Canada’s Indigenous Rights Framework: A (Bad) Proposal Emerges

Last Week the Assembly of First Nations hosted a national meeting on the federal government’s proposed “Rights, Recognition and Implementation Framework”. This is legislation purporting to affirm constitutional rights, move communities away from the Indian Act, and articulate a vision of self-government. While Yellowhead published a critique of the Framework as it was emerging last June, and others have also raised concerns, this meeting was actually the first time the government presented a substantive proposal.

The proposal was met with resistance by most of the elected First Nation leadership who were present, justifiably so. As suspected, Canada is seeking to entrench a version of contemporary state-Indigenous relations merely re-branded as reconciliation.

There are three major concerns with this proposal.

First is the role of the provinces and territories, or rather their lack of any role in this process. Canada insists rights recognition “must respect division of powers” and must not “encroach on provincial and territorial jurisdiction”. This is repeated throughout their document for emphasis—to the point that the proposal reads like a defence of Canadian federalism from the threat of Indigenous rights. A Recognition and Implementation of Provincial Rights Framework.

But any serious recognition of Indigenous rights means land. Land and resources are, of course, under the constitutional purview of provinces. Without engaging them meaningfully to address land restitution, there can be no recognition of rights
For all the talk of self-determination and a new approach to Aboriginal title, we can expect very little change in the relationship if provinces are not prevented from further dispossessing Indigenous peoples from their lands and shaping policy that harms communities.

Second, it is now clear that the legislation is primarily a tool to empower the federal government to recognize “legitimate” self-governing First Nations. Somehow immune to the irony of this approach, the drafters of Canada’s plan double-down on federal authority over First Nations, as opposed to “get(ting) out of the way” as Minister of Crown-Indigenous Relations Carolyn Bennett asserted at the AFN meeting last week.

Deviating from existing self-government policy, this legislative process will require new institutions to facilitate recognition in one of two ways:

Expert advice on recognition could be offered by an independent body that is temporary and unique to each First Nations’ circumstances; A more permanent body and with a wider range of responsibilities that could include resolving disputes and funding “nation-building” practices.

In either case, they will limited to making recommendations to the Minister (and Cabinet), an approach that solidifies the age-old Indian policy principle of Ministerial discretion.

Third, and perhaps most telling of the government’s bait-and-switch on Indigenous rights, is the non-committal approach to any notion of fulsome Indigenous jurisdiction whatsoever.

On Aboriginal title, the legislation “may” recognize it or its “coexistence” alongside Crown title, instead of, you know, recognizing it (as courts have done). And on the United Nations Declaration on the Rights of Indigenous People (UNDRIP), Canada will “align with the articles” of UNDRIP, as opposed to implementing them. This sort of hedging may be the enduring feature of the Trudeau government’s Indigenous relations.

Beyond the discursive tools to limit jurisdiction, there are also the elements of Canada’s proposal that describe First Nation authority specifically. First Nations may determine membership, develop internal governance processes (rule-making, financial management, delegation powers, etc.) and make laws respecting language and culture. That’s it. But these are “powers” band councils already have access to through a custom code process.

Indeed, the legislation proposal seeks to make law what Indian Act exit opportunities have existed in policy for at least 30 years The Federal Court of Appeal’s TransMountain decision condemned Canada’s approach to consultation as note-taking. Canada’s 89 “engagement sessions” with communities on the Framework included much criticism but no indication that those concerns altered the path of the proposed legislation. Last week the Prime Minister “berated” Saskatchewan Chiefs for taking too long to express their concerns in a meeting. Finally, despite uncertainty and calls for a re-start of the Rights Framework process by First Nation elected leadership, Canada pushes ahead on its own timeline.

I think we can confirm that caution is justified.

https://yellowheadinstitute.org/2018/09/19/canadas-indigenous-rights-framework-a-bad-proposal-emerges/

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After AFN national chief election, apathy and resignation remain (co-authored with Vanessa Watts)

This week in Vancouver, Chiefs at the Assembly of First Nations re-elected Perry Bellegarde to a second term. With the complexity and confusion of First Nation politics generally, Mr. Bellegarde earning the sixty per cent of votes required on the second ballot should be considered significant support. Chiefs, it seems, have endorsed Mr. Bellegarde’s reconciliatory politics, and by extension, Liberal visions of the nation-to-nation relationship.

This year’s election of the National Chief for the Assembly of First Nations was in many ways reminiscent of previous AFN elections, with a focus on treaties, sovereignty and land: the First Nation equivalent of “jobs, jobs and jobs.” But there was also a familiar critique: The AFN leadership is too closely aligned with the Liberals, and too out of touch with the people.

Candidates Russ Diabo – who is on the Yellowhead Institute’s advisory board – andSheila North Wilson in particular emphasized this point throughout the campaign, the latter telling the Assembly, “We need a national chief who can sit at the table with the Liberals without becoming one.”

This alignment with Canadian government and subsequent critique has been an increasing trend since the AFN’s founding in 1982. The previous National Chief, Shawn Atleo, was forced to step down as a result of community pressure after working too closely with Stephen Harper.

At this point, discussions among First Nation citizens about the AFN now seem to oscillate between apathy and resignation. Ideas on restructuring the organization to make it more accountable to citizens barely register. Old proposals for the AFN’s long-overdue modernization are only half-heartedly recycled. Meanwhile, the demand for a universal vote allowing individuals, and not just Chiefs, to select the AFN leader gets little traction. There is growing sentiment that the AFN and citizens are approaching an impasse.

This is not to say the organization hasn’t made some gains in recent years.

Mr. Bellegarde’s first term coincided with the election of a Prime Minister eager to make real change on First Nation issues. So there are lot more meetings with cabinet (even a memorandum of understanding to institutionalize an AFN-Canada meeting schedule), and with it more resources. Not only for communities, water quality on reserves and child welfare reform, but for the organization itself: Under Harper governments, AFN funding hovered at around $9-million. The 2018 budget is $32-million.

These are important developments considering the pressures on elected bandcouncil chiefs tasked with finding answers to the needs in their communities, from safe housing to fire and rescue services to employment opportunities.

The election, then, demonstrates a delicate balancing act between calls for sovereignty, diplomacy and appeasement, and addressing inequities back home (there is little room in the federal budget for criticism).

But even when these gains are measured against losses, the AFN is still in the hole.

Consider the concept of self-determination, championed in the Royal Commission on Aboriginal Peoples (1996). Originally a collective goal for First Nations to escape colonial policy and centre Indigenous governance systems with expansive jurisdiction, self-determination is increasingly lauded by the AFN as the vehicle for individual band management of by-law style government, and a source of authority by which to participate more fully in resource extraction.

Indeed, the Liberal government’s drafted self-government legislation, expected before the next federal election, seems to reflect this articulation. Somehow, self-determination has become replaced with Indian Act-style hopes and dreams. Somehow, sovereignty has become an echo of the thousand paper cuts of federal Indian policy and programming.

Yet, 60 per cent of Chiefs voted for it.

Like the Indian Act or the Band Council model, the AFN is ultimately a product of our colonial relationship with the state. While it was originally conceived to challenge that relationship, times have changed. As an advocacy organization built from the ground up to hold the state accountable for its relentless machinations against First Nations authority and sovereignty, the AFN now seems to run interference for the state.

This is the impossible reconciliation First Nation citizens are forced to make every time the AFN holds an election.

https://www.theglobeandmail.com/opinion/article-after-afn-national-chief-election-apathy-and-resignation-remain/

Wholesale Rapid Removal Of The Indian Act Without Alternatives Will Be Met With Resistance

Few seem to realize the rapid pace of legislative and policy change proposed by the Liberal government on Indigenous issues; from Indian Status to fiscal relations, self-government and land claims. Most revolve around a proposed Rights, Recognition and Implementation Framework legislation, coming sometime this year.

Last week, Yellowhead Institute published a report called Canada’s Emerging Indigenous Rights Framework: A Critical Analysis to help break it all down. But one area that requires additional context is around the ongoing movement away from the Indian Act.

There is no question that the Indian Act must go. Its assimilation provisions, restrictions on mobility, violating nearly every treaty, aggressive patriarchy, and the dismantling of authentic First Nation governance models is all well documented. So the question becomes which path do we take from here?

Of course there has been change and proposed changes in the past.

After First Nation political organizing following World War Two, a Liberal Government of Louis St. Laurent introduced wholesale amendments to the Act in 1951. Most of the cultural and mobility prohibitions were lifted. However, St. Laurent refused to address First Nation demands for self-determination.

Then in 1968-1969, another Liberal Government, this time led by Pierre Trudeau, promised progressive movement away from the Act but delivered the much maligned White Paper on Indian Policy, a plan to effectively liquidating First Nation rights under the auspices for improved service delivery. The White Paper was rejected nearly universally by First Nations.

Jean Chretien’s Liberals attempted reform with the 2002 Governance Act, but it too was rejected by First Nations because it maintained an interventionist role of the Minister of Indian Affairs, entrenched the band council system (with added accountability measures), and excluded First Nation women.

In these cases, Liberal governments consulted extensively with First Nations (each proposal was formally introduced after a year of dialogue); First Nations greeted the initial

consultation with optimism; and finally, there was profound disappointment when treaty rights, genuine self-determination or First Nation input generally was ignored.

This very brief context is instructive as we find ourselves once again in familiar circumstances: a new Liberal government is attempting to remove the Indian Act, there is a consultation period, though truncated, and an apparent “nation-to-nation” collaboration. If history is a guide, the final act here is betrayal.

In the meantime, there is also one key difference in the current version of this pattern.

The Indian Act is no longer the monolith it once was. Rather, since the introduction of a 1985 amendment allowed First Nations to take control of band membership, there has been a quiet proliferation of Indian Act exit opportunities. These exits include subsidiary pieces of legislation that neutralize certain provisions in the Indian Act. From the First Nations Land Management Act (1999) to the First Nation Election Act (2015). As more elected band council’s enter into these processes the Indian Act becomes unbundled.

The current government’s approach, at least what we can determine of it at this point, takes advantage of this fragmentation.

A lesson has been learned: the wholesale rapid removal of the Indian Act without alternatives will be met with resistance. So instead, when the government introduces the Rights Recognition and Implementation Framework legislation, the exit will be optional, though strongly encouraged, and targeting regional groups or individual bands. In this way, First Nations can be more easily divided.

Elected band councils who go through a capacity building process, financial management certification, and service delivery re-organization will be eligible for a narrow version of self-government outside the Indian Act. For those not deemed eligible or those who continue to resist, the Indian Act will remain in place.

A new means to scrap the Indian Act has been discovered. But the ends appear the same. For First Nation communities and elected Chief and Councils, caution is merited. And for elected MPs, within or outside government, transparency, accountability and honesty on this “new” approach is overdue.

https://www.hilltimes.com/2018/06/18/148077/148077

A different PM Trudeau, same buckskin jacket. But where is the ‘real change’ for Indigenous peoples? (co-authored with Shiri Pasternak)

During the Harper decade, Indigenous peoples knew where they stood. His government, and really the past 150 years of Canadian governments, were clearly hostile. The past two years of a Liberal government, however, have been more confusing. On one hand, Justin Trudeau is praised internationally for making the relationship with Indigenous peoples, as he says, his “most important.” On the other hand, he is heavily criticized for symbolism over substance.

While this debate goes on, we have been slow to realize that the Trudeau government is actually pressing ahead with a dizzying amount of legislation andpolicy affecting Indigenous peoples. In fact, when you consider three pieces of legislation already passed and 13 pieces of legislation introduced or proposed (including private members’ bills), over the span of a four-year period, this Parliament could be the most active since Confederation. If all the bills become law, they would represent 40 per cent of the total legislation on Indigenous issues.

