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.


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.

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.

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.

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.

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.

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.

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.

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.


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.

Land ruling’s message to First Nations: You have no place in Confederation

The Numbered Treaties have always been contentious. First Nations view them as sharing agreements, while the federal and provincial governments as land surrenders. Amid a general refusal to earnestly discuss this gulf, the disputes end up in the courts, where there is an increasing perception of a First Nation winning streak. The Supreme Court’s Tsilqot’in decision certainly reinforced that view. But if Tsilqot’in is a “game-changer” in the relationship between provinces, industry and First Nations in non-treaty areas, last week’s Grassy Narrows decision on areas where treaties do exist affirms that the rules are still effectively the same.

There are two features of the decision that underwrite this belief. First, the court has recognized provincial government power to violate treaties. In Grassy Narrows v. Ontario, the Supreme Court suggested that since the province has jurisdiction over lands and resources, “owning the land” as the court said, they should have ultimate authority. So while First Nations have traditionally understood treaties as nation-to-nation and viewed the provinces as junior partners in the relationship, the Supreme Court sees that arrangement inverted and treaty First Nations as subordinate.

The only check in the exercise of provincial power in treaty territory is “the burden” of obligations owed to First Nation. These are three: consultation on potential treaty infringements; accommodation in the case of adverse consequences arising from infringement; and a fiduciary duty, which is the courts way of saying the province should minimize harm to First Nations. In this ruling the court does not comment on Ontario’s record and relies on a past decision to guide the province in alleviating its burden. The result is effectively the status quo ante, which has bordered on apocalyptic.

Known as Asubpeechoseewagong to the Anishinaabe, the community has dealt with residential school and Indian Act trauma typical among Indigenous peoples in Canada. But they have also had their territory flooded by hydro-electric dams, been forced to re-locate their community, been nearly poisoned out of existence by mercury contamination from a pulp and paper mill, and now watch as the source of their food, medicine and a viable economy is hauled away in logging trucks. Instead of addressing this made-in-Ontario tragedy, the province has continued to view its right to issue timber licenses as greater than the Anishinaabeg right to feed themselves.

The additional problematic feature of the Supreme Court’s decision is the shockingly one-sided understanding of history. In a very terse ruling there are two glaring omissions. In its understanding of Treaty #3, the court decided to rely on the text version as well as subsequent federal and provincial legislation. It neglected to consider the perspectives of the Anishinaabeg, including the oral version or the Paypom treaty (Grassy Narrow’s record of Treaty #3). Given the voluminous academic literature on the misleading nature of the written English versions of the Numbered Treaties, evacuating the understanding of the Anishinaabeg from interpretations of the treaty is simply unfair.

Unfortunately this is a theme in the decision. Reflecting on the history of land use in Ontario the court claimed that, “Ontario has exercised the power to take up lands for a period of over 100 years without any objection by the Ojibway.” Yet the history of the relationship between Ontario and the Anishinaabeg (as well as most other First Nations in the province) has been a history of conflict. Physical confrontation, court cases and protests are all endemic features of provincial land and resource management. The long list of Anishinaabe people jailed in Ontario because of these conflicts land is crystal clear evidence of their objections.

So while the case does implore provinces to consult, accommodate and honour treaties, the decision has a dark undertone: First Nations have no place in Confederation. If the province can infringe on the very treaties that led to its creation and which underwrite the existence of the country, there leaves little room for the so-called third order of government that many believe should be embodied by First Nations. Moreover, the courts have embraced a view of history where First Nations simply do not exist except as objects, or rather, burdens who must be managed by one level of government or another.

It is a disappointing decision with a number of implications. For provinces governed by the Numbered Treaties, the ruling means business as usual: consult, infringe, accommodate. For First Nations generally and especially those who do not have a treaty, the Grassy Narrows decision reinforces the Supreme Court’s unstated position in Tsilhqot’in that there is more power to be leveraged where treaties do not exist. In the eyes of the Court, treaties and the accompanying extinguishment of title are a dead-end for First Nations. Finally, for Grassy Narrows, it means that their very long pursuit of justice goes on.

