by Anthony J Hall

Veterans Today

 

From the Royal Proclamation of 1763, to the American Declaration of Independence, to the Indian Act, to Dan George and Canada’s Centennial Year, to the White Paper of 1969, to Section 35 and Canada’s constitutional Recognition and Affirmation of Aboriginal and Treaty Rights, to Idle No More, to the Case of Kwitsel Tatel: Explorations in the Contextualization of History

Dan George as an Icon of Aboriginal Resistance. Dan George as Law Giver.

 

 

It is Boxing Day, 2012, as I begin this essay introducing Dan George’s speech at the Vancouver Coliseum on July 1st, 1967, the day billed as the main birthday celebration of Canada’s Centennial Year. By highlighting a First Nations perspective on law and legitimacy I seek to draw a contrast with the jurisprudence of the Supreme Court of Canada as articulated, for instance, in its rulings on the Sparrow and Van der Peet cases.

Dan George’s words have particular poignancy in this context because he was the head of the family that adopted Kwitsel Tatel after she was orphaned at the age of thirteen. I have been publishing in Veteran’s Today a running report on the case of Kwitsel Tatel, a proceeding that resumes in the Law Courts of Chilliwack British Columbia on January 14. Many of the major arguments being brought forward in this case of Kwitsel Tatel, which began in 2004, add background and depth to the major contentions of the Idle No More movement.

To this day Kwitsel Tatel, whose Christian name is Patricia Kelly, still refers to Dan George as “grandpa.” She often speaks, for instance, of her grandpa’s all-night guitar strumming sessions. These sessions were sometimes interspersed with avid political debates, as happened when the Shuswap scholar and sage of the Fourth World, George Manuel, dropped by for a festive visit.[1]

A stage and screen actor of considerable accomplishment, Dan George would become in the 1970s one of the most recognizable Indian men in North America. This Coast Salish actor from the Vancouver area received an Oscar nomination after co-starring with Dustin Hoffman in Arthur Penn’s blockbuster Hollywood hit, Little Big Man. The movie perfectly captured the changing attitudes of the times in an era when old orthodoxies began to break down.

As Dan George moved into the spotlight of popular attention, public opinion was turning hostile towards, for example, the US military intervention in Vietnam. Changing perceptions on the expansionary character of US wars of aggression in southeast Asia tended to alter attitudes about many things, including the place of the Indian wars in US history.[2] As a Hollywood icon embodying the downtrodden but indomitable spirit of Aboriginal America, Dan George adeptly used his celebrity to challenge power and alter public consciousness. His main theme was the contemporary dilemmas arising from the oppression of Indigenous peoples under the weight of a North American society engineered primarily to serve the needs and wants of immigrants and their descendants.

Chief Dan George, Native American Icon, Native American Law Giver

 

Something New and Something Old,

Idle No More in Historical Context

 

I embark on this project as a new year is about to dawn. As I write, momentous events are underway with major implication for the relationship between the Canadian state and the Aboriginal peoples of Canada. These events give contemporary context and resonance to the historical processes I want to highlight. As in the era of Canada’s Centennial celebrations, the contemporary stirrings of Indigenous peoples are once again beginning to capture the attention of an aroused and restive public. The ideas and imagery of Idle No More have spilled into many venues including the byways of commerce in shopping malls across Canada and in similar installations in the United States.[3]

For short periods of time the businesses in these citadels of consumerism come to a standstill as assemblies of drummers, singers, and round dancers burst into expressive celebration. Sometimes the round dances are accompanied by sit-ins and brief blockades of road or railway thoroughfares. The emphasis on drumming, singing, and dancing invokes memories of the long period in Canadian history ending in 1951 when the Parliament of Canada made it illegal for Indian people to take part in such activities.