The anchor for these changes is called the Rights, Recognition and Implementation Framework legislation (or the “Rights Framework”), which the government plans to introduce later this year, and implement before the next federal election. In February, the Prime Minister outlined a process to move away from the Indian Act, end chronic underfunding, and address land-claim issues. Going forward, the Prime Minister said, “this legislation will guide all government relations with Indigenous peoples.”

While the legislation is not yet introduced, the Yellowhead Institute, with a network of primarily First Nation policy analysts across the country, has been reviewing government literature, policy drafts and official statements to predict what’s coming. That analysis can be found in a report we released this week called Canada’s Emerging Indigenous Rights Framework: A Critical Analysis.

Critical, because we find that despite the flurry of activity, it is nearly all directed at repackaging old, discredited policies. This is an attempt to maintain a modified version of the status quo, and as such, given Mr. Trudeau’s rhetoric on “real change” and the “nation-to-nation” relationship, there is also an effort to mislead First Nations on the transformational nature of this proposal.

Before we get into our concerns on the Framework, positive developments in the federal government’s recent record should be acknowledged: water infrastructure on reserves, resources for education, an anticipated end to the oppressive third-party management system – and despite some disappointing results, the government did launch an inquiry on missing and murdered Indigenous women and girls. (These initiatives must be credited also to the demands for justice by First Nations who organized primarily in grassroots movements.)

While we applaud the efforts by this government, they are, frankly, the bare minimum and relatively straightforward to address. It is the more institutional andstructural changes that have the potential to affect our collective relationship for generations to come that requires scrutiny. That’s what the Rights Framework proposes to do, starting with the Indian Act.

Addressing the Indian Act has been an continuing issue for Canada since the 1960s and Justin Trudeau is only one in a long line of candidates, the most famous of whom was his father. Pierre Trudeau, who introduced a “white paper on Indian policy,” recommended the rapid repeal of the Act, at the expense of treaty rights. The proposal was defeated by a powerful First Nation movement.

Justin Trudeau, though wearing the same buckskin fringe jacket, proposes a somewhat different tack. This government seeks a gradual elimination of the Indian Act through a piece-by-piece dismantling of the legislation and voluntary opt-out processes. However, First Nations will be opting in to a new self-government model that is focused largely on re-entrenching reserve-based, administrative governance. How is this different from the current circumstances? It’s not, really.

There will be changes to the way services are delivered. Federal officials are championing an aggregation-based model where communities cluster together to administer social policy (e.g., education, health care, housing). This is what the Liberals refer to as “reconstituting nations.” The long-term goal is that the newly created Department of Indigenous Services will cease to exist as these aggregate “nations” are devolved responsibility. It isn’t clear yet whether that responsibility includes authority or simply administration.

There will also be changes to fiscal policy. New 10-year grants are being offered to replace the largely ad hoc and unpredictable year-to-year funding model. These grants will only be available to First Nations that pass transparency andaccountability tests and earn certification, reminiscent of a Harper government approach. Moreover, without a commitment to increased financial support, chronic underfunding may actually continue, but now in 10-year intervals.

Troubling, and central to our critique, is that land and resources are delinked from these processes. We agree with the Royal Commission on Aboriginal Peoples, which stated in 1996, “a critical element of fiscal autonomy is a fair and just redistribution of landand resources for Aboriginal peoples. Without such a redistribution, Aboriginal governments, and the communities they govern, will continue to lack a viable and sustaining economic base.” Emerging federal policy on landandresources does not address redistribution of landand resources.

For instance, in response to a recent landmark Supreme Court decision that recognized First Nations have significant authority over lands not covered by treaty, the Liberals will be revising the land-claim policy and moving away from large-scale modern treaties toward a piecemeal approach. A range of options is being tested at more than 60 negotiation tables, but since these negotiations are confidential the future direction of the policy is unclear. Considering that government interpretations of land rights have been traditionally narrower than the courts’, we are concerned this is a risk-management strategy to avoid dealing honourably with First Nations.

Finally, there is the issue of consent. At the heart of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is the notion that Indigenous peoples be empowered to give their consent (or not) on everything from resource extraction to real estate development on their territories (reserve or otherwise). While the Liberals have endorsed the principle and voted on Romeo Saganash’s UNDRIP bill, their draft legislation on the new environmental-assessment processes (the trigger for consulting Indigenous peoples) completely avoids consent. This, too, is troubling.

Taking these proposed changes together, we find that nearly all of Canada’s proposed changes to its relationship with First Nation peoples neglect issues of landrestitution, genuine self-determination and treaty obligations. Instead, they focus on the creation of self-governing First Nations with administrative responsibility for service delivery on limited land bases. Decision-making powers are constrained to the local (including any notion of consent). Provincial, territorial and federal governments will continue to patronize and intervene in the lives and lands of First Nation peoples.

The danger of accepting government messaging, and the Rights Framework as currently articulated, is entrenching this situation for the long-term and settling for a very narrow vision of Indigenous jurisdiction. This is not the shape of a nation-to-nation relationship.

https://www.theglobeandmail.com/opinion/article-a-different-pm-trudeau-same-buckskin-jacket-but-where-is-the-real/

The Wigwam Conspiracy: why are Canada 150’s Indigenous people stuck in time? (Co-authored with Erica Violet Lee)

“Exile is more than a geographical concept,” he said. ”You can be an exile in your homeland, in your own house, in a room.” — Mahmoud Darwish

The wigwam conspiracy

A common theme in Canada’s 2017 celebrations is the inclusion of Indigenous peoples, and in the early months of this auspicious year, a trend is emerging. That inclusion is signalled via familiar symbols, often the “Indian Village.” At Ottawa’s Winterlude, New Year’s Eve celebrations in Saskatoon and across the country at official Canada 150 events, you will find blow-up igluvigaq, the ubiquitous tipi and maybe a reconstructed wigwam, too.

But touring these exhibits, the familiar tropes immediately appear, ready for Canadian consumption: tanned hides, basket-making workshops and bannock over a fire. Of course the vast majority of us do not live in the tipi or wigwam today. And in 1867, many of our ancestors were living in framed-timber homes. So why don’t Indigenous peoples get the benefit of a contemporary existence and why are the default images in Canada at 150 the performance of stereotypes?

In their proper context, these symbols and practices are appropriate. Tipis are used for ceremonial purposes in Nehiyaw askiy, only along with extensive pole and hide teachings; likewise with the lodge in Anishinaabe aki. But out of context, their warmth and complexity are undermined by the flimsy-cloth-draped-over-sticks versions found at Canada 150 Indian villages.

In the midst of a party celebrating Canadian civilization, Indigenous peoples appear as static, stuck in time. It becomes apparent that 150 years of “progress” is made possible by emphasizing fabricated notions of Indigenous primitivity. Those original nations are presumed extinct with the emergence of Canada, or perhaps they failed to evolve into the present.

Both impressions permit the Canada 150 party to take place without critical reflection and more, permit colonialism’s ongoing free entry. This is the inclusive message of a drafty wigwam.

Just don’t drink the water

Earlier this year, Prime Minister Justin Trudeau told a crowd in Saskatoon that — contrary to what the First Nations leaders say — what the youth need is “a place to store their canoes and paddles so they can connect back out on the land.” It is a kind of paternalism that has shaped Canada’s policy toward Indigenous communities (and specifically children and youth) since 1867.

Cree lawmaker Romeo Saganash took issue and responded in a letter. He also challenged Trudeau’s reference to the land and water: “It is time for the federal government to help maintain our very important spiritual connection with the water. This is a connection that your government further embraces through your approval of projects like Site-C, Kinder Morgan, and the Muskrat Falls Dam.”

The hypocrisy highlighted here speaks to the illusion of Canada. The narrative of this place, self-styled as true North strong and free, leviathan of boreal, granite and freshwater, hiking, paddling, environmentalism and stewardship. These national touchstones are the epitome of cognitive dissonance. Politicians love wilderness, sure, but they love pipelines more.

While Canadians grow richer on clear-cut forests in northern Saskatchewan, bitumen extracted from central Alberta and diamonds from the James Bay lowlands, Indigenous peoples are dispossessed or poisoned out of their homes. Grassy Narrows, Akwesasne, Little Buffalo, Aamjiwnaang, among others, are all familiar with the process.

On-reserve, northern and urban communities alike struggle for safe, affordable housing, with clean drinking water and the comfort of a room or a bed. Many Indigenous people are packed tightly in the extreme corners of our territories while the moose, deer, muskrat and owl are exiled all together. This unfolds as Trudeau, in another replica — this time of this father’s buckskin fringe jacket — paddles towards the camera, killing the river in his wake.

The fire next time

South of the medicine line, that increasingly militarized and foreign border, residents of Oceti Sakowin at Standing Rock burned their tipis and other shelters on the eve of their removal and arrest. To the aghast non-Indigenous onlookers this appeared reckless.

But Indigenous Rising Media explained that “based on the behaviour of the law enforcement in the past, who during raids have broken and thrown away sacred items and who have shown disregard and horrible disrespect to tipis and sacred dwellings, it is best to burn these sacred structures instead of having them desecrated by Morton County and North Dakota law enforcement.”

This was the honourable send-off to temporary homes that provided warmth and safety, undeserving of a fate in the hands of clumsy invaders. The Lakota and their allies sought to avoid the careless destruction of this ceremonial presence. The soil, the fire and the ashes are much deeper than symbols — they are teachings, attachments, memories and resurgence.

There is a truth about many Indigenous homes, inaccessible to Canadians despite the poking and prodding. The smouldering remains, that broken down car in the front lawn, toys scattered across the road: each are manifestations of our love in disarray. They are symbols of Indigenous resourcefulness, testaments to endurance against the odds and in some cases, pride.

Homeland security

There have always been divergent stories of “home” in Canada. Mythic, pluralistic Glowing Hearts, on one hand, oppressive Home on Native land, on the other.

In the former, symbols dominate: empty wigwams and tipis because they don’t speak back to paternalism; sacred stories removed from their keepers to prevent carrying the memories of our worlds into the future; and Indigenous peoples themselves as tokens because tokens offer consent.

In the latter story, the notion of home is one of appropriation, poison and exile, yet sacred all the same because Indigenous realities are not so easily excused or obscured. Indigenous cultures, art and people do not exist for entertainment or gross domestic product nor to soothe reconciliatory anxiety.

Beyond the pretense of inclusion, our resistance remains and our lands, bodies and homes are worthy of care; a galaxy that colonization will never appropriate or erase.

Home is carried on our backs and in our hearts.

Joseph Boyden, where are you from?

My name is Hayden King. I am the son of Hayden (Sr.) and Carol. On my father’s side I am Anishinaabe, Ojibwe from my grandmother Eleanor and Potawatomi from my grandfather, Rufus. Through blood and adoption we can trace our roots back seven generations. But eventually threads of this lineage were woven together on the sandy shores of Gchi’mnissing, or Beausoleil First Nation (Christian Island), in southern Georgian Bay.

I offer this orientation as a matter of custom. Among Anishinaabeg, it is an expected response to the standard greeting-question, “Where are you from?” For we are a people of renewal, a people seeking each other out in our century-long reclamation of culture, language, family and identity. We are a people bound by our relationships.

But earlier this week, after years of unclear answers to this question from celebrated Canadian author Joseph Boyden, APTN reporter Jorge Barrera, supported by independent researchers, investigated the author’s claims and couldn’t find evidence of either Nipmuc or Ojibwe heritage. It appears that Mr. Boyden has not been forthcoming about his indigenous identity, benefiting from a crafted ambiguity.

