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| XX | Vol. XVIII, No. 3______ Fall, 2007 ARTICLES:
Michael (Mickey) Posluns,
“An Introduction to the Metaphysics of Indian Hating and
Its Role in the Formation of Public Policy.”
AN INTRODUCTION TO THE METAPHYSICS OF INDIAN HATING AND ITS ROLE IN PUBLIC POLICY FORMATION Michael (Mickey) Posluns, Ph.D. I first came across the term “the metaphysics of Indian hating” as part of the subtitle of Richard Drinnon’s 1982 book, Facing West: The Metaphysics of Indian Hating and Empire Building1. Drinnon had taken the expression from a chapter title Herman Melville’s 1857 novel, The Confidence Man2. Drinnon’s book greatly influenced the course of my doctoral dissertation on the discourse on the testimony of First Nations’ leaders before Canadian parliamentary committees and the response of parliamentarians during the 1970s. What I found helpful about Facing West was only partly Drinnon’s examination of the discourse about Native Americans amongst Euro-American settlers from the earliest settlements to the most recent colonial wars, but his interest in the underlying attitude, the world view or metaphysic belied by the words and conduct of successive generations of American leaders. (One example of current events where the metaphysic of Indian hating is evident is the frequent occurrence of the term “Indian country” in cockpit recordings from U.S. fighter aircraft played on television news and public affairs programs.3 The people and places about to be strafed or bombed by American forces continue, to this day, to be referred to as “Indian Country” so that the term does not so much describe a territory in the South Western part of the United States, as it refers to whatever territory the U.S. Cavalry and its successors pillage. Canadians enjoy a myth that holds that their history, and particularly the history of their Indian policy has been both less violent and more benign than their American counterparts. My own observations of federal policy makers and the mass media, that now extends over several decades, runs in quite the opposite direction. Apart from having had relatively few “Indian Wars” in the middle quarters of the 19th century, I do not think that Canada has had a remarkably less violent history; and, in regard to the actions of the U.S. Cavalry, Canadian settlement on the prairies benefited almost as much as its American counterpart. Although it is true that the history of Canada in the 19th century is not characterized by frequent “Indian wars” this view of Canadian history is largely colored by wishful thinking and selective perception. Three brief examples to the contrary are (1) the long list of civil disabilities imposed on First Nations communities and Indian persons from 1882 to 1951, beginning with the general thrust of the Canadian Indian administration and its attempt to dissolve or destroy traditional First Nations personalities, (2) the general contempt of successive parliaments and governments for the solemn promises and obligations made to various First Nations by the Crown in right of Canada in treaties; and, (3) the capacity of federally sponsored, church run “residential schools”4 to achieve a mortality rate touching on 50%, and exposed in magazine articles by the Dr. P.H. Bryce, the Chief Medical Officer of the Indian Affairs Dept., and, a few year later, S.H. Blake, Q.C., a distinguished lawyer engaged in negotiating contracts between the government and the churches as early as 1907 more clearly set the moral tone of the settler population in the northern half of the continent.5 Dr. Bryce described the schools as “having a higher mortality rate than most wars.” Mr. Blake, when he was assisting in negotiations for the 1911 [residential school] contracts, offered the opinion that because the department had done nothing over the decades “to obviate the preventable causes of death, [it] brings itself within unpleasant nearness to the charge of manslaughter.” Yet these schools carried on into the 1970s. These “schools” were neither the last nor the only horror of epic proportions in the history of Canadian Indian policy. I cite them here simply because they are emblematic of both the history of Indian policy and of the political attitude of government officials, politicians and influential citizens which I wish to examine under the rubric “the metaphysics of Indian hating.”6 The number of incidents in recent years that are suggestion of a metaphysic of Indian hating are so numerous that it is hard to select candidate events for a short list. Nonetheless, I offer the following list of illustrative examples: · The non-fulfillment of the James Bay and Northern Quebec Agreement(JBNQA) including the epidemic that followed from the failure to develop proper sanitation at new village sites, the withholding of funds promised in this modern treaty as a pressure to induce Cree communities to support hydroelectric projects, the denial by Quebec authorities of the existence of species of animals, e.g., freshwater seals, on which some Cree families depended for their livelihood; and the denial by the Federal Administration of the JBNQA that there was a binding obligation on his office to require an environmental assessment prior to further projects. · Following the introduction by the Supreme Court of Canada of a rational set of tests and standards regarding the recognition of Aboriginal rights (including Aboriginal title) and treaty rights, the steadfast refusal of Canada and several provinces to follow those standards, and, more particularly, to conduct genuine consultations with First Nations, including a full disclosure of information at the disposal of the appropriate government agencies, and more generally a disinterest in maintaining “the honor of the Crown” which the Court had said was at stake in all the dealings of both federal and provincial governments with First Nations. Each instance in which a claim to an Aboriginal title has been ignored by the federal or provincial governments has constituted a defiance of the Constitution and the law as they have been interpreted by the Supreme Court which, in turn, has forced a succession of First Nations into court at great expense both of money and of scarce human resources. Each of these incidents represents an occasion on which the Crown (whether in right of Canada or in right of a province) has said, in effect, that a renewed relationship on a much healthier basis between the Crown and First Nations is not a high priority for that particular government. Likewise, the steadfast refusal of successive governments to recognize an inherent right of self-government by First Nations within Confederation coupled with the perpetuation of the Department of Indian Affairs and Northern Development has maintained a colonial relationship in defiance of committee reports from both Houses of Parliament9 and the Royal Commission on Aboriginal Peoples. What I mean by “a metaphysic of Indian hating” is an attitude deeply embedded in a world view or a more specific body of thought that disparages or denies the fundamental humanity of an individual or a human community, large or small. Hatred is defined as “an extreme emotion of dislike, abhorrence or aversion; detestation, abhorrence, hatred.”9 Unfortunately, contrary to the OED the term is not now mainly poetic. In addition to being commonplace in the discourse of persons in their early teens, hatred has played and continues to play an important role in political discourse. The most stunning example in Drinnon’s work (at least, to my mind) was a response of a Captain Walsh, an infantry officer and former Methodist missionary, when asked why he skewered Indian children on his bayonet. “Nits make lice,” he responded. An underlying remnant of that Nazi-like answer runs through the history of First Nations relations both in the United States and Canada. Hatred, as an emotional idea10, has been, and continues to be every bit