After Atleo, does the Assembly of First Nations serve any purpose?

The resignation on Friday of Shawn A-in-chut Atleo as Assembly of First Nations national chief marks a shift in indigenous politics in Canada. It is the manifestation of whatever Idle No More has become and a growing and sustained assertiveness – in a long history of resistance – of Dene, Lakota and Mi’qmaq peoples, among others. While some will lament this reality and raise concerns about the vacuum left in the wake of Mr. Atleo’s resignation, there are also reasons to greet the development with something akin to subdued hope for fundamental change.

First, the resignation seriously limits any moral authority the federal government might have assumed to push through the much-loathed Bill C-33: The First Nations Control of First Nations Education Act. With the Minister of Aboriginal Affairs’ aggressive posturing (essentially calling those who oppose the bill terrorists) paired with dissent from First Nations leaders representing a majority of on-reserve communities and debate from opposition parties, Mr. Atleo was the only remaining source of legitimacy.

When Bernard Valcourt called on the critics to “follow Shawn Atleo’s lead” he put the former leader in an unsustainable position with few choices given the proliferating awareness of the problematic features of the bill. Since there has already been revisions from the original First Nation Education Act, it will likely become law. But it seems clear that the unilateralism and paternalism characterizing the legislation – and federal Indian policy generally – will no longer be accepted.

Second, those who claim Idle No More quietly disappeared haven’t been paying attention. More than challenging Canadians, the movement was also about forcing First Nation leadership to answer to communities. And ever since the Jan. 11, 2013 meeting in Ottawa between Mr. Atleo and the Prime Minster – as protesters surrounded the building – the now-former national chief was considered by many in the Idle No More movement to be a sell-out. Scrutiny and criticism has been sustained over the past year and his resignation was the inevitable conclusion a perceived betrayal.

The fact that Mr. Atleo is the first national chief to resign from the AFN in the organization’s history reflects the growing power of community members. Credit to him is owed for responding. And while the politics of whatever Idle No More has become are divisive, as all politics among all people necessarily are, it does seem clear that the type being practiced independent of institutional arrangements is increasingly effective. Any organization claiming to represent indigenous peoples should expect skepticism, and more importantly, to be held accountable.

Third, and related, the AFN will be forced to reflect on its purpose. Following Mr. Atleo’s departure, the organization’s executive will take over until the broader chiefs-in-assembly decide what to do. They will likely appoint an interim leader this week, schedule an election and possibly re-instate the senate-like Confederacy of Nations to provide oversight of the executive. Amid all of this chiefs will re-visit the neglected campaign to renew the AFN. It will be the fifth attempt to have the discussion in the organization’s 30-year existence.

Past recommendations have remained static. There was the suggestion to allow individuals to vote in AFN elections, as opposed to strictly chiefs. There has been the call to reject federal funds, which many feel allows undue influence on the organization. Finally, some want to disband the pan-First Nation AFN all together in favour of coalescing around national organizations (Anishinaabe, Mushkego, Kanien’kehá:ka, etc), which would provide more genuine representation. Whichever direction potential renewal takes, unless there is serious movement, the AFN will continue its slide into irrelevance.

Underscoring all of this is the nature of band governance. Each of these recommendations requires the will of constituent chiefs. There is little indication they are committed, either struggling to create change in their own under-resourced and over-stretched local governments, or in contrast, accepting and protecting the limited power delegated by the Indian Act. But people are recognizing the need more authentic governance models and more legitimate leaders. Chiefs and councils, treaty and regional organizations would be wise to absorb the lessons of Mr. Atleo’s resignation.