Mr. Boyden is just the latest. Last year prolific scholar Andrea Smith’s claims to Cherokee ancestry were debunked. Before Ms. Smith were academics Susan Taffe Reed and Ward Churchill, writers Margaret Seltzer and Archie Belaney (Grey Owl), actors Espera Oscar de Corti (Iron Eyes Cody), Johnny Depp and so on. There is a long tradition of playing Indian.

While Canadians (and some indigenous people, including other Anishinaabeg) have responded to these findings regarding Mr. Boyden with support for the author, it is important to recognize that this kind of behaviour is also pernicious, in a variety of ways.

Firstly, it misrepresents indigenous peoples. When Mr. Boyden’s novel The Orenda was published in 2013, I wrote a critical review. For me, the work seemed detached from the claimed indigenous voice. Of course, while the diversity of indigenous peoples makes defining that voice challenging, it universally comes from our experiences as indigenous. Without that experience, results inevitably include inaccuracy and stereotypes.

Taking this further, consider some of the implications for public discussions on reconciliation. Is it the case that one of the pre-eminent indigenous voices in Canada is not indigenous at all, but a white Canadian speaking to other mostly white Canadians? And so we have yet another avenue to ignore indigenous perspectives.

Ethnic fraud, in general, takes up time, space and resources. In a Canada finally aiming to include indigenous peoples and offer limited restitution, there are grants and awards targeting those in the arts marginalized by colonialism. The list of brilliant and deserving but barely surviving indigenous writers and artists is very long. So when (already privileged) writers claim prizes for their performance instead of real indigenous peoples, the result is material harm as well as insult.

Ethnic fraud sabotages the necessary work of rebuilding indigenous nations. In his statements, Mr. Boyden has invoked Anishinaabe, Nipmuc, Métis, Two-Spirit and Bear Clan affiliations (this week he squarely identified as Anishinaabe). These terms are not hollow or symbolic. They situate individuals in a framework that requires obligations and accountability to communities. Misleading claims, void of embodiment, break tenuous indigenous social systems down even further.

Ethnic fraud alienates those struggling to find their identities. Indigenous identity has been fragmented by maze-like colonial categories. So this discussion is not easy. For those adopted or taken away from their communities, or those dealing with assimilation’s toll; there are the light-skinned and light-eyed, the tens of thousands raised in cities, and of course the utterly devastating insistence on blood quantum by the federal government. Many of the individuals trying to make their way back are all the more confused by the inconsistent and shifting parameters set by prominent ethnic frauds.

Taken together, playing Indian should not be ignored or excused but exposed.

Whether this column, the APTN investigation, the outrage on social media over the past few days – none of it is about envy, shaming or being #NativerThanYou. There are few Anishinaabeg (or Mi’kmaq or Métis) who haven’t struggled with their identity, certainly I have and continue to. The difference is that most approach the search for answers with humility and honesty – to do otherwise leads instead to appropriation, misrepresentation and ultimately causes real harm.

For Anishinaabeg then, in these bewildering times, asking where you’re from can be as much a greeting as a form of self-preservation.

http://www.theglobeandmail.com/opinion/joseph-boyden-where-are-you-from/article33441604/

Anatomy of a Treaty

Before Canada was a country, treaties dominated the landscape. Between Anishinaabeg and Haudenosaunee, or Nêhiyaw and Dakota, or Muskego and Inuit, formal arrangements to share the land and undertake peaceful relations were common. We have stories of the very first treaties — treaties with the land itself (with the bear, the deer, the waters and so on) — that stretch back thousands of years.

When settlers eventually arrived in this part of the world, they were greeted by treaty-makers.

The French were brought into the Mi’kmaq political economic sphere, the Dutch and the English into the Haudenosaunee, and so on. Later there would be Confederation-era treaties and the so-called modern treaties. Indeed, the central custom that defines us is the treaty. More than mere documents or transactions, treaties shape our relationships as Canadian and Indigenous peoples. A treaty is not merely a document — certainly not to First Nations. Treaty is a practice. A practice that endures over time. That is: a custom. And Canadian governments’ track record with them may be an indication of why the country is so warped.

Treaties past: First contact, Confederation and the Indian Act

After the near century-and-a-half of early, contentious relationships that followed the arrival of colonizers, the English formalized their framework for treaty-making in 1763 with King George’s Royal Proclamation, solemnized a year later in the Treaty of Fort Niagara. This proclamation stipulated that if the English wanted to move west of the Great Lakes, they would require the permission of the First Nation landowners who lived there. This set the stage for Confederation-era treaty-making, which started in earnest with the Numbered Treaties — 11 of them — negotiated between 1870 through to 1921, which captured most of the country from northwestern Ontario to the Rocky Mountains. Aside from a number of other small treaties — the Douglas Treaties — on southern Vancouver Island, the colonial government decided to stop there.

This hesitation (or neglect) resulted in vast areas of the country — the North and almost all of British Columbia and Quebec —going without treaties.

Where treaties were made, they immediately were broken — or, rather, interpretation issues immediately surfaced. Canadians viewed the 11 Numbered Treaties as transactional: negotiations of cash for land and sovereignty. First Nations, however, viewed treaties as long-term pacts of peace, friendship and mutual support. This disagreement was manifest most acutely in relocation schemes organized by the Canadian government, interventions in Indigenous community affairs, the overthrow of First Nation governments, restricting access to resources, and other forms of interference in Indigenous life. As Cree legal scholar Sharon Venne notes, none of these measures were agreed to in the First Nation interpretation of treaties.

All of the above actions were taken via powers Canada granted itself in the Indian Act, the legislative framework that sought to both standardize and enforce Canada’s narrow view of treaties. When First Nations protests of these actions didn’t subside, the federal government amended the Indian Act in 1927 to outlaw First Nations from sharing their opinions publicly or organizing politically. This meant the Canadian interpretation prevailed, in the public square and in courts. First Nations had few avenues to even articulate the sort of agreements they presumed treaties to be.

This ban is an important part of the story. Resistance to it mounted, and in 1951 the act was amended to remove many of its restrictive features, including the suppression of political organizing.

As a result, those concerned about settlers on land without treaties flooded the system with complaints. In 1973 Frank Calder, on behalf of the Nisga’a Nation in British Columbia, argued before the Supreme Court that Nisga’a title to land existed and had not been extinguished. While it was a split decision, the court agreed. As a consequence the Crown is required to address Aboriginal title claims where there are no treaties. Canadians living and working on those lands are effectively illegal squatters.

Around the same time, the James Bay Cree learned of Quebec’s plans to flood thousands of square kilometres of Cree land for a hydro power project — non-treaty land the Cree had not agreed to share with Quebeckers and Canadians. They sought to prevent the development and assert their rights in the courts. With a Cree victory in Quebec Superior Court and a savvy public relations campaign (in addition to Calder’s efforts), Canada began to consider a new policy for Aboriginal title lands. In other words, Canada was pushed to begin making treaties anew.

Treaties present: A renewed legal process

The modern treaty era began in 1973, when the federal government opened an Office of Native Claims to initiate a revised treaty-making process for First Nations in Canada. Two years later the James Bay Cree and province of Quebec negotiated the James Bay Northern Quebec Agreement. An Aboriginal self-government policy was drafted soon after, and applied to the modern treaty negotiations that would come.

According to Indian Affairs Canada, since then 26 arrangements — including treaties; umbrella agreements (treaty frameworks); agreements-in-principle (AIPs), which can last for decades; and sectoral self-governing agreements — have been completed, with another 100 modern treaties currently under negotiation between federal, provincial/territorial and Indigenous governments. These include treaties with a dozen Yukon First Nations reached between 1993 and 2005; the aforementioned Nisga’a Nation’s treaty, reached in 2000; and the Tsawwassen treaty in 2009. Entire territories, including Inuvialuit (in 1984), Nunavut (in 1993), Nunatsiavut (in 2005), and Nunavik (in 2008) have all been created as a result of modern treaties and self-government agreements.

This year, the Deline Got’ine finalized their agreement with Canada and the Northwest Territories, and the Algonquins of Eastern Ontario have accepted an agreement-in-principle for a treaty expected to be finalized within the next five years.

While there has been some variation, the model for contemporary treaties has generally remained the same: In exchange for extinguishing (or modifying) Aboriginal title to 90 per cent of their surface territory and 99 per cent of their sub-surface (and potentially mineral rich) territory, First Nations or Inuit receive hundreds of millions in cash, local or regional self-government independent of the Indian Act, and a consultative stake in developments in their now-ceded territories. While in practice these treaty terms are a great deal more complicated, this is the basic exchange.

Treaties future: Fixing a flawed system?

But even though treaties continue to be negotiated today, there are still challenges with the process. Agreements often take an extremely long time to negotiate, usually decades, and the negotiation process is costly — sometimes prohibitively so. By the time a treaty is finalized, First Nation signatories often owe tens of millions in accrued legal debt to Canada, which comes off the top of their cash settlement.

There is also a power imbalance in negotiations that take place within a Canadian legal framework, with Canadians setting the terms of negotiation.

Further, modern treaties universally have implementation problems. The Land Claims Coalition of Canada was formed in 2003 and today counts every single First Nation or Inuit modern treaty signatory among its members. Its purpose is to lobby the Canadian federal, provincial and territorial governments to honour their sides of the treaties they’ve signed, which they routinely fail to do.

Finally, those old interpretation problems about the spirit of a treaty remain. In each northern jurisdiction today, the nature of modified Aboriginal rights and title is before the courts. Can the Yukon government pass a regional land use plan without considering modern treaty signatory input? Can the government of the Northwest Territories unilaterally change the terms of a constitutionally entrenched treaty? Do the Inuit have a right to say no to seismic testing in their waters? These won’t be the last disputes.

Because of these challenges, the future of our treaty system today is uncertain. Last year, the British Colombia government temporary suspended its participation and some First Nations, such as the Tsilhqot’in and Heiltsuk, are exploring non-treaty approaches to asserting their jurisdiction on title lands. They may never sign a treaty. Yet for others, modern treaties are a fact of life. As my colleague Frances Abele says, some Gwich’in and Eeyou Istchee generations today simply know nothing else.

Perhaps their descendants can avoid the betrayal that typically comes with treaties in Canada.

http://tvo.org/article/current-affairs/shared-values/anatomy-of-a-first-nations-treaty

 

The Secret Path, Reconciliation & Not-Reconciliation

Last night I watched Gord Downie perform The Secret Path in Ottawa. I was invited by one of the executive producers, and sat near the front with other guests. A Nēhiyaw senator sat ahead of me, an Inuk political leader in the seat behind. In fact the front rows seemed to be nearly exclusively Indigenous people, including the Wenjack family front and centre. Behind us, were predominately White Canadians.

Together we witnessed an event that was utterly devastating but at times also contrived.

There were three elements to the evening. There was the concert itself, the music written and performed by Downie, Kevin Drew, Kevin Hearne, among others. This took place against the backdrop of illustrator Jeff Lemire’s animated film. Finally, there was a post-concert epilogue led by Mike Downie and including a short video from Marten Falls.

The music was typical jangle-rock-growl Gord Downie but also melodic, and poetically crafted into the story of Charlie Wenjack’s flight from Cecelia Jeffrey residential school in 1966. Each track worked together to describe a boy alone at the end of the world, cannibals on his heels. On more than one song Downie uses the phrase “this earth-like world”, evoking Charlie’s landscape. It is a facsimile of the original. Here, settlers have arrived, consumed, and transformed/destroyed the familiar. But Downie blows on the ashes and embers that remain. Performing “Haunt Them” he stares down the crowd at The National Arts Centre and I imagined him thinking: you, yes you, deserve to be haunted.