as real as patriotism, loyalty or other forms of institutional love. Citing a territory one is about to strafe as “Indian Country” serves as a validation and justification of the impending action. The justification rests on a synecdoche (or metonymy) equating an immediate (and lately overseas) territory with an historic territory within the continental United States in which it was not only permissible but commendable for American soldiers to vent their spleen and wreak as much havoc as possible. Canada and the Metaphysics of Indian Hating Canadians might plead a more gentlemanly style, but the direction and the overall effect is not different. In 1920, Duncan Campbell Scott, the Deputy Superintendent General (corresponding to an assistant deputy minister or an under secretary today) told a Commons committee that his goal was to work toward the day when there would not be a single Indian remaining on Indian land in Canada. When Parliament established a Joint Committee on Indian Affairs to consider policy options following the end of WWII, Diamond Jenness, then Canada’s most distinguished pioneer anthropologist, and an employee of federally owned museum presented a submission to the Joint Committee echoing Scott’s views of a quarter century earlier. Rather than honoring the Indian veterans (who had been the largest single enrolment of any ethnic group in the Canadian Army) by extending them the franchise or allowing them the same generous veterans charter that was given to all other veterans, he favored a program of cultural assimilation and termination of the Indian reserve land base. This perspective was echoed by the then Prime Minister, William Lyon Mackenzie King Twenty years later the King view was echoed once again by Prime Minister Pierre Elliot Trudeau. George Manuel, then the president of the National Indian Brotherhood remarked, in his memoir, The Fourth World: An Indian Reality, that Trudeau’s White Paper “was written by the ghost of Mackenzie King.”11 Most recently, the Reform Party (later known as the Alliance Party and presently the Conservative Party of Canada) opposed the Nisg’a Treaty Ratification Bill and other bills to ratify land claims and self-government legislation on the argument that Trudeau had it right when he proposed to abolish the remnants of Aboriginal rights and that section 35 of the Constitution Act, 1982, far from being regarded as a “promise,” as Chief Justice Brian Dickson described it in his decision in Sparrow, it ought simply to be ignored.12 Their steadfast hostility to the recognition of Aboriginal and treaty rights is evident in any review of the past two years when they have formed the Canadian federal government. The most stellar example of the metaphysics of Indian hating by public officials is the extent to which Indian policy has been on the cutting edge of newspeak from its earliest days. If George Orwell was really unfamiliar with the Indian Affairs Branch in Canada he surely missed the greatest fulfillment of his intuition that politicians and officials, faced with inconvenient facts invented new language or new meanings for old language. The hallmark of Indian Affairs newspeak began with the use of “enfranchisement” to mean the eviction of a person from their ancestral home and their extended family if (a) the person was an Indian man who became self-supporting or (b) the person was an Indian woman who was married to a man who became self-supporting or (c) the person was an Indian woman married to a man who lacked Indian status, whether or not he was in all other respects an Indian. This linguistic feat has been hard to match but officials in each succeeding generation have made an effort to maintain an inscrutable and incomprehensible discourse in their development of Indian policy. Perhaps the most extreme modern day example is the introduction of the term “inherent right of self-government” as a term now supported by federal officials and ministers, provided that the term means neither more nor less than the meaning that they ascribe to it. This is in contrast to the notion that ‘inherent rights” are the rights that a First Nation community or its members exercised before the exercise of British dominion over their lands. In 1985, when David Crombie, then Minister of Indian Affairs, introduced Bill C-31, a bill purportedly intended to end discrimination against women who married men without Indian status (under the federal Indian Act) he stated repeatedly that, once Parliament had repealed the discriminatory provisions it had put into the, First Nations communities would be free to assume responsibility for establishing and administering their own membership rules. What has, in fact, happened over the past 22 years, is that if a band allowed a broader interpretation of membership than that supported by the federal government, they were further impoverished because the government allowed per capita grants based on its view of those bands’ populations. Newspeak is intimately tied up with hating. If I wanted you to understand what I was saying I would learn to write and speak in terms that you can understand. Senior officials in Indian Affairs, and in such central agencies as Justice and Finance, discuss Indian policy in terms that remain largely incomprehensible to almost all who have not been initiated into their own secret society. A few First Nations leaders have gone to the trouble of learning the jargon of Indian Affairs officials. When they have spoken in this tongue in giving testimony before the Commons Indian Affairs Committee it has quickly become evident that very few of the MPs understood the jargon. By and large, the MPs have been more willing to indicate that they do not understand this language when it is used by First Nations witnesses than when it is used by departmental officials. While it may be that bureaucrats in all departments of almost all quasi-democratic governments commonly speak an arcane jargon to one another, Indian Affairs distinguishes itself amongst departments of the Canadian federal government as being one of the few departments to provide (or be mandated to provide) services directly to individuals and human communities. Social services to ordinary individuals are provided by the provinces and their municipalities. In contrast, the Supreme Court has written, in a lengthy string of decisions about the need for reconciliation between the common law and First Nations law. Indeed, since the earliest case interpreting section 35 of the Constitution Act, 1982, the Court has consistently taken the view that accommodation and reconciliation are necessary corollaries to consultation, as is a full disclosure of relevant information by the Crown or government agencies to First Nations’ governments whose rights may be affected. I suggest that the first step toward accommodation and reconciliation is to write and speak about human communities as though those communities were vital parts of one’s audience and readership. The persistent unwillingness to conduct First Nations relations in keeping with these goals is, I suggest a manifestation of the metaphysics of Indian hating. Likewise, the tendency to pretend to adopt goals presented to parliamentary committees and the courts by First Nations, while investing the key terms with entirely different words is a contempt of Parliament, of the courts and of the First Nations, their local communities and their individual members who the officials and ministers pretend to serve. U.S. Chief Justice John Marshall addressed this problem some years ago in Worcester v. Georgia: The words “treaty” and “nation” are words of our own language, selected in our own diplomatic and legislative proceedings, by ourselves, having each a definite and well understood meaning. We have applied them to Indians, as we have applied them to other nations of the earth. They are applied to all in the same sense. Marshall recognized the tremendous wrong that flows from using