Many will see these developments as the triumph of confrontation over conciliation. They won’t be wrong. But it is offensive to excuse the sentiment as belonging to “angry Indians” as if deference should be the common sense posture in the face of a continuing history of conflict. Instead, from the Idle No More movement through to the decline and perhaps disappearance of the AFN, and the ongoing imposition of paternalistic legislation, there is a refusal to accept this situation at all levels. The new politics of refusal will seek nothing less than wholesale transformation.


Why is Ottawa consigning First Nations to inferior education?

It has been one year since the emergence of Idle No More, the most recent articulation of the oldest activism in North America, and very little has changed. The relationship between indigenous peoples and the federal government is worse today than it was in December, 2012, a time when leaders starved themselves for some of the things Canadians take for granted. And the apathy of those Canadians is still profound, unmoved by tens of thousands of protesters in streets and malls. An example of this dysfunctional relationship is manifest in First Nations education policy.

On the first anniversary of the so-called “Round Dance Revolution,” Anishinaabe and Cayuga peoples, among others, were once again on the steps of Parliament. This time frustrated and angry with the federal government’s proposed First Nations Education Act (FNEA), legislation that would amend the Indian Act’s sections on community education, encouraging the creation of regional First Nations school boards and potentially transferring control of education to provincial jurisdictions. The crux of the debate is about power.

According to government literature, the proposed act allows “First Nation control over First Nation education” and “respects treaty rights” and “provides the opportunity to structure the schools in a way that respects community and cultural concerns” – all wonderful prescriptions … if they were actually in the proposed act. Instead, the legislation liquidates the limited control over primary education communities do have and re-installs the minister of Aboriginal Affairs as school superintendent.

With the proposed act, the minister: decides if schools are meeting imposed standards; can take over administration of schools that aren’t (leading to the inevitable rise of the third-party education manager); determines qualifications for school staff and administrators; approves budgets; and, finally, transports us back to 1846 by setting student disciplinary policy. A man oblivious to irony, the Minster of Aboriginal Affairs, Bernard Valcourt, has called this proposal both “transformational” and “revolutionary.”

But Mr. Valcourt’s most oft-quoted talking point during the rollout of the proposed act has been: “I don’t believe in throwing federal funds at the problem.” This is a virtual guarantee that the chronic underfunding of community education will persist, ensuring the proposed act’s attainment standards won’t be met. First Nations teachers and “problem”-students will be set up for failure.

The philosophy and content of the proposed act is the first issue. The other is the aforementioned persistent apathy of Canadians. With a few exceptions, the public response to FNEA has been positive and the minister’s talking points about resources repeated. The Globe and Mail’s editorial boardendorsed the FNEA repeating, “the solution is not to just throw more money at the problem” and earlier this week another Globe article said National Chief Shawn Atleo faced the choice of supporting the act or risking “consigning another generation of First Nations children to an inadequate education.”

The implications of these sentiments are twofold. First, Dakota and Innu peoples are not worth it. If Canadian schoolchildren in any region of the country didn’t have clean water to drink at school the unequivocal solution would be to fix the problem – with money. Not so for native kids. Second, First Nations’ opinions on the act don’t really matter. In other words, even unanimous opposition to the proposed act from actual indigenous people cannot compel reconsidering.

Where does that leave us? I recently heard Jessica Danforth, executive director of the Native Youth Sexual Health Network, talk about the responsibilities that we as indigenous peoples have for ensuring that the rights of children are maintained. She made it clear that there isn’t a program or service offered by the federal government that can restore that responsibility. We are the program, she said. It reminded me of the National Indian Brotherhood’s 1972 “Indian Control of Indian Education,” a policy that placed obligations on children and parents for their own education.

All of this is obvious. But it is an important reminder for indigenous peoples in a Canada that is flooded with forms of racism and paternalism that quality education won’t be achieved through appeals to Canadian governments (whatever the treaty right). Merely cost-effective, “reform” further distances First Nations’ control of education from First Nations peoples. Consider that in opposition to FNEA, leaders are forced to defend the current system, which we know isn’t effective either. Are the only options bad or worse?