It was pain, though, that was the predictable and over-arching theme of the show. As the music began and before Downie even opened his mouth I wanted to cry. This is a story after all of an 12-year old boy escaping his captors and attempting, failing, to walk an impossible 600 kilometers in the northern Ontario winter to be with his family again. While the pain is captured in the poetry and music, the animation drives it home, often uncomfortably. From the very first scenes, Charlie’s humanity is stripped away. It is difficult to watch and I have to wonder about the result if taken on by an Indigenous artist.

Going into the show, a concern for me was the chronic re-victimization that accompanies most discussions of residential school. I, and many of my peers, have a very difficult time talking about or teaching them in class. The trauma is not something you can slip in and out of. And the story told over and over traps us in a narrative of powerlessness and hopelessness. The concert would have replicated this trend were it not for the Wenjack family.

Before the performance started, the large group at the front were loud, joking and laughing. Meanwhile the crowd behind them was stoic and serious. When Downie sang and wailed, they did, too. They moved to the music in their seats. They cried, at times. And after the musicians left the stage and a short video began, showing the tall birch trees among boreal forest of Marten Falls, they raised their arms, whistled, and celebrated home. They did what the concert was unable to: they showed that they are not merely victims. When the end of the world came, they persevered and they endure today in the most inexplicably vivid ways.

In that video, Charlie’s sisters meet with Downie and they discuss the music, the project, and his cancer. They take him to Charlie’s grave. Towards the end, Charlie’s sister Pearl speaks to Canadians about the need for reasonable access to education for First Nation children. She wants a high school in every community to save the students from being forced to leave, like Charlie was. And unlike Charlie, perhaps saved from a lonely death, an all too-common occurrence in contemporary Canada.

After the music and the film and the short video, Gord Downie’s brother Mike came on stage to introduce all the people who made the project possible (including an advertisement for the corporate sponsors, energy and rail companies among them). Recognizing the contributions gave way to an uncomfortable editorializing of the show. It was proclaimed that we all just took our first giant step towards genuine reconciliation. For me, this reflected a sense of self-importance, which betrayed the spirit of much that came before it. The decision to determine and articulate what is and is not reconciliation belongs to survivors.

When Pearl finally got to speak, and sing a healing song – and she did so on a level equalling Downie – she finished by telling the crowd: “my father died not knowing why Charlie died. My Mother still does not know why.” After a silence someone in the middle of the theatre, perhaps inspired by the reconciliatory theme of the postscript shouted, “to bring us together!” In that moment I could not imagine a more grotesque thing to say, shocking and predictable at the same time. Because I suspect that individual would not, for one second, sacrifice their son or daughter for our unity. The capacity of some Canadians for reconciliation is often so clearly shallow.

Finally, there was time for closing words from Gord Downie, who hesitated at first and then leaned into the microphone, gifts from the community in his hands, and said, “it’s time to start, folks.” Its time for change, time to do the right things. There was never a greater understatement spoken in this country. Still, I believe it was genuine. For all the airy talk of national reconciliation, the concert ultimately felt singular to me. It was one man’s public apology. Or perhaps the Downie family’s, who are coming to terms with a different kind of of grief. But for their part, the Wenjacks accepted it with dignity.

Indian Status: Why are we Still Hanging On?

After my daughter was born, her first official document, before a health card or long-form birth certificate, was an Indian status card. There were few reasons to rush, but I somehow needed her identity confirmed in lamination. This, despite the knowledge that status is an artificial designation created by a colonial government to eradicate Indians, in a legal sense at least.

So, as I think about whether status is still important in 2016, I struggle to untangle the contradictions between the assimilatory aims of status and my eagerness to sign another generation up. Settler pre-occupation with defining “the other” in the Americas reaches back to Columbus and the question of how to legally steal land and enslave New World black and brown people. Theologians decided that faith in God was the mark of the civilized, which conferred rights to land and life. Coincidentally, no faith could be found in the Americas. Indian meant heretic.

Further along in the story of status are the proto-Canadian Gradual Civilization Acts of the 1850s. They reflected similar ideas of a savage-civilized binary and encouraged First Nation people to accept citizenship by enfranchising (abandon status to become god-fearing farmers and honorary white men). To do otherwise meant a non-human designation, as the Indian Act proclaimed to decades later: “The term ‘person’ means an individual other than an Indian.”

From conception, status was meant as a temporary designation on the path to post-Indian. It sought to override authentic First Nation notions of belonging and identity and thereby erase the foundations of original governance and social structures. To a great extent, it has been successful, seen in the divisions between status and non-status Indians as well as the mass exclusion of First Nation women. The deployment and maintenance of status has been a tremendously effective tool for Canada in the efforts to unmake First Nations.

So why do many First Nation people still hold on?

I learned recently that a friend, after 25 years of bureaucratic wrangling, finally obtained her Indian status. She told me that she wept with joy. And even though she has close connections to her First Nation, it was status that allowed for a true sense of belonging. It meant she could live in the village, be buried there, have access to (limited) programs and services, and have benefit from aboriginal and treaty rights. (Or at least join the rest of the status Indians waiting for Canada to honour aboriginal and treaty rights).

Later, I was discussing all of the above with a small group of friends. Red and white certificates of authenticity in hand, it turned out we were all expired. One among us told a story about her recent trip to IKEA, where she tried to convince the cashier of her official Indian-ness in light of her card’s expiry date. She held the line up and argued and finally got that 8 per cent discount. The savings mattered. But I think there was something else too.

Gaining status or using status holds the federal government accountable for a history of neglect. It is a public shaming of the absurd nature of the Canada-First Nation relationship: “I survived genocide and all I got was this particleboard dresser!” It is a refusal to abdicate to the overbearing insistence among Canadians that our so-called special rights disappear. It is a small act of resistance, even if a potentially Pyrrhic one.

Of course, there are alternative forms of defining identity, membership and citizenship in communities. We have clan-based and other kinship systems, adoption processes and welcoming ceremonies – many of which are being revitalized at First Nations and in cities. When my community began thinking anew about the issue, we employed the concept edbendaagzijig. The translation is “those who belong” and comes from an old word for “the Creator.” So we belong to the creator or, in another translation, the land. We do not belong to the federal government.

Yet Indian administrators refuse to acknowledge that, deviate from the concept of status, or transfer control. First Nations likewise steadfastly refuse to disappear.

All of this means that Indian status remains important in 2016 and will endure for at least another generation yet.

http://www.theglobeandmail.com/opinion/indian-status-why-are-we-still-hanging-on/article31692545/

Canada and UNDRIP: A Chronology Characterized by Confusion

Indigenous nations have sought to assert jurisdiction in their territories since the first settler arrived. Whether through trade, treaty, negotiations, the courts, or via blockade, that demand has been crystal clear. Canadian governments have responded with a variety of half-measures, from the land claim system to consultation guidelines, or open violence and criminalization. Almost always, conflict endures.

Last week the Government of Canada signalled an opportunity to exit this cycle with the end of its objector status, adoption, and implementation of the United Nation’s Declaration on the Rights of Indigenous Peoples (UNDRIP). This includes the contentious principle of free, prior and informed consent (FPIC). While the development could represent that long hoped-for opportunity to reconcile competing claims to sovereignty, the discussion to date has instead been characterized by confusion.

Consider the chronology of Canada’s official positions on UNDRIP – and specifically FPIC – since October 2015.

Fall 2015: When Prime Minister Trudeau campaigned for the Indigenous vote last fall, he seemingly endorsed FPIC, suggesting that on pipelines, mining, or industrial forestry in Indigenous territory, “no would absolutely mean no.” Complementing these commitments, Trudeau promised to implement the Truth and Reconciliation Commission’s Calls to Action and UNDRIP, both of which emphasize FPIC. In nearly seven months since forming government, opportunities have come and gone.

January 2016: One of those opportunities arrived when the ministers of Natural Resources and Environment unveiled interim changes to the environmental assessment process (it is through this process where existing consultation requirements are triggered). The federal government made clear in the new changes, “Indigenous peoples will be meaningfully consulted, and where appropriate, impacts on their rights and interests will be accommodated.” Of course consultation and accommodation do not allow for consent (or lack thereof), meaningfully or not.

April 2016: Last month Cree NDP MP Romeo Saganash introduced a very straightforward private member’s bill that would commit the federal government to implement UNDRIP. It was received with hesitation by the aforementioned Minister of Natural Resources, Jim Carr, who suggested the government is already working on a “Canadian definition” of the Declaration. What is a Canadian definition?

2010 to present: When the previous government signalled intentions to endorse UNDRIP, Ministers of Indian Affairs Strahl, Duncan, and Valcourt, one after another, all emphasized the “aspirational” nature of the Declaration and that section 35 of the constitution already included rights captured by UNDRIP. Interestingly, the latest Minister of Indigenous Affairs Carolyn Bennett used very similar language at the UN last week, suggesting Canada will “fully implement UNDRIP without qualification” through a “section 35 framework.”

Currently, section 35 of the constitution mandates governments to merely consult and accommodate Indigenous communities negatively affected by policy, law, or development. Indeed, over the past 30 years the courts have laid out infringement tests on Aboriginal title and treaty lands, precluding the requirement that governments obtain and respect consent. So unless the current government plans to amend the constitution and import UNDRIP into section 35 to ensure that courts, provinces/territories, and future governments are forced to honour FPIC, Minister Bennett’s promise to “fully” and “without qualification” implement UNDRIP seems untenable. A Canadian definition of UNDRIP remains elusive.

February – May 2016: Adding to this doublespeak by the federal government is shifting language by the First Nations leadership. At an Assembly of First Nations (AFN) energy forum last winter, National Chief Perry Bellegarde took the opportunity to ceremonially blanket the Minister of Natural Resources and call for “inclusion into decision-making” (a significant contrast from free, prior and informed consent). Indeed, the National Chief has oscillated from suggesting there is no veto in UNDRIP – a constant position over the past year – to insisting last week that FPIC means “respecting no” which seems like a veto in all but name. So which is it?

After months of discussion and statements from official representatives, we are somehow no closer to clarity on Canada (or even the AFN’s) position on UNDRIP and FPIC. Will Romeo Saganash’s private member’s bill become law? Will the government introduce its own legislation? Is there a consultation framework to determine the path forward (and who will be represented)? Will the new environmental assessment process include FPIC? How will the provinces and territories be included? Will a constitutional amendment be considered? How exactly does this government interpret section 35? Does the AFN support Indigenous communities’ right to a veto on federal and provincial decisions on their land? The questions go on, and on.

Unfortunately at this point, the only thing we know for sure is that Indigenous communities in the way of development will continue to assert jurisdiction and attempt to enforce their own versions of FPIC. It is a transparency that federal and First Nation politicians could learn from.

http://www.northernpublicaffairs.ca/index/canada-and-undrip-a-chronology-characterized-by-confusion/

 

If we want to end indigenous suffering, we must end colonization (co-authored with Tanya Kappo)

Sometimes the absence of death is a month, maybe two. Lately it has been only weeks, and even days. Increasingly, our communities are declaring states of emergency as a response to suicide and suicide attempts. For many of us, the state of emergency simply doesn’t end. For communities like Neskantaga, Pimicikamak, Pangnirtung, and Attiwapiskat, this is the reality.

The response from Canadians to these states of emergency has followed a predictable pattern: Suicides (or suicide attempts) lead to calls for help; there are news headlines; sad prime ministerial tweets; the dispatching of crisis teams; and repeat.This week, there were 11 suicide attempts in Attawapiskat. And while we may never understand individual motivations, we have evidence of the kinds of conditions that lead to that depth of despair.

Generally, suicides and suicide attempts result from factors such as mental health issues, post-traumatic stress, or substance abuse. In our communities, these factors are magnified by nearly two centuries of colonization: assimilation legislation, rapid cultural loss, dispossession of lands and economies, poor housing, and lack of access to clean water.