the same terms while ascribing to them quite different meanings. The terms at issue have changed somewhat from his day to ours. My question is whether the ethic of governments have changed very much? And whether the ethics of the Canadian government is ever so much different from our friendly neighbor to the south? The Bridge from Officialdom to Citizenry From the 1990 decision known as Sparrow13 first decision interpreting section 35 of the Constitution Act, 1982, the section guaranteeing “the rights of the Aboriginal peoples of Canada,” the Supreme Court of Canada has emphasized that the rights it was addressing, in case after case, belonged to particular First Nations, e.g., the Mohawk nation, or the Anishinabek, or First Nation communities, e.g., Akwesasne or Shawanaga. For example, in Sparrow, Chief Justice Dickson observed that the right to fish was “always regulated, albeit self-regulated.” The “self” in question is the Musqueam First Nation or the Coastal Salish Nation. Mr. Sparrow participates in the right to fish by virtue of his membership/citizenship in those nations. Later decisions, dealing with the right to market fish, the right to hunt moose and the claim of an Aboriginal title in the land all maintain this same principle: Aboriginal rights, including Aboriginal title as well as treaty rights are all rights of the particular community. Yet, if you follow the discourse of parliamentarians speaking about Aboriginal matters, including economic development through the better exploitation of the various kinds of economic rights, you hear (or read) constant reference to individuals to whom the parliamentarians want to provide additional services, primarily through a department of government repeatedly cited as the most incompetent department in the public service.14 Indian Hating Amongst the Citizenry, i.e. the General Population If I speak of the citizenry as “the general population” will anyone recognize this term as one originating in reference to that part of the prison population who are not segregated into special units, solitary confinement or the prison’s hospital wing? The question is significant here because I want to speak about my readership in the same terms that I would use in speaking to them or with them. The first measure of Indian hating is the dedicated and devout cultivation to ignorance found not only in the general population but also amongst otherwise distinguished academics and scholars. I daresay that there may be more Canadians able to identify the names and territories of provinces of Afghanistan than can identify the names and territories of First Nations in Canada. Such information may seem very elementary, as indeed, it should be. Yet, when we look at the Supreme Court’s discussions of Aboriginal and treaty rights we see that this elementary information is absolutely essential to understanding these concepts now enshrined in the Canadian Constitution. When the Court found that a Mrs. Van der Peet did not have a right to market her fish, though she did have a right to catch fish to feed her family and for ceremonial purposes, the judges were basing their decision on the question of whether or not marketing was a pre-contact practice of a her nation. Not to be able to place that nation on the map is to not understand the judgment of the Court, whether one agrees with it or not. Likewise, the Court brought the same concept over to the question of the claim of various Metis defendants to an Aboriginal right to hunt moose. The question the Court asked was, “Was the defendant a member of a community that can trace its history back to a certain date, i.e., to a time before European domination?” In one case, Pawley the defendant could do so. In another, Blais, the defendant could not do so. There has been a concerted campaign by government agencies and by some non-governmental agencies to foster the impression that most First Nations are deeply misogynist and that their traditional cultures abuse the women of the nation. I have spoken with distinguished professors who have swallowed this claim, hook, line and sinker. Yet, if I asked, “Which First Nations are traditionally matrifocal,” they are not able to answer. Likewise, there has been a campaign putting out the notion that government spends far more per capita on “Indians” than it does on other citizens. Yet, a close analysis of funds spent per capita in First Nations communities and other communities shows that First Nations receive about $9,000 per capita per year while villages, towns and cities receive about $14,000 per capita per year. The First Nations figure is also open to further scrutiny: (1) a large proportion of the monies voted by Parliament for First Nations is consumed by departmental headquarters salaries and office costs; (2) every time a program is transferred from Indian Affairs to a First Nation the amount of money voted for the program is reduced; (3) schools run by First Nations receive about two-thirds the amount received by neighboring school boards for the education of Indian children. What I mean by “cultivated ignorance” is the capacity to swallow this anti-Indian propaganda and to participate in the belief that First Nations leaders must be stupid, incompetent and corrupt for accomplishing so little with so much money. The president of the Haldimand County Lawyers’ Association wrote a letter to the local newspaper during an occupation of a housing development by Mohawk people from Ohsweken who say that the land on which the development was being built was part of a land claim. The Lawyers’ president called for “the rule of law.” Yet, I do not recall he or his predecessors having called for the rule of law in any of the many instances when land, in their area, was unlawfully taken from the Six Nations reserve. Not do I recall he or his colleagues objecting when the R.C.M.P. unlawfully entered the traditional Longhouse and seized the Fire Council Wampum. The list of other occasions on which a timely call for the rule of law would have been most valuable is too long to be included here. Given the quasi-democratic nature of Canada, I am inclined to believe that the constituents of the various politicians and senior officials whose words I have quoted here generally viewed their statements with approval. I daresay that few of the members of the Haldimand Lawyers’ Association could tell you much about the Six Nations Confederacy and its legal traditions -- I wonder what they are doing to achieve the reconciliation of common law and First Nations law urged upon the legal profession by the Supreme Court? How do political scientists remain ignorant of the traditional constitutions of the Indigenous peoples of Canada while pretending to have a deep attachment to the Canadian Constitution? If the Canadian Constitution includes a promise that the Court has construed as pointed to accommodation and reconciliation how are those lofty goals to be achieved without a knowledge of the diverse legal systems to be accommodated? If geography teachers cannot name the various First Nations, how are they to relate “the lay of the land” to the traditional lifeways of the people who lived in harmony with the many different kinds of land for thousands of years? Or are elementary and secondary school teachers destined to perpetuate the cultivation of ignorance that runs through the history of education in Canada? John Locke argued that civilization began with agriculture and with literacy. From the earliest settlements here in North America there has been a practice of pretending that First Nations had neither agriculture nor literacy. Yet the food that various First Nations shared with early settlers came from their agriculture. “Wilderness” is what crept into the fields cleared by eastern First Nations after their populations were catastrophically reduced; it was not what the early settlers found either in the lands now occupied by the United States or the lands presently