outsiders” who didn’t understand how the system worked. As Engel compellingly argued, opposition to personal injury lawsuits operated to galvanize thinly veiled articulations of social anxiety and racialized fear that informed the local blaming of outsiders for the inevitable altering of the rural small-town community.