These conditions result in life always near death. Communities are constantly treading just above the surface of the water, and trying not to drown.

Explaining the source these crises is relatively straightforward. But communities know the solutions, too: authentic opportunities for the full reclamation of our identities – our languages, our cultures, our traditions and our relationship with the land and waters. This would require restored jurisdiction, honoured treaties, health care and education. This would bring an end to being forced to live in conditions of poverty.

We believe, and are supported by the Indigenous academic and policy research on suicide in First Nation and Inuit communities, that colonization is the problem. The obvious solution, then, is to end the colonization.

Twenty years ago, Canada published the findings of The Royal Commission on Aboriginal Peoples (RCAP). It was the most comprehensive study on our collective relationship in all areas of life, and offered progressive and hopeful suggestions for improvement. Included in RCAP was a stand-alone report on suicide called “Choosing Life.” Reflecting the problems and solutions we have outlined above, it also charted an implementation plan, costs, timelines, etc. Governments with the power to heed that advice have come and gone. And conditions in our communities have worsened.

How can the inertia be explained? Why, today, with all our knowledge of the dynamics of Indigenous suicide (and especially in the supposed era of truth and reconciliation) are there no authentic efforts being undertaken to address the structural causes of suicide?

First, all those suffering communities are simply not worth helping. The undeniable fact is that to really deal with these challenges, significant resources are required. This is true for any of the inter-related issues: child welfare, food security or mouldy schools. But to date, sharing some of the land and resources that make Canada rich (and which comes from the very people attempting suicide en masse) has not been considered. Indeed this form of restitution would require sacrifice, something Canadians have been unwilling to do from the first settlers through to the latest budget.

Second, and related, the systemic changes required to raise the quality of life for communities is contrary to the preferred policy prescriptions of provincial and federal governments. Despite the so-called nation-to-nation relationship, First Nations increasingly resemble municipalities, with few discernible powers or rights. When an emergency arises, instead of acting, the federal and provincial governments debate who has “responsibility.” It seems to us that Canadians would prefer that First Nations disappear altogether.

These are not new conclusions. In his 1969 book The Unjust Society, Harold Cardinal observed that “the Native people of Canada look back on generations of accumulated frustration under conditions which can only be described as colonial, brutal and tyrannical, and look to the future with the gravest of doubts.” Nearly 50 years later, those grave doubts remain.

We are tired of this reality. Tired of Canadian politicians offering only sympathy. Tired of uninformed pundits calling for irresponsible relocation experiments. And tired of pointing to incremental progress when the state of emergency is a fact of life for many Indigenous peoples in contemporary Canada.

Our people have already started the work for our next generation. There must be hope for them, and they must be protected from the brutal and tyrannical consequences of colonization.

Listen to us, to our communities: We know the answer, we are the answer.

http://www.theglobeandmail.com/opinion/if-we-want-to-end-indigenous-suffering-we-must-end-colonization/article29629448/

The truth is there. But reconciliation is deeply complicated (co-authored with Erica Violet Lee)

The final report of the Truth and Reconciliation Commission was released Tuesday, weighing 25 pounds and containing more than two million words. It is the culmination of six years of painful testimony from residential school survivors, a wide-ranging public education campaign by the commissioners, and the hope for beginnings of a substantive conversation on the meaning of reconciliation among Canadians.

But before we discuss reconciling, we need truth.

While the utility of the 94 “Calls to Action” made by the TRC in July 2015 and again today are critical as we look towards the future, it is the historical record of residential schools that is required reading for Canadians to understand the contours of the grotesque campaign. That record is confirmation of colonial crimes against indigenous peoples on this land. It is recognition that 150,000 indigenous children were taken from their homes, and yes, that is genocide.

The physical and sexual abuse, the brainwashing, the experimentation, the massive scale of disease and death defies comprehension. Chairman Murray Sinclair remarked this week that the final report underestimates how many indigenous children were lost to residential schools. We may never know the number.

We would add to the apocalyptic accounting those lives lost to sexual and gender violence, homelessness, substance abuse, suicide, and poverty; all of which remain endemic after the last residential school closed, and all of them undeniable consequences of a system designed to assimilate and erase.

It is understandable, then, that the notion of reconciliation is complicated.

For some, there is a general feeling that the release of the report marks the end of this awful era, and the beginning of another, new friendships and long-awaited harmony. Perhaps even the mythical post-colonial period?

At the least, we can say there has never been a more engaged public on indigenous issues.

Indeed a new government has committed to implementing all the calls to action (presumably meaning the calls under the federal government’s jurisdiction). This was to start with the United Nations’ Declaration on the Rights of Indigenous Peoples but has already been preceded by the establishment of an inquiry into missing and murdered indigenous women and girls. The haste deserves praise.

Yet we have heard such promises before and watched them break. For many, “reconciliation” is uttered skeptically and with the truth in view.

After all, so few have been brought to justice for their crimes, so little land has been returned. Countless families will never realize healing.

When considering some of the challenges that residential schools precipitated, we wonder if the future will see yet another report on another history of violence. Will it be the child welfare system that houses more kids than ever attended residential schools (also in the name of protection)? Or will it be the prison system, which incarcerates indigenous people en masse and keeps them there, often because they are indigenous?

This is the present for many. And it doesn’t feel like reconciliation.

Perhaps reconciliation is best understood then, ironically, as conflict. We will struggle through this. We will struggle to teach about residential schools, debate who teaches it, and pray that we learn. We will continue to struggle with our very identities, addressing assimilation, racism, and trauma to find our way home. We will demand the return of land and jurisdiction over it and Canada will keep refusing.

The Indian Residential Schools Settlement Agreement, the inquiry for missing and murdered indigenous women, the Truth and Reconciliation Commission itself, and every victory in aboriginal rights over the past 150 years has been hard-won.

The struggle goes on. That’s the fundamental truth about reconciliation in Canada.

http://www.theglobeandmail.com/globe-debate/the-truth-is-there-but-reconciliation-is-deeply-complicated/article27759105/

Can Trudeau deliver on his First Nations promises? Liberal governments have talked a good game in the past

The 42nd Canadian election campaign is finally over. It was the 18th for First Nations people in the freedom-to-vote era.

And, this time, First Nation as well as Métis and Inuit people did indeed participate.

There were also more First Nation, Métis and Inuit candidates running for office than ever before and the greatest number — 10 — ever elected. Perhaps we will even see more than one cabinet minister.

By many accounts this election also saw the largest turnout of First Nation, Métis and Inuit voters, so high that some communities ran out of ballots.

Something clearly resonated. That something was, at least in part, Justin Trudeau.

While First Nation, Métis and Inuit issues were peripheral to the 12-week campaign, and nearly non-existent in the national conversation, party leaders and candidates did work to address the issues at the more local level.

Trudeau spoke to the Assembly of First Nations, as well as participated in APTN’s “Virtual Town Hall” broadcast; he even responded in writing to questions from the Ontario Federation of Indian Friendship Centres.

We have some idea of Trudeau’s vision. It is ambitious. If considered seriously, what are the implications of the Liberal Party’s commitments to Indigenous Peoples?

Nation to nation

First, or at least within the first 100 days, Trudeau has committed to an inquiry on missing and murdered indigenous women and girls.

He has also promised to consult in the three months leading up to the inquiry, and to focus on justice, healing and ending violence.

In this, and seemingly everything else related to First Nation, Métis and Inuit issues, Trudeau has routinely stressed a return to nation-to-nation relationships.

While it is not entirely clear what that entails, Trudeau did, in a speech to chiefs on the eve of the campaign in July, open by recognizing the importance of the Two Row Wampum.

This cardinal treaty in the canon of Haudenosaunee (Iroquoian) post-contact diplomacy demands mutual autonomy. As the common reading goes, First Nation signatories paddle their canoe, and settlers paddle theirs. Neither shall steer the other’s vessel.

In practical terms, nation-to-nation should mean the closure of the Department of Aboriginal Affairs and an end to interventionist policies and attitudes.

But Trudeau went further during the campaign when he promised to review all Harper-era legislation on First Nations and repeal those that contravened Section 35 of the Constitution respecting aboriginal and treaty rights.

In his discussion with APTN, Trudeau actually proposed a “complete review” of all laws passed without consultation.

At the least, we should see the end to the previous government’s Indian Act amendments, Transparency Act, Bill C-51 and so on. A review ought to include the Indian Act itself and the unilateral 1867 British North America Act.

Trudeau has also committed to implementing the recommendations of the Truth and Reconciliation Commission. In at least one speech, he mentioned that implementation would start with the UN’s Declaration of the Rights of Indigenous Peoples.

At the heart of the declaration is land restitution, Article 26, which stipulates that “Indigenous Peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.”

Accepting the TRC recommendations while adopting UN declaration would be a package deal sure to improve the relationship.

Informed consent

In a related matter, the issue of veto power over resource development affecting indigenous lands also came up during the campaign.

Trudeau accepted the principle of free, prior and informed consent, stating “governments grant permits, communities grant permission.”

Though consent will require federal legislation to bypass regulating agencies and coerce the provinces, which currently have jurisdiction over natural resources, it seems possible that First Nation, Métis and Inuit peoples might finally have this power restored.

In addition to all of the above, Trudeau has also committed to closing the gap in education, and advancing housing, health, policing, and child welfare issues collaboratively through a renewed Kelowna Accord effort.

He’ll clean up dirty water, fix food security issues in the north, address the root causes of urban homelessness, restore a rigorous environmental assessment process, tackle Métis economic and legal concerns, and keep land conflicts out of the courts. And build the Freedom Road to Shoal Lake #40.

Note of caution

A brief note of caution is probably appropriate here.

Federal Liberal governments do have a record of breaking promises when it comes to Indigenous Peoples.

After the 1967 pro-rights Hawthorne report, Pierre Trudeau committed to a “just” new direction on Indian policy.

But what he delivered was a 1969 white paper aimed at assimilation.

In 1993, the Jean Chretien Liberals drafted a progressive Aboriginal platform for their first election, but once elected completely ignored it and any semblance of Aboriginal rights.

In fact, soon after they implemented a strict funding cap that has resulted in a de facto decrease in resources for communities every year for the past 24.

Despite this history, the First Nation, Métis and Inuit vote this time was hearty. We are told it mattered, and so why not expect the dramatic transformation explicit in Liberal Party commitments?

After all Justin Trudeau has promised real change.

http://www.cbc.ca/news/aboriginal/can-trudeau-deliver-on-first-nations-promises-1.3284491

Lines on the Shore: Stories from the Border of an Island Indian Reserve

On the north shore of Gchi Nme Mnissing, “The Great Sturgeon Island” (and otherwise known as Beausoleil First Nation or Christian Island), is the Big Sand Bay. It’s an arcing black and tan beach flanked by cedar trees and Muskoka chairs. From below the sand is consumed by the clear and bright breaking waves of Georgian Bay. It’s a feast overseen by cottagers, visitors, who through a legal and economic deal with the First Nation and federal government occupy this and many of the Island’s sand beaches during the summer months.

Before the ancestors arrived on the coast another people called it home. To the Huron it was Gahoendoe. They spent their brief time on the shore trying to trade with the Anishinaabeg in the north and building St. Marie II, a Jesuit mission promising shelter from the Nahdoway at the end of the seventeenth-century war. Across the bay to the east those Nahdoway camped on the limestone shelf known as Cedar Ridge, presiding over Huron gloom. Today you can see St. Marie II when arriving at the Island by boat. It’s that pile of rocks beside the school.

The ice comes and goes. For a few years there will be none and then a period of low and cold water that freezes thick enough to walk, snowmobile and eventually drive across. It is a freedom rarely taken for granted. In the old days of the early spring, people used to hop from iceberg to iceberg to work or school. Last winter there were two roads. The first cracked and flooded, the second lasted the duration. Over the years men have set out from one shore but fell short of the other, down through the ice in their Chevy or Ford.