During the era when Canada outlawed overt expressions of Aboriginal spirituality, prairie sun dancing or West Coast potlatching were treated as retrogressive deviations leading away from the assimilationist project led by Christian missionaries empowered through federal funding of their Indian residential schools. The round dancing of Idle No More has been bursting forth in places big and small, from Vancouver, to Lethbridge, to Regina, Winnipeg, Edmonton, Brantford, Ottawa, Cornwall, and Toronto to mention only a few. One of the largest displays took place in the massive Mall of America in Minneapolis Minnesota, the metropolis from which the American Indian Movement arose to prominence in the early 1970s. From Hawaii, to Columbia, to Washington DC, to the Palestinian Diaspora, support events have rapidly proliferated. All over the world those who have suffered the incursions of colonization, by far the largest portion of humanity, can easily identify with the transformation of Native Americans into marginalized underclasses in their own Aboriginal territories.

These celebratory displays of Aboriginal affirmation resonate with some of the same energy that must have permeated the circle dancing that swept through the remaining Indian Country of the North American mid-west in 1890.[4] Some have compared the circle dancing phenomena of 1890 with the contemporaneous so-called Boxer Rebellion of Chinese patriots who opposed through direct action the onslaughts of European imperialism in their mother country.

In Bury My Heart at Wounded Knee Dee Brown famously captured literary snapshots of this time of transition in what former US president Theodore Roosevelt tellingly described in his ethnocentric history texts as The Winning of the West.[5] As Brown explained, in 1890 the era of systematic military suppression of Aboriginal peoples culminated in the US Armed Forces’ massacre of Big Foot’s band at Wounded Knee in South Dakota. The US soldiers killing spree of largely unarmed elders, women and children was meant as revenge for the Aboriginal defeat of Colonel George Armstrong Custer’s Seventh Cavalry division at the Battle of Little Bighorn in 1876.

Buffy Sainte-Marie Singing Her ballad, Bury My Heart at Wounded Knee. In 1973 the American Indian Movement took sovereign control of land at Wounded Knee, the site of the Seventh Cavalry’s revenge killing of Big Foot’s band. AIM’s stance was met with the intervention of the US Armed Forces. To this day Leonard Peltier is a political prisoner in US penitentiary. Peltier was framed, first in Canada and then in the United States, to advance the FBI’s War on AIM. The Seventh Cavalry committed the massacre in 1890 as revenge for the Aboriginal defeat of Colonel George Armstrong Custer’s unit at the Battle of Little Bighorn in 1876. This historical and contemporary milieu formed the stuff of Buffy’s extremely popular repertoire of her own folk music. Truly Buffy Sainte-Marie is a powerful writer, arranger, and performer of anthems advocating rights and dignity for Native Americans and humanity in general. Buffy has proudly held up the musical assertions of Red Power with style and verve for many decades. She has long reigned her field.

This pivotal display of massive military superiority and the willingness to deploy it unrelentingly signaled the shift that saw the targeted First Nations tightly contained within the confines of reserves and within the special laws and bureaucracies treating registered Indians in both Canada and the United States as the disenfranchised wards of federal authority. The circle dancing of 1890 signaled that many Native North Americans would not succumb to the assimilationist policies of their colonizers. They would do what was necessary to adapt outwardly to the conventions of their oppressors even as they would hold tenaciously to remnants of their own Aboriginal inheritances of culture and spirituality.

This Fourth World resistance to the hostile incursions of colonization speaks of key facets of indigenous self-determination. It is the same spirit of resistance that inspires the Idle No More movement. It is the same spirit of decolonization that ignited the flame of human dignity as expressed in the initial phases of the Arab Spring movement, especially as it took hold in the massive and disciplined displays of citizens’ solidarity in Cairo’s Tahrir Square. The round dancers of Idle No More demonstrate the same attitudes of noncompliance with bankers’ tyranny that spread to the Indignados of Europe and then gave rise to the international reach of the Occupy Wall Street movement.