occupied by Canada. Locke’s notion of a time when there was no civil society, when each man was entirely free was, on Locke’s part, entirely a fantasy useful as a starting point for his philosophical argument. But his argument has been used by generation after generation of political theorists in an attempt to explain the dynamics of European settlement. Whether Locke participated in the metaphysics of Indian hating in his own lifetime, the premise that he set forth has been used to buttress that metaphysic from his day to our own. There are some haphazard efforts to introduce some elements of First Nations cultures into the general curriculum. Whether Canada is prepared to address the deficiencies and disasters of its historical relationships with the various First Nations, as Germany has confronted the darkest moments of its past, or whether Canada will continue to play an Austrian hand and claim to be an innocent bystander remains to be seen. Michael (Mickey) Posluns, Ph.D. would welcome readers’ comments on the notion of a metaphysics of Indian hating. References1. Richard Drinnon, Facing West: The Metaphysics of Indian-Hating and Empire Building Minneapolis: University of Minnesota Press,1980. 2. Herman Melville, The Confidence Man, New York: Dix & Edwards, 1857, republished by Airmont Publishing Company Inc., reprinted in conjunction with Ryerson Press, Toronto, 1966. The full title of Chapter 26 reads, “Containing the Metaphysics of Indian-hating, According to the Views of One Evidently not so Prepossessed as Rousseau in Favor of Savages.” 3. I first heard this expression watching footage shot over Vietnam. I last heard this expression watching footage shot over Afghanistan. 4. I have taken to putting the term “residential school” in quotation marks because the notion that “schools” could produce a mortality rate higher than their graduation rate remains incomprehensible to my mind. 5. The most scathing summary of the conditions in these schools occurs in the Report of the Royal Commission on Aboriginal Peoples (RCAP), in the paragraphs numbered “records 1820-1928 in the CD-ROM edition (Ottawa: Libraxus, 1996). The remarks of Dr. P.H. Bryce, the Chief Medical Officer appeared in Saturday Night magazine, November 23, 1907 and are quoted in RCAP at record 1824. Dr. Bryce described the schools as “having a higher mortality rate than most wars.” S.H. Blake, QC, a distinguished solicitor who assisted in negotiations for the 1911 [residential school] contracts, offered the opinion that because the department had done nothing over the decades “to obviate the preventable causes of death, [it] brings itself within unpleasant nearness to the charge of manslaughter.” Much of this report may also be found on an Indian Affairs Branch web site. See, in particular, Vol. 1, Looking Forward, Looking Back, Chapter 10, “Residential Schools.” 6. A general outline of these horrors is presented in Speaking with Authority: The Emergence of the Vocabulary of First Nations’ Self-Government, chapter1, “The Interplay of Language, Policy and Ethics in the Discourse of First Nations Relations,” Routledge: New York, 2006 In the book on which I am about to embark and of which this essay is an outline, I will further address the nature of official and citizen culpability and other questions which can not be examined in this short essay. 7. For a discussion of the concepts of the duty to consult and the duty to consult see Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73 and Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69. These and other recent cases can be found either through the web site of the Supreme Court of Canada or through the CANLII (Canadian Legal Information Institute) site which also has decisions of provincial superior courts and courts of appeal and federal and provincial statutes. 8. Specifically, the final report of the Commons Special Committee on Indian Self-Government, Keith Penner, chairman, 1983 and the 2000 Report of the Senate Committee on Aboriginal Peoples entitled, Forging New Relationships The more recent parliamentary committee reports and proceedings can be found on the Canadian parliamentary web site, www.parl.gc.ca. 9. “Hate”, Oxford English Dictionary, CD-ROM. 10. I have often reminded my students, individually and in classes that it is generally unwise to attribute emotions to corporate entities including government agencies. I do, however, grant that it is appropriate to ascribe emotional ideas to individual officials and to the general consensus of officials within an agency, as part of an explanation of that agency’s policies. 11. George Manuel and Michael Posluns, Collier-MacMillan: Don Mills, Ontario and The Free Press: New York, 1974. 12. It is always interesting to watch right wing opponents of civil rights when they want to describe judicial decisions that uphold the plain sense of the Charter of Rights or the later Part II of the Constitution Act, 1982 with its Rights of the Aboriginal Peoples of Canada: the knee jerk temptation to describe decisions such as Dickson’s in Sparrow as “judicial activism” is occasionally challenged by the knowledge that these guarantees of rights were adopted by Parliament and by every provincial legislature. 13. R. v. Sparrow, [1990] 1 S.C.R. 1075 14. The Penner Report on Indian Self-Government said that the Indian Affairs Department was not an appropriate agency for renewing government relations with the First Nations in light of its historic role as the major source of the present situation. This view was repeated by the Royal Commission on Aboriginal Peoples and by the Senate Committee on Aboriginal Peoples. The Joint Committee on Statutory Instruments reported, as far back as 1976, that the two departments most uncooperative in their response to requests from that Committee requests to identify the statutory authority for their exercise of executive power were the Indian Affairs Branch and the then Department of Manpower and Immigration. Michael (Mickey) Posluns, Ph.D. can be reached at: mposluns@accglobal.net. +>>>><>>><<<><<<<+
ESQUEGA V, CANADA (ATTORNEY GENERAL): CHIEFS AND CONCILORS NO LONGER HAVE TO LIVE ON RESERVE Rarihokwats and Michael Posluns As a result of the decision of the Federal Court of Canada (FCC)1 in Esquega v. Attorney General chiefs and councilors, the elected leadership of First Nations communities in Canada no longer need to live on the lands reserved for their First Nation community.2 This raises the specter of off-reserve members of a First Nation deciding to move the band offices to an urban area, to dedicate as much funding as possible to urban residents, and to just leave the residents on reserve to figure out how they are going to cope on their own. Esquega was a decision of the Federal Court that came as a result of an application from certain members of the Gull Bay First Nation, located on the east side of Lake Nipigon, a large interior lake north of Lake Superior in North Western Ontario.3 At Gull Bay, the percentage of off-reserve members increased from 55% to 70% over the last three years as the Council included off-reserve members. Historically, band councils have had powers very similar to the powers of a municipal council. Under the Canadian Indian Act these councils were expected to provide local government for the land designated as the lands reserved for a certain band and for the members of that band while they are living on their reserved lands. In a1999 decision, Corbiere4, the Supreme Court of Canada ruled that non-resident members of First Nations communities had some interest in the future of the community to which they belonged and that the Minister of Indian Affairs was to make some provision for non-residents to participate in the proceedings of band councils. The Supreme Court of Canada criticized Indian Affairs for its failure to introduce legislating to make some provision for off-reserve members. The Supreme Court even suggested some solutions in that case: `Some parties and interveners have mentioned the possibility of a two-tiered council, or reserved seats for off-reserve members of the band, of double-majority votes on some issues.