The white stone can be blinding on sunny days. A beacon on the southern peninsula of the Island, the lighthouse stands nearly six stories tall. It is one of the six so-called Imperial Lighthouses built throughout Lake Huron. It was the first constructed, completed in 1857 (the same year the Gradual Civilization of the Indian Tribes of Canada Act was passed). This imperial light guided mid-to-late nineteenth century imperial traders and fisherman up and down the coast, past the Island to somewhere else. Do not crash on these dark shores. During the Great War the army came and stripped the lighthouse of its steel.

On the trip west from Coldwater-Narrows, that first failure of a reserve experiment in Canada, the Catholics and Anglicans who joined the Ojibwe (many of them Catholics and Anglicans as well) granted themselves the privilege of naming. They called the three Islands, which now comprise the reserve, Charity, Faith and Hope. My father’s ashes mingle with the dunes of Faith. On Charity, bodies from elsewhere sometimes wash ashore. There were two corpses last spring. The couple that discovered the second thought it was an odd shaped white boulder until they didn’t.

Aside from occasional ice, there are no roads to and from Gchi Nme Mnissing, just The Boat. There have been many boats over the years: The Quinte, The Upper Canada and The R.A. Hoey. Hoey was an Indian Affairs bureaucrat, an enforcer of the residential in residential schools and champion of selective human breeding. Today it’s the MV Sandy Graham trekking across a dozen times a day. Alexander (Sandy) Graham was a North Carolina democrat and public servant. His namesake is 60 years old now and spends at least a few weeks a year getting patched up in one shipyard or another. But it is the lifeline for women who haul food and children between shores.

After being pushed out of their territory in what is now Wisconsin, a group of Bodawatomi came north. They helped defend what was becoming Canada in the War of 1812 and then searched for a new home. They reached the shores of the Island just before the Ojibwe who travelled from Coldwater. But the pious did not like these ones; too heathen, obstinate, and refusing to convert. And so they were banished to the eastern coast, eating raccoons and seagull eggs when they weren’t starving. Their descendants are keepers of ceremony still.

Just south of the dock, on the mainland side, there used to be a clearing in the bush close to the water. It was known as Toby’s Tavern. My grandfather would occasionally be there with friends, off the reserve and away from the restrictions of the Indian Act. Today it’s surrounded by million-dollar vacation homes that face the bay. Cottagers glimpsing the Island, holidays occasionally interrupted when the long dead pass freely through their concrete and siding. Here, lingering ghosts are as dependable as crashing waves and crumbling beach.

This article draws on stories from the Late Leon King, Gloria and Roseanne King, Larry Copegog, Valerie Monague, Roly Monague, Shelby King-Shawongonabe, Marla Monague and the Scott Family.

 

http://49thshelf.com/Blog/2015/10/02/Hayden-King-Lines-on-the-Shore

 

Three reasons why First Nations voters are suddenly more engaged: New pro-vote push for federal election could represent major shift in First Nations political values

Just a few weeks into the federal election, it’s fair to say this campaign will see a dramatic rise in participation by indigenous voters.

Already there are more than 40 First Nation, Métis or Inuit candidates seeking mainstream party nominations and a handful of ridings where all of the candidates are indigenous.

As well, the main parties are making prominent political promises to First Nations, and there is much loud encouragement by the Assembly of First Nations, the Native Women’s Association, and the Congress of Aboriginal Peoples, among others, to get out the vote.

This represents a paradigm shift.

From the earliest days surrounding the introduction of voting, First Nation reaction has generally oscillated between apathy and outright hostility.

The first real attempt to convince First Nations peoples to vote was led by prime minister John A. Macdonald in 1885 when he spearheaded the Electoral Franchise Act, which applied to Indians in Ontario, Quebec and the Maritimes. (Those in the North and West were excluded as unfit.)

At the time, “civilization” was actually a requirement to vote: First Nations people were not forced to renounce status or treaty rights in the 1885 legislation, but they were obligated to hold property in fee simple and demonstrate that they had “improved” that property.

The legislation was repealed in 1898, as was the Indian vote.

First Nation sovereignty

It took another sixty years before the second attempt at the federal level. In 1960 John Diefenbaker extended the franchise to status Indians, an accompaniment to his Bill of Rights.

And like Macdonald, Diefenbaker had an underlying civilizing impulse, in his case, hoping First Nations peoples would consider themselves individuals within Canada.

For the Conservative leader, the franchise was about equality as much as it was an inducement to eschew the collective rights, land claims and self-government that many were vocally pursuing at the time.

Both of these not-so-subtle efforts at integration were apparent to First Nations and they reacted in kind.

The 1885 legislation was met with fears of imposed Canadian citizenship and the 1960 law sparked protests across the country to protect First Nation sovereignty.

Later, even national chiefs of the Assembly of First Nations, like Georges Erasmus and Ovide Mercredi, questioned the utility of voting.

By 1996, the Royal Commission on Aboriginal Peoples bluntly noted that First Nations people view Canada’s electoral system as “inherently ineffective” and that First Nations are instead “seeking nation-to-nation political relations which can’t be achieved by representation in Canadian political institutions.”

So what changed?

Anyone but Conservative

Throughout Canada’s modern history there have been few government’s more hostile to indigneous concerns than the three led by Stephen Harper.

Nearly every piece of legislation affecting First Nations, from the Financial Transparency Act to matrimonial real property legislation and even the Safe Water Act has been passed unilaterally, without serious consultation.

As well, criminal justice laws have led to rising incarceration rates, environmental policy has eroded treaty rights, funding for everything from political advocacy to healing foundations and homeless shelters has been dramatically cut, the Idle No More movement was ignored, and the response to missing and murdered indigenous women and girls has been essentially to blame indigenous men.

There is a widely held sentiment that First Nations must do what they can to oust Harper.

As the Grand Chief of the Assembly of Manitoba Chiefs, Derek Nepinak, recently said: “We can mitigate the damages by voting for a different government.”

So far in this campaign, First Nations seem ready to join a chorus of previously non-partisan interest groups – veterans, school teachers, postal workers, scientists — lobbying for change.

For the first time in the country’s history, it appears (some) interests may be aligned.

Searching for leadership

There is probably no group in Canada more political than First Nations.

Direct action, legal battles, media activism are all common features of the average First Nation life. And while there are thousands of “unofficial” leaders in communities, a perpetual challenge is advocacy at the federal level.

The Indian Act has constricted band council governments to local affairs. Meanwhile the AFN has been struggling with an ongoing renewal campaign to make the organization representative of grassroots people.

This relative incapacitation, paired with significant outreach by the Liberal, Green and New Democratic parties, makes Canadian politics now seem viable, whether people are seeking alternatives to current political leadership or just a compliment.

Changing political values

Historically, there have been two broad First Nation views on the relationship with Canada.

First, there is the nationalist perspective, which considers First Nations sovereign, with self-determination pre-dating Canada, and rejecting Canadian legal and economic orders as fundamentally violent for truncating the practices of nationhood.

The second, more liberal approach considers a place for First Nations peoples within Canada, a place that would allow them to relate to governments as nations but largely as individuals, with parliamentary and judicial institutions considered appropriate sites of change.

While the nationalist approach has generally dominated First Nations history, and reflects the no-vote sentiment of yore, the new pro-vote push may be indicative of changing political values.

For example, the majority of First Nations people now live in cities and have many reasons to vote that are unrelated to rights and title.

Moreover, the demands of previous nationalist generations: jurisdictional concerns, land restitution, treaty federalism, etc., seem to be absent from the current voting discourse.

Finally, the partisan diversity of those First Nations’ champions-of-the-vote suggests a trending individualistic (as opposed to collective) political outlook.

An odd future?

These three broad explanations are not meant to be exclusive. It may be that shades of each blend into the new pro-vote paradigm. Or, that First Nations are simply, finally, becoming familiar with the idea of voting (it’s only been a few decades, after all).

But until now, First Nations have never neatly fit into the Canadian political spectrum.

If either the Liberals and/or New Democrats do indeed form the next government and honour their campaign promises, there may be all the more incentive to participate in Canadian electoral and party politics.

It could represent, at least in part, the previously unimaginable and odd future that Macdonald and Diefenbaker originally envisioned.

http://www.cbc.ca/news/aboriginal/3-reasons-why-first-nations-voters-are-suddenly-more-engaged-1.3198052

TRC report a good start, but now it’s time for action (co-authored with Vanessa Watts-Powless)

The Truth and Reconciliation Commission’s 382-page summary of its final report includes 94 compelling recommendations. The task now is their acceptance and implementation, and the reorientation of Canadians’ strained attitude toward reconciliation.

We have been here before. As far back as 1907, the Bryce Report chronicled the atrocious conditions at residential schools, and Saturday Night magazine, in turn, reported that “even war seldom shows as large a percentage of fatalities as does the education system we have imposed upon our Indian wards.” Almost a century later, the Royal Commission on Aboriginal Peoples prescribed 440 ways to improve the relationship between indigenous peoples and the rest of Canada, laying out a 20-year plan whose implementation would cost tens of billions of dollars, and resistance to which has likely squandered even more than that sum in court battles alone. To say nothing of the Hawthorn Report (1967), the Penner Report (1983), provincial justice inquiries in Manitoba (2001) and Ontario (2007), and even the United Nations Declaration on Indigenous Peoples (2007).

The formulaic response to these moments of clarity and accompanying opportunity has been tacit acceptance, followed closely by delay and obfuscation, then apathy, and finally the status quo. It is a tradition in this country to ignore progressive solutions to the Canadian problem. This aversion is rooted in a resistance to sacrificing privilege and sharing power.

It is important to preface the argument we are making here with a note about healing – the face of reconciliation that dominates the current conversation. With all our hearts, we, too, know that healing is required. Every day, we see the need for healing in our communities and in our lives. The pain of generations of men and women has been on display for Canadians to see, as well. For the past seven years, indigenous peoples have spoken with clarity, honesty and courage. And in writing this, we do not intend to distract from the affection and support for those survivors and their families that indigenous peoples feel at this moment.

Yet, we must also talk about restitution. Reconciliation requires restoring what is owed to indigenous peoples: the return of land; the re-emergence of our legal and educational systems; the rebuilding of structures that will allow families to reconnect and thrive; answers and action on missing and murdered women and girls; a return to language fluency and vibrant spiritual practices; and the return of children still being taken away from their communities. Some of these are included in the TRC’s report, some are not. All are just, by any measure.

That does not mean Canadians will oblige. Land, for instance, has been among the clearest sources of conflict. Residential schools were one strategy among many to force indigenous peoples from the land. The dispossession continues, as provincial and territorial governments greedily protect their unfounded title. Correspondingly, restoring indigenous title to that land is among the loudest demands by indigenous peoples. Occupying contested land has, historically, been met with force. There seems little room in Canada’s constitutional framework for a division of federal, provincial and indigenous powers. Jurisdictions must be renegotiated.

Current education policy is also an unrestrained disaster. Schools in First Nations communities are shockingly under-resourced, as residential schools were. And in provincial curricula, indigenous peoples are lucky to appear at Thanksgiving, if at all. Changing these conditions requires significant funds to build schools, repair them, and pay teachers fair salaries. More, changing the curriculum in each jurisdiction, effectively rewriting history, is a process that will challenge the very identity of Canada. Stories that need to be told include those of forced removals through policies of aggressive assimilation, and the disenfranchisement of indigenous war veterans.

The list goes on. As the TRC recommends, there are many areas that need to be addressed. Among them is the overhaul of a justice system that sends indigenous men and women to prison en masse. Increased and fair indigenous representation in terms of juries, lawyers, judges and policing can mitigate this. Restorative-justice practices have been implemented in some communities, but these are few and far between.