Idle to More builds on the blossoming in Quebec of the Maple Spring movement. In the spring and summer of 2012 Quebec citizens took to the streets proclaiming their identity as makers of Le printemps érable—the Maple Spring. In flexing their muscles they changed the provincial government in North America’s primary French-speaking jurisdiction. They cultivated, nurtured and directed popular opposition to the top-down cult of “austerity.” Like the Maple Spring, the Idle No More movement combines targeted criticisms of particular policies with more general analysis of the prevailing political economy of ecological and social mayhem. The Maple Spring movement and the Idle No More movement converge in the importance placed on universal access to post-secondary education as a basic right of citizenship.

The Idle No More movement began in a series of information gatherings organized in late November of 2012 in the Saskatoon-Prince Albert-Regina area of the Canadian province of Saskatchewan. The organizers included Jess Gordon, Nina Wilson, Sheelah Mclean, and Sylvia McAdam. While the list of inter-related topics addressed was wide ranging, the core of the initial critique was the content of the so-called Omnibus Bill, C-45, a sweeping expression of Prime Minister Stephen Harper’s zeal to bring about dramatic transformations in some of the core structures of Canadian federalism.

A group calling itself Lawyers’ Rights Watch has described the anti-democratic character of C-45 as follows:

Protests have been triggered by Bill C-45, which violates the rule of law as it has traditionally been defined through the democratization movement of the 19th and 20th centuries. Lumping together more than 550 provisions on more than 30 topics in a 443 page omnibus bill foreclosed the open public discussion and consultation that are essential according to both the Canadian constitution and the internationally defined democratic standard of prior informed consent. As such, the manner in which Bill C-45 was presented and passed fails to measure up to Canadian or international standards.[6]

Stephen Harper, who once advocated putting a “fire wall” around the legislative powers of Alberta, seeks with his ambitious legislative agenda to diminish the role of the national government. Harper wants to hand over federal powers to provincial governments, deregulate the national economy to facilitate the enhanced commercial traction of transnational corporations, and remove federal and Aboriginal obstacles to environmentally-menacing projects like the Northern Gateway pipeline and Kinder Morgan pipeline expansion. Both proposed projects point across the mountains and valleys of British Columbia.

In order to advance this agenda, Bill C-45 includes provisions that withdraw the federal government from much of its responsibilities to protect navigable waters, to protect fish habitat throughout the many millions of swamps, creeks, rivers and lakes that are so integral to Canada’s Aboriginal geography and natural heritage. Harper is taking much of his lead from Professor Tom Flanagan, a US-educated political scientist who sought to replace the more moderate agendas of the Canadian Progressive Conservative Party with the more radical tactics and philosophy of Reagan Revolution in the United States. Borrowing wholesale from Flanagan’s inflammatory text, which characterized the Indigenous peoples of Canada as an earlier class of immigrant, Harper seeks to continue the privatization and municipalization of the Indian reserves that still adhere to Canada’s 640 or so Indian bands. Collectively all of Canada’s Indian reserves cover about ½ of 1% of Canada’s enormous land mass.[7]

Harper’s termination policies run contrary to that facet of the rule of law that has its centre of gravity in the deceptively simple wording of the constitutional provision that resides at the very core of the case that has been dubbed The Queen and Kwitsel Tatel versus the Government of Canada. Section 35 of Canada’s Constitution Act, 1982, proclaims that “the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed.” Some Aboriginal peoples in Canada are parties to the ninety or so treaties mostly with the British imperial sovereign. Others, such as those First Nation communities throughout most of British Columbia, are living on territories where the Aboriginal title remains uncompromised in any way. In much of British Columbia the requirements of the Royal Proclamation’s Indian provisions have never been met.[8]

These provisions require the Crown officers to obtain Aboriginal consent for the expansion of non-Aboriginal settlements. The result is that Canada’s westernmost province has developed outside the rule of law—imperial law, constitutional law, international law and national law. This lapse is slowly being addressed, however problematically, in the establishment of about 60 tables for Crown-Aboriginal treaty negotiations covering much of British Columbia. These so-called negotiations, however, are being sapped of substance by Crown criminal proceedings such as those directed at Kwitsel Tatel and other Aboriginal individuals in similar positions. Such criminal proceedings led by Crown prosecutors assume the outcome of negotiations before the terms of agreement are actually reached. The charges against Kwitsel Tatel signal that Crown officials representing the two levels of federal government involved in the litigation do not acknowledge the true nature of their unsound legal positions in treaty talks with the First Nations of British Columbia. Crown officials jump the gun by using the criminal courts to assert powers and jurisdictions that should be the subject of reciprocal give and take rather than unilateral assertions of authority based on nothing more than the presumption that might makes right.