… But [the government ] no evidence of efforts deployed or schemes considered and costed, and no argument or authority in support of the conclusion that costs and administrative convenience could justify a complete denial of the constitutional right. Under these circumstances, we must conclude that the violation has not been shown to be demonstrably justified.5 In Corbière, the Court gave the federal government eighteen months to (a) consult with First Nations, and (b) to amend the Indian Act, presumably to offer one or more of these options. Instead, (a) Indian Affairs engaged in only the most perfunctory of consultations, and (b) did nothing except to pass a regulation allowing chiefs to be non-residents. We need to ask whether the government’s failure to active positively was a deliberate step toward dismantling the Indian Act, or whether it was simply the usual incapacity of Indian Affairs to engage in constructive and collaborative action? In Esquega, the only voice heard was that of councilors who favored off-reserve councilors. Resident members were not heard. Other First Nations were not heard. The only voice in opposition was that of the Attorney General of Canada, who presented as his only witness a person who was unable to answer even the most basic of questions as to why the Indian Act had limited councilors to those resident on reserve. The witness said that her answers to some questions were just “personal opinions.” No effort was made by Indian Affairs to alert First Nations of the significance of the case. The Harper government stopped providing funds for “Charter challenges” soon after it came into office. Only the handful of independently wealthy bands could afford to intervene, if they had been properly briefed. At the end of the day, the Federal Court – a trial court that hears cases involving federal administration – found that s. 75(1) of the Indian Act is unconstitutional because it is in breach of the Charter. However, it delayed the declaration of invalidity for nine months – until 30 June 2008. This, the court said, would give the Government of Canada time to amend s. 75(1) so that it was no longer in breach of the Charter Under the Indian Act, some First Nations’ reserved lands are divided into districts, with a certain number of councilors being elected from each district. A councilor had to be resident in the district the councilor represented. It appears that all this has been wiped out by Esquega. The Government has until September 30 to decide if it will appeal the decision. Conceivably, it could be argued that there is a duty of some consultation with First Nations as to whether to appeal. At least, it would seem there is a duty to immediately advise First Nations of the decision. Also, those who do know about the decision may want to make their views known to the Minister. In the meantime, the Indian Act remains as it is Elections held between now and June 2008 must be held according to provisions of the Indian Act or they can be subject to appeal on the same grounds that the Gull Bay election was appealed, i.e., that the law is unconstitutional. On the other hand, since the Act has not yet been changed, no election can be held under the new rules. There are, as yet, no new rules. This impossible situation could mean that no election can be held under the Indian Act for the next nine months. There is the possibility that the decision will have to be taken into account for all appeals now before the Minister of Indian Affairs – probably dozens of them. Can the Minister uphold a law that has been ruled unconstitutional? No, but yet the Minister will not have authority to decide re residency under any grounds except the current Act. It is also conceivable that legal challenges – rather than appeals under the Indian Act – could be made on the validity of all chiefs and councilors holding office pursuant to an Indian Act election over the last two years. Only the Government has the automatic right to decide to appeal or not to appeal. If the Government does appeal, chances are the case will go to the supreme Court of Canada, meaning a final decision will come down about 2010 with good luck. First Nations, tribal councils, Assemblies, etc., could ask the Federal Court of Appeal for leave to intervene in an appeal if one takes place. The window of opportunity to intervene is likely to open and shut rather rapidly, meaning that First Nations who oppose the decision should be organized and ready to go in October. Almost certainly non-resident organizations will also want to intervene to oppose the Government’s case. Should be quite a circus for the Federal Court of Appeal to handle. “Only in Canada,” you say? P.S. The Federal Court hearings were held in Thunder Bay, Ontario Gull Bay is 120 miles away, nearly a three-hour drive on remote northern Ontario roads. END NOTES 1. The full text of this decision, Esquega v. Canada may be found at http://www.canlii.org/en/ca/fct/doc/2007/2007fc878/2007fc878.html. CanLII has become the authoritative web site for Canadian legal information including both legal decisions and statutes and regulations. 2 Broadly speaking, “reserve” is a Canadian synonym for the American term “reservation.” The term likely originates in the list of federal powers in the Constitution Act, 1867, in which s.91(24) lists “Indians and lands reserved for the Indians” as an exclusively federal power. Under the Canadian Indian Act a First Nation community is described as an “Indian band.” Within the terminology developed by First Nations political leaders over the past twenty-five or more years, an Indian band is either a “First Nation” or a “First Nation community.” 3 See http://atlas.nrcan.gc.ca/site/english/maps/topo/map? for the location of Gull Bay as reported by the National Atlas of Canada. 4 Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 may be found at http://scc.lexum.umontreal.ca/en/1999/1999rcs2-203/1999rcs2-203.html. 5 Corbiere v. Canada. Under the Canadian Charter of Rights and Freedoms, when a party has demonstrated that a provision of a statute or regulation violates a “Charter right” the government may enter a defence that the violation is “demonstrably justified in a free and democratic society,” provided that the interference is no greater than necessary for some stated public purpose. In Corbiere the government entered such a defence. The Court was not persuaded. +<>+<>+<>+
CITIZEN PARTICIPATION AND DEVELOPMENT: A HISTORY AND TENTATIVE RESULTS OF GUATEMALA’S DEVLOPMENT COUNCIL SYSTEM Mark Gibson, gibsonmc@gmail.com, July 2, 2007 Guatemala is today experimenting with an unusual public investment system. Called the Development Council System, it incorporates citizen participation into investment planning activities while at the same time organizing and teaching communities to advance own development. In light of current development theory, this is important for three reasons. First, investment in a service or infrastructure project does not mean real needs will be met. To combat underdevelopment, information is needed on the poorest of communities. Yet these communities are often the most geographically and socially removed from planning processes. This is especially the case for Guatemala after centuries of centralized planning and racist policies. As a result, more than 60% of the population lives in poverty and this is highly concentrated among its indigenous. Second, there are many cultural components – e.g. values, attitudes, and beliefs – to underdevelopment. A weak rule of law, feelings of powerlessness, and isolating social norms, for example, limit the ability of different groups to meaningfully participate in the economy and government, even after receiving better roads, improved education, and the like.