The child-welfare system, which houses more children today than at the height of the residential school era, is another obvious priority. The transfer of authority to indigenous governments, so that they can develop their own agencies to protect indigenous children, is essential. This should coincide with educational programming, for existing provincial child-welfare agencies, about the ongoing impact that residential schools have on families.

The TRC also highlights the need to revitalize our nearly extinguished languages. Funding for language immersion and retention programs will help to restore what was once forbidden in residential schools.

Each of these disturbing abuses is a direct consequence of the residential school system. And change for each requires significant institutional transformation, financial resources and will.

The sheer scope of the challenge may contribute to paralysis; ongoing racism certainly does. But above all, there will be a resistance to bona fide change because interests will clash. Reconciliation requires the transformation of entrenched power relations, the release of illegally acquired territory, and the acceptance that the long hoped-for assimilation of indigenous people has and will continue to fail.

Reconciliation will not be easy, because the reality that indigenous peoples face is born of violence: the violence of residential schools, the violence of broken treaty promises, the violence that labels them terrorists when they defend their land, the violence that sees indigenous women and girls vanish when walking down the street.

This leads naturally to a deep skepticism of the concept of reconciliation itself. We do not mean to discount a common future. Rather, we want to say that reconciliation is about restitution. Without it, meaningful reconciliation will be incomplete.

http://www.theglobeandmail.com/news/national/trc-report-a-good-start-but-now-its-time-for-action/article24824924/

Who belongs on a reserve? First Nations will decide (Co-authored with Jessica Deer)

n recent months, the Kanien’kehá:ka (Mohawk) community of Kahnawake has re-opened discussion on its controversial 1984 membership law. The renewed debate has been accompanied by provocative developments: Protests outside homes, eviction notices sent to “foreign” residents, accusations of racism from the Minister of Aboriginal Affairs, and a lawsuit challenging the membership law in court.

This fraught terrain has confused and outraged Canadians, partly because the story has lacked context and nuance in the media.

While unique in many ways, Kahnawake is one First Nation among many grappling with these issues. After the failure of the 1969 White Paper on Indian Policy and its assimilative prescription to eliminate Indian status and bands, the federal government has been pursuing a slightly amended policy of devolution: First Nations are asked to assume more administrative control of programs and services, from education and health care to housing and infrastructure, but with inadequate resources.

Corresponding to the devolution process have been revisions to the Indian Act as it relates to Indian status. From the “honorary white man” policy of the 1850s, Canadian legislation has intended to unmake Indians in the legal sense. Much of this strategy has focused on attacking women, removing their status if they marry a non-status Indian, which resulted in the disenrollment of tens of thousands of individuals who rightfully belonged within their nations. In post-Charter Canada, the Indian Act was successfully challenged and amendments in 1985 and 2011 partly ended the discrimination, precipitating a surge in the “official” First Nation population.

While much has been made of the “marry out, get out” provision at Kahnawake, the membership law, as well as many other First Nation membership laws, is more complex. The objective is to separate Indian status from band membership and take control of the latter from the federal government. “Membership” in this sense includes residency qualifications, electoral rules and treaty rights, eligibility guidelines on business operations, and even burial plot designation. In reserve politics, or “reserve nationalism” as Audra Simpson calls it, this might be described as citizenship and even immigration policy. In a general sense, it is about who belongs.

There are two extremes in this conversation. The “exclusive” membership perspective views lineage as the crucial qualification to belonging. Citizens must be descended from indigenous peoples, inculcated in indigenous culture. They exclude those with weak lineage or none at all, especially if taking up land or resources. Of course, communities today have increasing numbers of both groups. About three-dozen of those who share this conservative approach to membership at Kahnawake are responsible for taking the initiative to evict non-indigenous people from the community.

The “inclusive” perspective advocates for a more open community not necessarily delimited by strict ancestral connection but inter-community relationships. It is the far more common practice among indigenous peoples (extending the rafters of the longhouse, the ever-expanding circle, etc.). Non-indigenous people who can make a contribution to the community while reflecting indigenous values should be welcome. In the case of Kahnawake, a handful of these inclusive proponents are appealing to the Quebec Superior Court to protect this view.

In many ways, the debate revolves around claims of authenticity: A contentious notion after 150 years of Indian policies that have cultivated artificial governments and islands of reserved lands, imposed patriarchy and domesticated sovereignty. Indeed, indigenous peoples would be justified in evicting white people from the little land we have left if that were the case. But this is a crude simplification. Despite the opinions of pundits or politicians on the allegedly racist law at Kahnawake (or elsewhere), this is fundamentally about people passionately and earnestly working towards visions of community well-being amid very real, long-standing and external constraints. This is about striving to be Kanien’kehá:ka or Anishinaabe in a place traditionally hostile to that very proposition.

http://www.theglobeandmail.com/globe-debate/who-belongs-first-nations-will-decide/article24553013/

First Nations crisis is about land. We need a new settlement

The Anishinaabeg and Haudenosaunee haven’t always been the best of friends. Still, in hundreds of years of conflict, peace and diplomacy, we figured out how to live and work together on the land. One of the most potent symbols of that relationship is the agreement known as the Dish with One Spoon. This pragmatic arrangement recognized that even as distinct nations, we can share the same territory. But we need to acknowledge our mutual obligations to ensure the dish is always full, “as long as the world stands,” as my relative Misko Ki (Red Earth) once said. Importantly, there are no forks or knives at the table with which we can stab each other, just a spoon that we share.

As settlers began to proliferate in what would become the Great Lakes area, they too were invited to eat from the dish. But over time their collective appetite eroded the principles of mutual autonomy, humility and sustainability. The features of that original relationship were replaced with notions of “surrender” and “extinguishment” – sharp objects that cleaved indigenous peoples away from their territories. Today, these newer concepts are still fundamental components of the treaty architecture in Canada. If there is “one issue” running through this “Rich Country, Poor Nations series that requires resolution, it is the ongoing alienation of indigenous peoples from the land.

At the heart of this story is a continuing clash of perspectives. When the formal confederation-era treaties were created, indigenous nations understood the agreements as providing settlers with some land for farming, grass for animals to graze, timber to build homes, and peace and friendship. Those Dakota and Saulteaux people, among others, would continue on as they had with some help in times of need. But for Canadians these treaties were transactional and extremely profitable: a few dollars per year, some tools, and setting aside tiny plots of reserve land secured the surrender of a country. The enforcement of this latter interpretation has meant widespread impoverishment, breakdown of authentic gender roles, and general social suffering for indigenous peoples.

Despite one hundred and fifty years of protest, this interpretation stubbornly remains the dominant treaty paradigm. While it is often assumed that the courts treat indigenous claimants generously via legal principals such as the duty to consult, that initial presumption of surrender has never been questioned and provincial and federal governments continue to assume exclusive jurisdiction. The recent modern land claim agreements are celebrated for offering restitution yet insist on the extinguishment of title to nine out of ten rivers and forests. More often than not, these new treaties – negotiated by indigenous peoples because there are few other options – end up back in court because of a lack of implementation or the familiar misinterpretation.

There are alternatives. We can imagine an escape from the current treaty approach with a renewed embrace of indigenous political economies. What would the Dish with One Spoon look like today?

Regarding the case of the confederation-era treaties, reserve borders could be blended with provincial or federal Crown lands. In these enlarged areas of indigenous jurisdiction the appropriate Blackfoot, Mushkego (or whichever) nations would “manage” these lands. Where there is overlap in traditional territories, principles of indigenous diplomacy would be invoked to share responsibility. Provincial, territorial and federal authority would not disappear; these governments would contribute to management plans and administration. Though mining, forestry and hunting might take place, land use generally would conform to principles that respect indigenous community desires and the rights of the land, as was originally intended.

In areas where there are no treaties, Haisla or Dene title to land would be recognized outright and jurisdiction honoured. All provincial and territorial plans on lands where title exists would seek approval and be harmonized with pre-established indigenous land and resource priorities. And on all lands already illegally settled – where Canadians live and work today – significant tax revenue would be directed to the appropriate indigenous nation. This proposal would also have implications for provincial and territorial authority generally. In these zones of shared sovereignty all law and policy would require collaboration and hopefully consensus.

There will be resistance to these suggestions. After all, this is a fundamental challenge to accepted notions of the Crown, as well as a provocation to the constitutional division of powers. Industry will abhor the perceived uncertainty and governments would be loath to forfeit any power and revenue. But in this supposed era of reconciliation, surely Canadians can make the necessary institutional and legal changes to accommodate multiple sovereignties, diverse legal orders, and long-delayed justice on the land. The struggles that indigenous peoples face in nearly all areas of life today are rooted in this “legal” theft. Canadians should be critically reflecting how they came to eat from the dish in the first place, and perhaps considering a diet.

http://www.theglobeandmail.com/globe-debate/hayden-king-first-nations-crisis-is-about-land-we-need-a-new-settlement/article22887364/

 

Don’t Call It a Comeback: While indigenous people keep resisting assimiliation, it’s Canada that needs to catch up (Co-authored with Shiri Pasternak)

The response to the Idle No More Movement has generally wavered between the dismissive and the laudatory. In the latter group, thinkers and writers have emerged to say that things are different now, potentially better. We are changing. Among these forecasters are Bob Rae, Bill Gallagher, Ken Coates, Douglas Bland, Lloyd Axworthy and now John Ralston Saul. They are here to warn you/us that there will be no stopping the phoenix-like re-emergence of Anishinaabeg, Haudenosaunee and, yes, Métis peoples (as well as many others).

Saul is among the most progressive of these non-Native (white) men. He is a political philosopher who is deeply convinced, as he has previously argued, that Canada’s founding myth is indigenous, rooted in the Métis civilization—our collective political culture born of anglophone, francophone and indigenous heritage. He has consistently submitted that the denial of this shared indigenous heritage is at the heart of our national ambiguity, discontent and even dysfunction.

His new book, The Comeback, distances Saul even further from this cohort, primarily because of his exclusive focus on Canadian culpability. He demands that Canadians look in the mirror and take responsibility for colonial history and for continuing to elect and fund colonial politicians and bureaucrats, and, finally, he urges Canadians to accept that restitution will be required. Restitution, a new concept for Saul and one he attributes to Mohawk intellectual Taiaiake Alfred, involves for him a general “shift in power and in economic wealth.”

In addition to holding Canadians accountable, Saul does an admirable job of dissecting the “termination” legislation that galvanized the Idle No More movement. For example, on the weakening of rules regarding leasing reserve land contained in omnibus bill C-45, he rightly notes that, “there is always the desire of Canadian authorities to reduce the amount of land held by indigenous people and, failing that, to weaken their authority over their land … This has not changed.” Scorn is then heaped generously on these “authorities”—the Department of Aboriginal Affairs with the help of lawyers in the Department of Justice.

To a very significant degree, Saul gets it. There is much in The Comeback that resonates. But there are shortcomings, too, that emanate from the natural though unstated continuity between Saul’s previous work A Fair Country: Telling Truths About Canada and this new book. The former describes an enlightened birth of Canada while the latter laments the nation’s fall. The obvious prescriptive features of The Comeback—directed at Canadians—is to reverse course and get back to a sort of innate Canadian exceptionalism. Ultimately, this means any transformation in the relationship will be relatively superficial because nothing fundamental about the country’s institutions really needs to change. The implication for indigenous peoples then might simply be a future under a kinder, gentler settler colonialism.