Instead, the escape from this inertia might require communities to disengage with the system altogether. This would require more will than currently exists from community leadership, a steep commitment from educators and administrators, and even more sacrifice from students. But it might allow communities to be pro-active, to teach and learn in Anishinaabemowin or Kanien’kéha, to cultivate land-based education, and to actually live autonomously. Perhaps this is the type of activism we should be considering.

When the UN probes Canada’s First Nations tragedy, don’t expect results

After months of failed attempts seeking permission to enter Canada and investigate the relationship between Indigenous peoples and Canadians, James Anaya, Special Rapporteur to the United Nations on Indigenous peoples, has arrived. He was greeted earlier this week by more than 50 protests, rallies and round dances across the country (under the banner of Idle No More), most proclaiming treaty rights or rights to land and resources.

As he travels the country over the next week, Mr. Anaya will hear a lot about violations of these rights in Canadian law but also international law, specifically the United Nation’s Declaration on the Rights of Indigenous Peoples (UNDRIP). It’s unclear if any of it will matter.

There is no doubt that the 500-year long struggle for indigenous rights in international law has been hard-fought. Foundational laws like The Doctrine of Discovery and concepts of Terra Nullius declared indigenous peoples non-human and permitted the “legal” theft of entire continents. It wasn’t until 1957, with the United Nation’s Indigenous and Tribal Populations Convention, that indigenous peoples were able to challenge their imposed inferiority. Since then, negotiations with states on the scope and nature of indigenous rights has produced a number of legal instruments, most importantly, the aforementioned Declaration in 2007.

As the preamble states, the Declaration represents a “standard of achievement to be pursued in a spirit of partnership and mutual respect” between states and indigenous peoples. Over forty-six articles, the document espouses rights to define membership and identity, rights to have previous poor treatment redressed and the right to revitalize their traditions and cultures. Rights to participate in both domestic governments that make decisions that affect indigenous peoples and their own governance systems, the right to self-determination. Of course, there is also the right to free, prior and informed consent on all legislation or development plans affecting indigenous peoples.

Yet there are also problems with Declaration. The most significant is the last Article, included in eleventh-hour negotiations as a bone for states. Article 46 states that “Nothing in this Declaration may be interpreted as…encouraging any action, which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.” Unfortunately “territorial integrity” and “political unity” can be interpreted unilaterally by those states. When Australian officials endorsed the UNDRIP they noted, “our concerns with free, prior and informed consent will be interpreted in accordance with Article 46.” This is effectively a backdoor out of the Declaration.

Moreover, the UNDRIP requires only voluntary implementation by states, which ultimately reduces the relationship to status quo ante – indigenous peoples struggling to convince Canada to recognize rights. In this sense, the tools of international law fall within the scope of what Glen Coulthard calls “the politics of recognition,” a form of negotiation that entrenches and reinforces state authority over indigenous peoples by requiring the latter seek validation and permitting the former to offer modification of any potential rights. When confronted with a country adverse to indigenous rights, this is a big problem.

Canada is indeed adverse. Despite the malleability of the Declaration, officials from this country first lobbied hard against it (leading the United States, New Zealand and Australia along). Then, when finding itself the very last hold-out to endorsement, eventually acquiescing but with stipulations: former minister John Duncan emphasized the Declaration as “aspirational” and “non-binding” and that the Articles were already “consistent with this government’s approach”. When Mr. Anaya was invited by the Union of B.C. Indian Chiefs to investigate violations of the Declaration in Canada, the government refused to respond to his requests for eight months.