For three months last year I conducted research in Sacatepéquez, Guatemala – one of the country’s 22 departments. I discovered that after twenty years in the making, the Development Council System still struggles to achieve its goals. Tentative findings, however, reveal that not all has been in vain. The Development Council System
Unconstitutional Councils
Peace and Change
Unfortunately for El Hato, it seems that the village will either need to change its ways of planning or risk missing out on the benefits of the Development Council System. El Hato’s manner of working with the municipality, combined with the Mayor’s intolerance, has now closed all possibilities for cooperating. Pedro Socorec, El Hato’s community council president, gravely notes, “Our highway may wash out this rainy season and the Mayor does not even respond to us anymore.” Tentative Conclusions
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CLIMATE CHANGE, RELATED ENVIRONMENTAL DEGREDATION AND INDIGENOUS PEOPLE Stephen M. Sachs Climate change, from largely human induced global warming, and other environmental degradation from pollution and over use of resources, effects everyone on the earth, but in many instances is particularly impacting poor, and especially indigenous people. In the past, when faced with changing natural conditions, indigenous people could adapt. But that is much harder to do now. Using their traditional knowledge, indigenous people on Islands of Indonesia had foreknowledge of the tsunami that wreaked great havoc in the region, to escape inland before the great wave struck, and suffered no deaths or injuries. This is becoming more difficult to achieve, for two reasons. First, as climates and related conditions change, traditional knowledge is less applicable to the developing physical circumstances. Second, and more important, Indigenous people are more and more constrained in moving, as they are limited to reservations, often shrinking traditional areas, or own land privately that they may not be able to replace, if forced to move. Thus, as the combination of rising ocean, more intense storms, and the washing away of costal wetlands because of the dyking of the Mississippi River cause costal lands in Louisiana to be lost to the Gulf of Mexico, the tribes that live on that coast line have no where to retreat to.1 The United Houma Nation, the Chitimacha, the Pointe au Chien, the Biloxi-Chitimacha Confederation of Muscogee, the Jena Band of Choctaw and the Chanta, who were the backbone of the Louisiana seafood, crabbing, oystering, shrimping, hunting, alligator and fur processing industries, not only endured serious losses of homes, boats and other property from hurricanes Katrina and Rita, but suffered significant land loss, leaving them more threatened for the next major storm, which may completely obliterate their remaining land bases. The impact of severe weather on indigenous people was evident, in August (as reported above), when the worst storm in memory crashed through Mexico’s Yucatan peninsula, not only destroying houses, but felling thousands of fruit trees that are the livelihood of Mayan people. But that is only one effect on weather from global warming. Tribes, and other farming and herding people in Africa are losing irreplaceable arable and grazing land from the spread of deserts, while the warming weather is melting the glacier and snow pack on top of Mount Kilimanjaro, seriously reducing the water supply for an entire ecosystem. The same is a major threat elsewhere, including for indigenous people in several places in South America. Drying weather, is presenting other problems as well. Across the United States west, fire seasons have become longer and more severe. Several tribes in Southern California received extensive damage from wild fire in the fall of 2003, including at San Pasqual, where the entire reservation burned, destroying 67 of 68 houses and killing at least two people,2 while the White Mountain Apache nation lost half of the timber, which is their largest source of income, in a fire, that burned 469,000 acres, in the summer of 2002, causing 70 sawmill and forestry workers to lose their jobs.3 In addition, the fire destroyed lands in which non-Indians pay a considerable amount to hunt. Reduced rainfall, combined with increasing overuse and pollution of existing water, threatens agriculture in much of the western, and parts of the mid-western U.S. This summer, for the first time in history, the Bad River Band of Lake Superior Chippewa were forced to cancel their entire wild rice crop, because of low water (as is discussed above). At this writing, on October 24, a series of fires is burning across seven counties in Southern California, burning thousands houses. threatening several major towns, forcing the evacuation of more than half a million people. More than 26000 acres of land were scorched on the Yuina, Rincon, La Jolla, San Pasqual, Pala, Capitan Grande, Mesa Grande, Santa Ysabel, Barona, Jamul and Inaja-Cosmit reservations, destroying over 100 homes and much infrastructure, while other lands, structures and people remain threatened.4 The fastest warming and greatest shift in climate is in the arctic regions, with significant impacts on Indigenous peoples. In Alaska,5 rising sea levels and melting sea ice, glaciers and tundra have greatly increased flooding, to the extent that a 2003 Government Accounting Office Report found that more than 86% of the 213 Alaska Native Villages had experienced recent flooding, The flooding is worsening, and many of these villages will have to move or be abandoned. At the same time, the subsistence living carried out by many Native Alaskans is becoming increasingly more difficult, and is threatened. Warming climate is destroying the habitat for some plants and animals, while providing opportunities for others to move north, often further impacting habitats, occasionally in ways that are helpful to Indigenous people, but mostly which make Native life more difficult. A number of major mammalian species are seriously declining and may become virtually extinct, including walrus, some species of seals and polar bears. Migration routes and ranges of some animals are being afected. In Northwest Alaska, for instance, westward movement of Western Arctic Caribou has been crowding out reindeer from their usual territory. As a result, by 2001, eight of the 15 Native reindeer herders on the Seward Peninsula had been driven out of business. In addition, travel, including in the process of hunting and gathering, is becoming more dangerous, as exemplified by declining sea ice making the violent impact of storms more imminent, while thinning costal ice is becoming more hazardous, or simply less available for hunting, fishing and travel. This not only increases risk, but also the time and cost of food accumulating activities, whether for consumption or sale. As climates and habitats change, the loss of ways of living, and of long important species not only has direct survival and wellbeing effects, it also undermines important aspects of traditional cultures. For Hopi and other Pueblo Indians in the Southwest, farming, and the cycles of seasons and crops have been at the center of their ceremonies, spirituality and way of being since the most ancient times.6 When drought made their