By invoking the rights and titles and treaties with the Crown of all the Aboriginal peoples of Canada, section 35 helps to transcend legal distinctions that for far too long have been exploited in the ongoing renewal of divide-and-conquer strategies. As the main body of Kwitsel Tatel’s letter to Judge Thomas Crabtree should make abundantly clear, those Aboriginal peoples with treaties and those without treaties face a common onslaught of federal hostility from Stephen Harper’s so-called Ministry of Justice whenever Aboriginal and treaty rights are made subject to judicial arbitration in court. What the Supreme Court of Canada has referred to as “the honour of the Crown” has consistently been besmirched because federal lawyers representing the Queen of Canada consistently take positions in court that deny and negate rather than recognize and affirm the existence of Aboriginal and treaty rights as federal Crown officials are legally required to do.

This effort to undermine and diminish the federal and Aboriginal aspect of Canada according to imported models of divide-and-conquer neoliberalism repeats some of the same assimilationist themes attempted by the Liberal government of Prime Minister Pierre Elliot Trudeau with his notorious White Paper on federal Indian policy in 1969.[9] My impression is that the Aboriginal rejection of Bill C-45 and all it portends for Canada’s future has far more depth in the grass roots of Indian Country than did the Indian rejection of Pierre Trudeau’s and Jean Chretien’s White Paper policy of 1969. Where the latter was largely led by the federally-funded chiefs that drew their authority primarily from the federally-legislated Indian Act, Idle No More is mobilizing a more diverse constituency with spokespeople that tend to be disproportionately female.

The rapid spread of Idle No More’s contentions into, for instance, trade unionism, the Israel-Palestine question, and the assertions of indigenismo in Latin America, make it clear that the movement’s emerging leadership holds the capacity to engender extensive networks of alliance, domestic and transnational. As I write these words alliances are cutting across many sectors of civil society. From its Aboriginal base the movement as presently constituted seems to be becoming an effective conduit for more general opposition to Stephen Harper’s radical and polarizing policies. Indeed, the very legitimacy of Harper’s mandate is unclear. Ongoing revelations about widespread cheating in the Conservative Party’s capturing of a majority of seats in the Canadian House of Commons has left the Harper group with a tainted mandate.[10]

Attawapiskat as a Marker of Failed Aboriginal Policies in Canada

Chief Theresa Spence gave a clear centre of gravity to the initial phase of the Idle No More movement. The elected chief of the Attawapiskat reserve on the western shores of James Bay, Chief Spence began on December 11 a principled pilgrimage into hunger and want. Chief Spence’s ritual of self-sacrifice through fasting is, as I write, taking place in a teepee on Victoria Island in the Ottawa River just across from Parliament Hill. My son Sampson was able to visit Chief Spence personally on Christmas Day.

As I write, the Chief of Attawapiskat will join a group of fellow chiefs elected by the terms of the Canadian Indian Act to meet with Canadian Prime Minister Stephen Harper and a representative of Queen Elizabeth II in Her capacity as the primary trustee of the Aboriginal and treaty rights of the Aboriginal peoples of Canada. Historically the Queen’s ancestors invested the royal family with the ultimate responsibility for upholding the Crown’s side of treaty agreements with the Aboriginal peoples of Canada. Unfortunately, the heavily-politicized Governor-General’s Office has little remaining credibility among First Nations or many other discerning Canadians. The Office of the Queen’s representative in Canada was severely sabotaged in 2008-2009 when Prime Minister Harper bludgeoned the Queen’s Representative in Canada who illegally adjourned Parliament just as he was about to lose a confidence vote and thereby open the way for the leaders of other parties to form a majoritarian coalition.