So, will any of Mr. Anaya’s work in Canada actually lead to change? Given that the deference the Declaration offers states doesn’t go far enough for Canada or that minimum standards of internationally protected rights beyond those established in domestic law (and then barely those) have yet to even be considered, it is difficult to imagine how Mr. Anaya might help. Certainly communities will express frustration and demonstrate unfairness. Mr. Anaya will then write a report to be used by educators and activists to shame Canada. But they’ll be dealing with a government impervious to shame (consider the unchanged legislative agenda post-Idle No More).

Thomas Berger called the treatment of indigenous peoples under international law a “long and terrible shadow.” When that shadow started to recede with the endorsement of the Declaration, Cree legal scholar Sharon Venne proclaimed indigenous peoples were finally “subjects as opposed to objects” of international law. I agree with both sentiments. But International law or Special Rapporteurs have yet to stop the alienation of indigenous peoples from the land and the resulting socio-economic challenges in Canada. Until there is a government willing to seriously consider the Declaration, to embrace “the spirit of partnership and mutual respect” those tools will continue to fail.



We natives are deeply divided. There’s nothing wrong with that

I often find myself surrounded by Mohawks. I’ve worked in Six Nations territory for the balance of my career and many good friends are Haudenosaunee. In fact, despite being Anishinaabe I often find myself identifying with the two-row wampum or Great Law of Peace.

But there are also things I just don’t get about those Mohawks (and Cayugas, Oneidas, etc.). They like to claim Anishinaabe land despite overwhelming evidence that it’s ours; they make political appeals to peace, power and righteousness, us to truth, humility and love; and curiously, when they round dance, they do it in the opposite direction!

The point here is that while we share a lot of important traits, there is also much that differentiates us. This fact, or the fact that there are 60-odd unique indigenous nations in Canada (scattered across 600 communities) is lost on Canadian punditry, media and most of the public generally. Recent attempts to interpret Idle No More movement has resulted in conclusions of sudden divisions, fracturing and “chiefs losing control.” But the differences of opinion among people in the reality is that these cleavages have always existed and some are natural.

Outside of the national political and cultural differences, one of the most noticeable rifts within the Idle No More movement exists between those who see the band council as part of the problem and those who see it as a solution, a debate stretching back to the late-1800s. Many of the former group view band councils as representative of the Indian Act and a system that prevents any real power to affect change (largely due to restrictions in the Act and policy direction required by funding arrangements). Ultimately, it’s a system that forces bands to be accountable to the federal government, not community members.

Then there are supporters of the band council, who feel chiefs are best suited to lead the transition away from the Indian Act. This is a position taken by band councils that comprise the Anishinaabek Nation in Ontario or the Federation of Saskatchewan Indian Nations. Indeed, these are often good people working towards the resurrection of more authentic governments or the restoration of treaty relationships, but through a less-than-perfect framework.

As for the aforementioned treaties, they are the source of yet another division: communities with a treaty versus those without. The latter are distinct from much of the movement and advocate a better process to create treaties or some mechanism to share the land in the absence of treaties (this latter perspective is a reflection of the growing disapproval of modern treaties). Both non-treaty perspectives advocate jurisdiction over unsurrendered lands.

Finally, there are those who have less connection to the band council, the Indian Act or a treaty. These are Métis and Inuit peoples, but also Dene, Salish and Maliseet peoples in cities and suburbs. Their concerns range from obtaining Aboriginal rights off the reserve, to the protection for ecosystems, an alleviation of poverty, a national inquiry on missing and murdered indigenous women, adequate access to education, and on, and on (joining them in the streets are non-Native Canadians expressing solidarity for some or all of the above).

The conclusion of this terse overview of the diverse interests within the movement illustrates that there cannot be a parsimonious message except that federal policies are failing Indigenous peoples. One of the primary reasons for that failure is the continued belief that we’re all the same, which is manifest in one size fits all policy prescriptions. This is a narrative that also leads to misconceptions about factionalism. But as my Mohawk friend and colleague Professor Rick Monture says, “its strange to call differences of opinion ‘factionalism’, we just call it democracy.” It’s an important point. While we all may dance to a similar beat, our footwork can take us in different directions. And there is nothing wrong with that.