homes in such places as Chaco canyon and Mesa Verde unlivable, between 1100 and 1400, they moved to more favorable locations, including to a number of places where Pueblos are now located along the Rio Grande, where traditional life and culture could continue with some adaptation. Today such a migration would not be possible, so that loss of traditional livelihood would cause a major increase in the movement of pueblo people from their homes for jobs at more distant places, while a few might remain at home making a living in non-traditional ways – assuming that climate change does not become so severe as to create a catastrophe well beyond this scenario. A similar situation is developing in the Pacific North West, where salmon have been central to the livelihood and culture of a number of Indian peoples.7 Several aspects of climate change have been exasperating a serious decline in salmon from a variety of causes, including damming of rivers, pollution, urban development and over fishing. First, reduced snow pack and earlier spring melting, contributing to higher winter and lower summer stream flows have changed the hydrologic cycle, negatively impacting salmon reproduction. At the same time, the rising ocean has increased shore erosion, damaging costal habitat, while the timing and extent of fresh water mixing with ocean water in estuaries and along the cost also is degrading salmon costal habitat, even as rising temperatures bring new predators of salmon to the area, and there is the possibility that with warmer temperatures, the salmon may move away, to more northern areas. The overuse of resources, often exacerbated by, and sometimes causing activity exacerbating, climate change, is also impacting Indigenous people. This has already been referred to, briefly, concerning using up (and polluting) of increasingly scarce usable water, which is a world wide problem, and of over fishing of salmon, contributing to their decline and endangerment – a serious problem around the planet concerning many species, being worsened by global warming. The most serious problem is the increasing world wide demand for energy, and the consuming of declining petroleum reserves, with oil more difficult and expensive to find, extract and transport. The expanding use of oil and other fossil fuels is the primary cause of global warming. The peaking of readily available oil (and to a lesser extent, natural gas) is having a secondary effect that is negatively impacting many peoples, but especially the indigenous. One aspect of this problem (reported in the last two issues of IPJ) has been a huge movement, particularly in the Americas, to produce biofuel, most often ethanol from corn, as a substitute (usually as an additive) for gasoline. First, this has raised the price of food, and particularly corn, an economic hardship on low income people, often including Native people. In Mexico this has manifested in the unprecedented rise in the price of the tortilla, a staple for those less well off, including most tribal people (though it has brought more income to many Indigenous and other small farmers, who had difficulty selling their corn in the face of subsidized competition from the U.S. after the institution of NAFTA). Second, particularly in Columbia, the rush to grow biofuel crops has brought about huge land grabs by wealthy interests, forcing many people off their lands, most notably persons of African descent, but increasingly Indigenous people as well. In addition, as the quest for more farm land to produce energy brings deforestation, so it increases climate change, as carbon dioxide absorbing trees are cut down, while the burning of ethanol and similar biofuels adds to the production of green house gasses. The one climate change mitigating result of the growing world energy crises, is that it is encouraging the development of non-greenhouse gas emitting, alternative energy, in which tribal people are involved. Over all, Rodolfo Stavenhagen, UN Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples, summed up the situation in reporting to the UN Third Committee (Social, Humanitarian and Cultural), October 22, that global warming and increasing exploitation of natural resources, continue to bring about the dispossessing of Indigenous peoples’ ancestral lands, to the point that some small isolated communities are at risk of physically disappearing, in spite of recent progress in recognizing the rights of Indigenous people. Stavenhagen said that "Extractive activities, large commercial plantations and non-sustainable consumption patterns have led to widespread pollution and environmental degradation." The end result, he said, was that indigenous peoples, whose lives were closely linked to their lands, were dramatically affected by such trends, which had in turn led to their forced displacements. The Special Rapporteur stated that the shrinking of Indigenous territory has been intensified by the dynamics of the globalized economy and its attendant increase in water and energy exploitation.8 One of the major responses to global warming and the increasing energy crunch by tribes in the United States has been developing wind, photovoltaic and other forms of energy that do not contribute to global warming. The Intertribal Council on Utility Policy, an organization composed of federally recognized Indian tribes in the northern Great Plains, has been among those organizations supporting the growth of wind powered electric generation that has been developing among a number of Great Plains Tribes over the last few years.9 The Council was recognized at the Faktor 4-Festival in Basel, Switzerland, June 15 with a Special Award for its work assisting the establishment of the first commercial wind power generation on any reservation, with the 750-kilowatt turbine on the Rosebud Reservation, in South Dakota. The Three Affiliated Tribes, of Montana, began operating their first wind turbine on the Fort Berthold Reservation in the spring of 2006. The Morongo Band of Mission Indians are constructing a wind generation station to meet their own and surrounding community power needs,10 The Navajo Nation has included wind power in its energy development program, though there is controversy over its plan to also build a new coal fired electric generation plant, even though it will be much less polluting of the air (but not in terms of carbon dioxide production) than older coal generating facilities (see On Going Activities Above). The Hopi Nation is going ahead with both wind and photovoltaic electric power generation. Honor the Earth, in coordination with Solar Energy International, the Western Shoshone Defense Project, American Spirit Productions and the Battle Mountain Band of Te-Moak Western Shoshone provided free training and installation of a solar photovoltaic system in Western Shoshone territory near Elko, Nevada in April, 2005.11 Laguna Pueblo designer Dave Melton and Sacred Power Corporation of Albuquerque, of which he is co-owner, had brought electricity to 30 isolated homes on the Navajo Reservation in New Mexico, using wind turbines and photovoltaic cells, as of June 2005.12 Some tribes have been working to capture methane (a potent greenhouse gas, if allowed to escape into the air) from land fills, to use as fuel. A number of U.S. tribes are taking