We see this not in Saul’s assessment of the comeback, which we agree is very much a material and ideational reality spanning many generations, but in the shape of the future. Specifically, we see his emphasis on voting in or out unsupportive and delinquent governments, and using the courts to achieve justice as all reinforcing an unthreatening politics of charity: sophisticated and pragmatic, but also relatively benign. We contrast this approach with the work of indigenous intellectuals who have emerged to describe the comeback in more provocative terms—what is increasingly called indigenous resurgence—that call for disengagement from and alternatives to state forms of recognition and reconciliation. These thinkers emphasize Canada as home to multiple sovereignties and jurisdictions of indigenous nations and legal orders, rather than collapsing them into an idyllically common, mythological national identity.

The Limits of Civic Solidarity

One of the surprising elements of The Comeback is the emphasis on Canadian politics. That is, Saul spends many pages chronicling the democratic deficit of recent years: the erosion of “responsible government,” the power held in the executive, the lack of civic action, the increasingly puppet-like governor general and a perceived decline in authentic Canadian political culture. This emphasis seems to point to the underlying goal of the book: building solidarity between indigenous and non-indigenous peoples. Saul believes the former can provide the power and instinct for Canadians to help retrieve legitimate governance and democracy in Canada. Together we can then begin to prioritize indigenous issues at the ballot box.

For example, Saul ponders with great attention the significance of indigenous peoples leading the protests against the omnibus legislation in 2013 introduced by the Conservative government. He asserts that the Idle No More movement showed how indigenous leadership “is demonstrating a clear understanding of parliamentary democracy … Aboriginal leaders understand that you must be willing to go into the streets and stay there if your cause is great.” Never mind that the protests failed and the bill became law; there is inspiration to be taken here. Indigenous peoples put their bodies on the line to challenge the current political status quo and Saul is willing and ready to do his part by pushing Canadians to act on indigenous issues. He pleads sincerely in his final chapter:

What stops us—what stops you—from voting people out of Parliament, out of office, because of their refusal to act on indigenous matters? What stops us—you—from voting people into Parliament, into office, because they have a fair and urgent commitment on indigenous questions at the top of their action plan?

This is a dubious strategy and one that has not fared well in the history of Canadian politics. Significant numbers of Canadians, we believe, are willing to speak up for a serious improvement in the relationship with indigenous peoples in this country. But who will they support: the masked land defenders of Elsipogtog? Or will they choose those groups that fit the all-too-Canadian paradigm of “civil” behaviour and the current, unthreatening economic and social status quo?

What happens, in other words, when the idea of being in solidarity (being “good treaty partners” in Saul’s words) contradicts being “good citizens” of the state? Or, when supporting indigenous struggles pits Canadians against jobs in hard-struck resource towns, against the flow of supply chains that Canada’s national economy depends upon? No, the reality is that indigenous interests are too diverse and, let’s face it, irreconcilable with Canadian interests, for voting solidarity to produce tangible results outside what the majority of non-Native peoples (and governments they elect) are willing to permit.

Perhaps a historical precedent can act as an antidote to this kind of thinking. In 1993, Jean Chrétien, then leader of the federal Liberals, announced the party’s Aboriginal Election Platform as part of the Liberal Red Book of policy. Key indigenous strategists and thinkers were hired to form the team that developed the platform. As a result, it included important commitments, which Chrétien supported. By 1996, Ovide Mercredi was burning the Red Book. Not a single campaign promise had been fulfilled. A lesson had been learned.

Reconsidering the “Legal Winning Streak”

A much more common-sense solution to the problems in the general indigenous-Canada relationship revolves around the courts. Much has been made of what members of the consultancy industry have dubbed the aboriginal “legal winning streak” and Saul is certainly not immune to its seductions. In fact, it is the courts where Saul sees the most promise to reorient our relationship from one of paternalism to equality. He writes that arguments and decisions in courts show “the continuing ability of Aboriginal peoples to shape not just how Canada functions or will function, but how Canada imagines itself.”

Yet even in light of the recent and much-celebrated Tsilhqot’in andKeewatin decisions, no court in Canada has ever recognized the sovereignty of indigenous peoples. In fact, courts have taken careful steps to lay down a framework allowing provinces to infringe on aboriginal title if it is in the interests of the public good, and these two cases are examples of that calculation. So as long as courts privilege the rights of the many at the expense of the few and as long as indigenous legal orders are conditional on the convenience of Canadians, the stubborn refusal to take indigenous jurisdictional claims seriously will persist.

This is what anthropologist Michael Asch, in On Being Here to Stay: Treaties and Aboriginal Rights in Canada, calls the “major impasse” that Canada has created to reconciling the relationship between newcomers and indigenous peoples. This impasse is captured, Asch believes, in the precedent-setting Supreme Court of Canada case R. v. Van Der Peet, where Justice Lamar defines the basic purpose of aboriginal peoples’ constitutional rights to be the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown. Asch asserts that

this logically ought not be the case, if for no other reason than that the political rights of Indigenous peoples already existed at the time that Crown sovereignty was asserted and, therefore, it is the question of how the Crown gained sovereignty that requires reconciliation with the pre-existence of Indigenous societies and not the other way around.

Courts have been unwilling to address this issue. It is certainly true that the case law on aboriginal rights and title has been expanding in recent years, with recognition of indigenous proprietary interests, the special nature of their relationship to the land/underlying title to the land, and their constitutional rights to their treaties and unceded territories. But there is another side to this story not often told. The courts continue to grant provinces underlying title to land and jurisdiction and they continue to unjustifiably view Canadian sovereignty as absolute. They continue, too, to frame the normative nature of our relationship as charitable. Indigenous rights to land are simultaneously seen as inherent, yet treated as delegated from Crown authority, therefore contingent on Canada’s generosity.

The Comeback versus Indigenous Resurgence

Reflecting on these two broad points, we want to emphasize that electoral politics and court “victories” are not strictly unhelpful. They are tools that can potentially lead to some gains. Moreover, they are somewhat subsidiary to Saul’s commitment of changing the narrative and the myths we tell ourselves that underwrites A Fair Countryand The Comeback. However, as prescriptions they also reveal the underlying, unthreatening politics that Saul advocates. After all, he calls his most prescriptive chapter “Easy Steps”! This is the key point on which we depart. The future will not be easy.

The type of change required includes dramatic economic and political shifts. As Dene political philosopher Glen Coulthard writes in Red Skin, White Masks: Rejecting the Colonial Politics of Recognition, without “a massive transformation in the political economy of contemporary settler-colonialism, any efforts to rebuild our nations will remain parasitic on capitalism, and thus on the perpetual exploitation of our lands and labor,” clashing fundamentally with indigenous values of reciprocity with the land. And politically, in Mohawk scholar Audra Simpson’s new book Mohawk Interruptus: Political Life Across the Borders of Settler States, she motions toward a future where indigenous peoples are not forced to struggle against demands that they be Canadian (or American) citizens, give up land and be absorbed into the logic of property; in sum, that they are not forced to stop being politically indigenous.

These recent works by Coulthard and Simpson reject the Canadian politics of reconciliation and instead posit a politics of refusal. This is simply the culmination of generations of attempts to make change in collaboration with a liberal Canada. While it may seem a segregationist turn (a justifiable position, if that were the case), it does not have to be. Invoking the Anishnaabe prophecy, Leanne Simpson describes the deepening of our collective resurgence. In Lighting the Eighth Fire: The Liberation, Resurgence, and Protection of Indigenous Nations, she writes about the Oshkimaadziig, a new people who reject colonialism, assimilation and destruction of the land, and who work together toward a post-material world. This can happen when “settler society [chooses] to change their ways, to decolonize their relationships with the land and Indigenous Nations, and to join with us in building a sustainable future based on mutual recognition, justice, and respect.”

In some ways this is a similar narrative to Saul’s, a mythology that guides us into the future. But there is a fundamental contrast. Where Saul views Canadian institutions and political culture as naturally good, we assert that they are implicated in creating and nurturing settler colonialism. Saul states early in the book, that, “either you believe in the legitimacy of the structure of the state or you don’t. If you don’t, then that leaves only power, which is a form of absolutism.” We do not believe in the legitimacy of the structures of the state. But neither do we believe in absolutism.

There is another way of looking at things, or another way of changing the narrative. Non-indigenous Canadians must recognize that any restoration of the relationship with indigenous nations will first require a “Canadian comeback,” a reorientation of the political economy away from the mythologies of liberal capitalism toward a more sustainable and just economic and social system. At a minimum this means committing to a redistribution of land, resources and power. Ideally, though, it means collective transformation.

If indigenous peoples are indeed leading this comeback, it is not to fill an ethical and civic gap in an increasingly undemocratic Canada. It is to transcend Canada.

http://reviewcanada.ca/magazine/2015/01/dont-call-it-a-comeback/

Visionary patriot or hateful embarrassment? The John A. Macdonald debate

Amid the current celebration and accompanying debate of John A. Macdonald’s 200th birthday, a realization emerged about the very nature of Canada: this place doesn’t really exist. Certainly the idea of the country pervades the imaginations of millions of Canadians and there are internationally recognized borders, currency, and so on. But it is increasingly difficult to accept that Canada possesses a cohesive and honest narrative of itself. Can a nation persist in the present without a shared understanding of its past?

The debates about John A. Macdonald’s role in Canadian history are polarizing. The boosters proclaim the first Prime Minister as father of confederation, framer of Canada’s original constitution, founder of the RCMP, and visionary of a country from sea-to-sea. The detractors see him as a villain, starving Nêhiyawak and Dakota in order to take their land, hanging Louis Riel for asserting Métis Nationhood (charged under the British Treason Act), launching residential schools as the solution to the stubborn Indian Problem, promoting a mostly Whites-only Canada.

Yet even this so-called revisionist reading is rationalized. Macdonald was merely a “product of his time” they say. Alternatively the polite Canadian refrain “nobody is perfect” attempts to retrieve him, as if recognizing his faults somehow sanitizes the nationalist urge to toast a ridiculous, arbitrary birthday of a malevolent, racist thief. Strong language, I know. But in his desire to build Canada the man attempted to “clear the plains” (to use historian James Daschuk’s phrase). So what do you expect?

Still the debate goes on and Macdonald is ever the durable figure. I think part of the apparently necessary festivity pivots on the inseparable relationship between the representation of the first prime Minster and the narrative Canadians tell themselves about their origins generally. The accepted story begins with the ancient colonization of Canada, followed by some very bad things, disease and death, etc. But now we enjoy this beautiful, prosperous, and diverse nation, so it was all worth it.

Lumbee legal scholar Robert A. Williams might describe this as a “discourse of conquest” – a tale designed and promulgated to support the rightness of colonization and in the service of human progress. We see it applied to Christopher Columbus, French Jesuits and explorers, American pilgrims, even somewhat playfully with cowboys and Indians. Acutely we see it anew with Macdonald. Implicitly the discourse is about victory of the civilized over the savage and transplanting the legal norms and values of one society over others because it is simply natural.

All of this sanctions the preservation and celebration of the so-called Founding Father despite his horrific deeds. Genuinely questioning Macdonald’s actions might threaten other deeply committed to truths about Canada, like the nature of “discovery”, exploration, treaty-making, land tenure, multiculturalism and justice. Sincerely challenging Macdonald’s legacy might open the door to fundamentally re-examining any shared notion of Canadian progress, Canadian values, and Canadian institutions.

While many are unwilling to cross that uncomfortable threshold, Indigenous writers and activists are forcing the issue, defending their humanity and challenging Macdonald’s. Indeed an irony in the resistance to this discourse of conquest is that some of the descendants of the very people the father of Confederation tried to starve out of the way are now unravelling foundational Canadian narratives, and with it, unravelling any collective sense of belonging.

Or more accurately, they are exposing the truth about Canada: it is a myth.

http://www.theglobeandmail.com/globe-debate/sir-john/article22362438/