Indigenous cultures rivalled those of many other civilizations

Thomas Jefferson once remarked that those who don’t read newspapers are better informed than those who do, even as the former may know nothing, the latter only know falsehood and error. This brings to mind Margaret Wente’s recent column about Olympic official Dick Pound, who said, “400 years ago, Canada was a land of savages.” Ms. Wente’s Saturday column has likely set back the first nations’ campaign for an accurate representation of native peoples in the mainstream media by 10 years.

In fact, a brief survey of the original peoples of this continent illustrates an array of accomplishments that rival civilizations around the globe, including those in Western Europe. Yet today, in North America, the ancestors of those from both continents live side by side, separated by a canyon of misunderstanding. To gain insight, we need only turn to indigenous oral traditions, wampum belts, birchbark scrolls and Tsalagi and Aztec texts. In addition, scholars of all stripes from all corners of the globe have contributed to a greater knowledge of indigenous cultures.

Perhaps most impressive among their findings is that indigenous peoples were adept farmers, originally cultivating and harvesting two-thirds of the foodstuffs the world consumes today. These include the tomato, peanut, potato, chili peppers and corn. In fact, at the time of contact, and long before Gregor Mendel’s experiments with pea plants, the Huron in Ontario had genetically engineered 17 different varieties of corn. Not quite the Stone Age hunter-gatherers of Ms. Wente’s column.

But the achievements don’t end there. And because Ms. Wente uses European-inspired standards of success when measuring first nations “savagery,” a comparison is in order. At a time when the Anishinabek had societal codes forbidding incest, the crowned heads of France and England were as inbred as poodles. While Christians were burning “heretics” at the stake for suggesting the Earth wasn’t the centre of the universe, the Mayans were charting the movement of the stars, creating a calendar within seconds of modern-day atomic clocks. The Wet’suwet’en practised a matriarchal society, while on the other side of the Atlantic, women were the property of men.

In addition, and contrary to Ms. Wente’s assertion, the Haudenosaunee did influence the U.S. Constitution. American “founding fathers,” including Benjamin Franklin and Jefferson, explicitly recorded the first nation contribution. John Rutledge even articulated the structure of the Haudenosaunee Confederacy and their “Great Law of Peace” to the drafting committee. (He spoke of a complex federalism whose leaders included executive, legislative and judicial branches – the latter of which were generally a group of elder women). The Haudenosaunee actually practise a 900-year-old democracy and the longest lasting peace between nations in recorded history.

Yet another disturbing aspect of Ms. Wente’s column was the dismissal of traditional ecological knowledge – this is the sum knowledge of a given first nation or Inuit community that has been accumulated and amended for thousands of years. Dismissing it reduces us to conclude, for instance, that the Inuit have survived in the world’s harshest climate by sheer luck. Of course, this is nonsensical. Sophisticated knowledge of ice flows, animal migrations, wind patterns and temperature fluctuations ensured their success in the past and educates scientists, the military and resource companies in the present.

In fact, such traditional ecological knowledge also significantly contributes to Western medicine: essiac is a cancer treatment, evanta cures leprosy, foxglove aids heart care, kava kava reduces stress, and quinine treats malaria. All of the above are indigenous inventions. Not only can such ecological knowledge save lives, it may also help save the world. First nations peoples have lived sustainably in North America for tens of thousands of years, respecting all life, however small, putting an emphasis on reciprocity and understanding that their relationship with ecosystems is one of life and death. At a time when first nations peoples can teach us so much, Ms. Wente would have us ignore them.

Indigenous cultures were and are diverse and vibrant.

They lived in cities larger than those in contemporary Europe, had greater populations, taller buildings, sophisticated governance structures, varied art forms, tested scientific knowledge and on, and on. What is truly savage is the perpetuation of a false representation of first nations, Métis and Inuit peoples, particularly when they’ve worked so hard to overcome racism and stereotypes.