advantage of carbon credits, the planting of trees which absorb carbon dioxide, to offset the production of the greenhouse gas in power production and industry.13 The first to do so was the Confederated Tribes of the Coleville Reservation in Washington, 1990, who were paid by area power companies reforest some of their land, Others include the Nez Perce Nation of Idaho, who reforested land cleared for farming in the Nineteenth Century, that was no longer used for agriculture, and the Lummi Tribe in Washington, who bought 1700 acres of logged land to replant with trees, selling the carbon credits to a power company. A number of Indigenous nations are undertaking research on how best to act in the face of climate change. For example, Ealat, the Reindeer Herders’ Vulnerability Network of Indigenous people in Norway, in collaboration with the Association of World Reindeer Herders, is undertaking a Study, Reindeer Pastoralism in a Changing Climate, to determine the ability of this ancient herding way of living to adapt to climate change, and to propose policy to government and the private sector that will increase the viability of Reindeer herding in the face of climate change.14 The Arctic Council is a high-level forum for cooperation, coordination and interaction between Arctic states, indigenous communities and other Arctic residents, focusing on some of the key challenges facing the Arctic region, particularly the need for integrated resource management to meet climate change.15 This includes abroad spectrum of research and policy proposal undertakings. Tribal colleges in the United States have also been engagedin research into how their nations can respond to climate change, in some cases in a partnership with the U.S. Geological Survey created organization, Native View, while including study of the changing environment in their curricula – integrating traditional and western scientific knowledge – and doing what they can, with limited budgets, to make their campuses green, from recycling, to improving energy efficiency and reducing pollution.16 Meanwhile (as reported above), Northwest Indian College now offers a Bachelor of Science in Native Environmental Science. Collectively, Indigenous people are beginning to take action on climate change and other environmental issues. As reported above, The United League of Indigenous Nations was formed at the July 31 - August 2 Indigenous Treaty Gathering at Lummi Nation in Washington state to deal with the environment and other issues. Lummi Nation Chief Jaret Cardinal, proposing approving the treaty, commented The time is right for the indigenous tribes to stand together to help combat the problems of global warming. The significance of this treaty is that we are being given the opportunity to do something. [...] Time is something we have little of if we are going to address the environment. If we are to truly have a strong voice, then we need to have global economies where international trade is required.'' A number of other Indigenous nations in the U.S. and elsewhere are taking similar steps to lesson climate change. However, as the vast proportion of actions causing global warming and other environmental degradation is being caused by non-indigenous governments, their policies and private corporations, there is only a very small amount that Native peoples, governments and organizations can do directly to slow and limit climate change and other environmental damage. Perhaps the most important contribution that native people can make is by sharing Indigenous ways of thinking, so that well meaning actions do not end up making the situation worse, or creating new difficulties. All traditional Indigenous people consider themselves to be part of nature, with a responsibility to keep it in balance, both for their own good, and that of all other beings. From experience they understand the necessity of taking into account the short and long term effects of actions, being aware of the full set of relationships that are involved in all human activity. If the world’s leading public and private policy makers of the last two centuries had been Indigenous thinkers, climate change would not be a major world crises, today. The key learnings from Indigenous thinking for the world in dealing with climate change are that everything is connected, but each location is unique.17 Actions and events have developing consequences over time, so that in making decisions, it is necessary to take into account the full range of relationships that are involved, considering how they will be affected over an unfolding, and lengthy, period of time. Western science has long focused on taking things apart, and reducing consideration of phenomena to focus on a limited number of factors, in order to isolate essential forces or rules. This approach has great power, but its reductionism tends to miss the interconnections that contemporary ecology, the cutting edge of physics, and developing chaos or complexity theory are beginning to demonstrate to the West, are the true nature of the world. It is an exceedingly complex, interactive system. Climate change and other ecological issues are essentially issues of how we use resources (broadly defined to include energy and matter, that which is animate and inanimate), including the chains of direct and indirect effects of finding, acquiring, transporting, processing, and applying those resources and disposing of (or allowing to disperse) the byproducts of that use. This requires analyzing holistically, in terms of complex systems with interacting subsystems, so that decisions are made in the course of examining the full range of relationships and interactions involved, over time. It involves understanding that every action has a wide range of effects that need to be taken into account. This means not only examining all of the physical aspects of an ecological problem over time, but the full range of human concerns as well: social, cultural, economic, political,.., in order to develop an appropriate balanced set of actions across time. Another tendency of traditional western science and thought has been to develop general conclusions, and to apply them universally, often without thinking through how they properly apply in different circumstances. This has caused untold problems.18 For example business or technical consultants often take a program that worked well in one place, or a set of similar sites, and “can it”, simply presenting the program in other locales without first assessing the conditions and needs of that location. When those conditions and needs are different from what the presenter assumed, the program does not work. This is an especially serious problem in making cross-cultural transfers. For example, several years ago agricultural scientists developed a new variety of cotton that was more hardy and produced more cotton per plant than traditional varieties. They took it to villagers in one location in India, without asking what the local people used the cotton plants for. Most of the villagers decided to try the new cotton. But when the scientists returned five years later, they found only a small amount of the cotton being grown was the new variety. The reason was that the villagers used the plant both to produce cotton, and for fuel by burning the stalks. Th |