The very setup of this meeting of January 11, 2013 brings out into the open the growing divide between those individuals and family voting cliques who work within the Indian Act system and those grass-roots community activists in Indian Country who have put at the forefront their unwillingness to comply any longer with a system of institutional assimilation that inherently denies and negates section 35. This long-developing schism promises to ignite a serious national debate on the Indian Act and the representation structure of the Assembly of First Nations, an association composed of Canada’s 650 elected chiefs chosen according to the provision of the Canadian parliament’s Indian Act. These Indian Act chiefs maintain their monopolization over the process of electing the AFN’s National Chief. The National Chief’s very narrow constituency of electors seriously limits the representational effectiveness of Canada’s most high-profile Aboriginal organization. This lack of effectiveness was put on clear display in 1992 in the national referendum on a proposed constitutional amendment. This amendment failed to receive voter support on most Indian reserves in spite of the fact that so many provisions were negotiated with the direct involvement of AFN National Chief, Ovide Mercredi.

An ancient staple of Chief Spence’s home community is geese. Geese and wild rice make up an abundant renewable resource that has long fed the Muskego Crees in the swampy borderlands of Canada’s arctic tundra. The richness of the indigenous food sources on the shores of James and Hudson’s Bays has been matched in every Aboriginal territory across the land. For instance seafood formed, and in some cases still forms, the main staple along Canada’s coastal waters whereas corns, beans and squash gave the people of Iroquoia their main sustenance in what is now southern Ontario and the St. Lawrence Valley. Across the prairies buffalo offered the two-leggeds an incredibly prolific means of earning livelihoods. On the Canadian Shield a cornucopia of wild mammals, fish, berries, together with the produce of small Aboriginal gardens kept the people strong and healthy. The natural medicines of herbs, clean water, clean air, pure foods, and rich weavings of interpersonal, intergenerational, and interspecies relationships thrived, offering all that was needed for good mental health as well as hardy physical health.

Through the agency of federal control, however, Indian people have been largely stripped from their Aboriginal lands and waters and stripped from their Aboriginal polities, belief systems, and lifeways. In the process many Indian communities in Canada were transformed from sites of thriving wellbeing into gateways leading to hell on Earth. As with too many of Canada’s Indian reserves, plagues of homelessness, malnutrition, addictions, unemployment, medical malfeasance, and domestic violence have been allowed to rage throughout Attawapiskat’s imperiled population.

The festering of these lethal conditions at Attawapiskat and on many other Indian reserves and urban ghettos stand as markers of despair that rightfully hold Canada up to international infamy. Such disfiguring wounds in our blighted body politic shames a resource-rich country that has made a small minority very rich from the industrial-scale exploitation of nature’s Aboriginal bounty. The result is that swelling millions of critics the world over are pointing fingers of sharp condemnation at Canada’s federal government. The evidence is mounting that the federal government is quickening the pace of its violations of fundamental human rights through the rapid acceleration of its notorious regime of dispossession and subjugation of the country’s original inhabitants, the First Nations of Canada.

One of the systemic problems is that the scope of the rights and titles of Aboriginal peoples is almost never subjected to genuine third-party adjudication when assertions of Aboriginal sovereignty and ownership of resources come up in court. In Canada judges owe their appointments to federal and provincial politicians even as they frequently own land title and draw paychecks that depend on maintaining the status quo in the jurisdictions where they and their families reside. As a rule, therefore, Canadian judges are not in a position to render genuinely disinterested verdicts on Aboriginal matters because they have large personal stakes in the very issues they must decide. This bias puts the whole judiciary in positions of institutionalized conflict of interest. This dilemma is not unique to Canada. Indigenous peoples in most countries that began as settler colonies are almost universally subject to regimes of extreme injustice where the bias of power is pronounced even when it comes to the supposedly disinterested venue of litigation.

Canada Before and After 1867

 

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