But perhaps Jefferson was right all along, we shouldn’t expect much from newspapers anyway.

When will there be real justice for First Nations people?

When speaking on the phone with friends who live on-reserve, it’s often amusing to begin the conversation with the customary caution that the line is tapped. In recent days though – having learned that Mohawk activist Shawn Brant, along with his friends and family members, had had their conversations recorded by the OPP without a court order – this amusement has turned to dread. And the dismal reality that is the relationship between First Nations people and the justice system has been illuminated as well.

In this particular case, the OPP and Commissioner Julian Fantino, sought to end a blockade of Highway 401 during last summer’s “National Day of Action” in late-night telephone negotiations with Mr. Brant. Fair enough. But it’s unclear why a wiretap was necessary. It certainly didn’t help bring the action to a close as Mr. Brant endured into the morning despite Mr. Fantino’s threats of “grave consequences.”

For First Nations people, injustice is nothing new. This example is only the latest in a disastrous history whereby the Canadian legal apparatus has been used or abused to persecute First Nation, Métis and Inuit peoples. For that reason, First Nations people represent a majority in our prisons (despite being a minority of the population). They are also more likely to be charged with a crime, sentenced for longer periods, and denied parole more often. Indigenous women are 28 times more likely to be sent to prison than non-indigenous women. Yet, when crimes are committed against them, rarely are they investigated or prosecuted. How else can we explain the hundreds of unsolved cases of missing or murdered First Nations women?

If there is such a thing as a two-tiered justice system, First Nations, Métis and Inuit peoples are on the bottom tier. It was only a few weeks ago that the Chief and Council of Kitchenuhmaykoosib Inninuwug First Nation were released from prison. They had been sentenced to six-month terms for refusing to allow mining on their territory, but an Ontario Court of Appeal reduced their six-month sentences to time served, saying imprisoning the protesters only magnified the “estrangement of aboriginal peoples from the Canadian justice system.” On the other side of the country, a commission of inquiry is investigating the death of Frank Paul. He was a heavily intoxicated aboriginal man left by Vancouver police in an alley where he froze to death in the middle of winter. Perhaps the inquiry should recall the findings of the Aboriginal Justice Inquiry of Manitoba of 1991, which determined that the legal system has institutionalized the oppression of First Nations, Métis and Inuit peoples.

Of course, Canadian governments pay little attention to findings such as these. The Hawthorne Report in the late 1960s indicated that the past 100 years of Indian policies had done more harm than good, yet the government maintained course. The Royal Commission on Aboriginal Peoples in the mid-1990s described challenges within the justice system and prescribed apt solutions; the government completely ignored them.

The Ipperwash Inquiry recommendations, released last spring, noted that policing confrontations with First Nations peoples must be handled with fairness and understanding, yet, the Commissioner of the OPP threatens Shawn Brant.

Canadians, First Nations or otherwise, should be concerned. The emergency wiretap power has recently been found by judges in British Columbia and Ontario to violate the Charter of Rights. Such “emergency” phone taps, which don’t need court approval, are only permissible in “in circumstances where there is a likelihood that an unlawful act will be committed and a likelihood that an unlawful act will cause serious harm to a person or to property,” according the Ontario judge. In the Brant case, where such an emergency wiretap was used, not a single person was hurt, nor was there serious potential. There are also reports the OPP posed as the media to get close to Mr. Brant, a tactic that undermines freedom of the press and only serves to enhance suspicion and distrust.

Most readers will likely react to the police antics with apathy. Natives are terrorists anyway and probably deserved it, as public sentiment generally goes. But at the least, this myth of special treatment for First Nations people under the law should be dispelled. For them, in the Canadian legal system, justice is relative. Indeed, the next time I call friends on-reserve, I’ll be wondering who else is listening.

The Globe and Mail (archived)