Justice for Natives: Searching for Common Ground

by Andrea P. Morrison (Editor )

The collection follows a cycle of remembering the past, learning from the present, and planning for the future. In the first section of the book, "Conflict, Self-Determination, and Native Peoples," contributors, including Mohawk activist Ken Deer, Judge Rejean Paul, and scholar Brian Slattery, look at the historical roots of the conflict between Native and non-Native people, problems in the current justice system, and the movement for Native self-determination. In the second section, "Lessons from Oka," Native leaders Elijah Harper, Matthew Coon-Come, and Diom Romeo Saganash respond to the crisis at Oka and scholars Bruce Clark and Robert Venables consider constitutional alternatives and compare Canadian policy with that in the United States. Looking into the future, the final section, "Justice for Natives?" offers practical alternatives for improving relations, reviews actual measures being taken, and proposes models for change. Some of the solutions raised include increased recognition of Crown fiduciary duties to Native people, co-management strategies for land use, and an independent Native judiciary as envisioned by scholar Leroy Little Bear of Saskatchewan. Justice for Natives makes an important contribution to Native, legal, and policy studies in Canada.

352 pages, Hardcover

First published January 1, 1994

Reviews

[Josh]

A tremendously important book, with perspectives from legal practitioners that are either indigenous representatives, allies of indigenous people, or other 'concerned parties', throughout Canada. I would highly recommend reading this alongside The Colonial Problem: An Indigenous Perspective on Crime and Injustice in Canada, which gives a more cohesive historical and legal context and up-to-date review of the topic. Also note that some of the essays are in French, which may not be evident from a quick glance at the book.

Aside from obvious failures of the Canadian legal justice system, which is exemplified through the disproportional rates of indigenous peoples being detained and otherwise adjacent to the criminal justice system, or through individuals removed from their communities and detained in jails where they do not speak the same language as anyone else, there are some much more insidious and tricky problems rooting from the colonial problem, that do not rightly have any easy answers. Whereas honest efforts in good faith can be made to address some of these problems from within the legal practice, they are ultimately insufficient for these reasons.

I will be expanding on these reasons below, but for now this is just a draft!

1. Cultural contexts which supported pre-colonial legal justice systems are no longer in place. This presents several problems: the more 'fixable' one is perhaps that contemporary settlers (and often indigenous peoples themselves) are not familiar with these systems, and thus require education if we are to

2. Alternative justice systems cannot fit into the sleeve of the existing Canadian justice system. However, the relationship between Aboriginal justice and Canadian justice systems is ultimately unclear: Brian Slattery makes the case that, as the Canadian federal government is unwilling to budge toward the possibility that Aboriginal justice could exist wholly independently of Canadian justice; and since the alternatives (basing both systems in international law, or even more ambiguously in 'natural law') are equally problematic, we ought to look at the history of relationships between Aboriginal peoples and European settlers, particularly up until the time of the Royal Proclamation of 1763, to understand how a body of justice could co-exist between many peoples.

3. Institutions in Canada are only beginning to come around to understanding the notion of intergenerational trauma, systemic racism, and risk factors. Will the Canadian legal system (for example) eventually adapt to be more introspective / cognizant of its own systemic biases and to try to self-correct?

4. The history of treaties and land claims is messy enough for the average citizen to require extensive education, and enough promises have been broken that a strong case can be made that reconciliation in this vein is no longer possible. Moreover, there are some fundamental uncertainties from the Canadian perspective regarding Aboriginal Title and Aboriginal Rights. (reference here Jean-Paul Lacasse as well as René Morin!) There have been many heinous decisions and injustices rendered from the Canadian court system (e.g. Mary Laronde's speaks to this in her description of the Teme-Augama Anishnabay's fight for claiming their homeland), and so it can be hard to accept the Canadian position 'in good faith', since they have broken promises, signed treaties made under duress, and misrepresented the state of affairs of communal law and justice predating their colonization (even including the state of affairs during French colonization, a point made well by Brian Slattery).

5. What does self-determination mean in practice; who are considered "peoples"; and how can international human rights be reconciled in such a messy situation? There are problematic (irreconcilable?) differences and conflicts between the claimed territory, jurisdiction, and justice systems of nearby indigenous groups. This is a complicated question in international law. As Weaver argues, there is considerable secrecy and sequestering of information amongst First Nations, to the extent that the only group that might have a holistic understanding (but probably not due to ineptitude) would be the federal government.

Ken Deer argues that the Iroquois Confederacy "has no desire to separate from Canada, but we have never been part of Canada either," and that "as nations, we are subjects of international law, not Canadian or American Law," i.e. from the Great Law of Peace (an oral constitution which is one of the oldest in the world). He details the structure of the ILO (International Labour Organization), which is the "only international forum where governments share power with anybody else," yet indigenous peoples have no seat at the table, except as token representatives who no one is obliged to listen to—in fact, Canada supported the removal of the word 'consent' in favour of 'consultation,' and furthermore even tried to define 'consultation' in such a way to ignore the objective of consent! Deer tried to register as a government (the Mohawk Nation, or as part of the Iroquois Confederacy) during an ILO convention, and though they were refused registration, he still managed to effectively sneak in to all of the meetings. In short, Deer sees the ILO Constitution as justifying the 'rape and pillage of our land,' despite the fact that it purports to protect them. It requires that Canada comply with their treaties, but Canada "has already said at the UN Commission on Human Rights in 1998, that Canada does not have treaties with Indians, it only has agreements in the form of treaties." Later, Deer speaks to the importance of self-assertion: self-determination is asserted, not granted, and if we continue to act as though the federal government is all-powerful, then little progress will be made.

Simon McInnes, after decrying how confusing the Indian Act is (not least of which the fact that what is written is not the only factor in interpreting it) describes the federal government's system in place for self governments. Though this is now entirely outdated (owing to the dissolution of the relevant instutitions), McInnes describes the Department of Indian Affairs and Northern Development (DIAND)'s arrangement which allows, when requested by an Aboriginal band, the enactment of legislation which effectively removes the band from the governance of the Indian Act. At the time there were 10 bands under this system, including Sechelt Band in BC, 8 Cree Bands, and a Naskapi Band in Northern Quebec. Besides those, there are also bands (such as Six Nations or Kahnawake) which are Indian Act bands, but are self-sufficient and "run their own affairs very successfully without DIAND." Legislation passed must be fully in accordance with provincial and federal law, though, and even framed within the context of the Canadian Constitution, which is to say that this is useless for bands who are looking for bona fide self determination.

Sally Weaver synthesizes much of the confusion related to the legal status of First Nations people in a simple analysis of 3 paradigms:
1. Indian Act / Department of Indian Affairs / Control of Aboriginal People under Section 91(24) of the Constitution — "historic paradigm based on a policy of assimilation"
2. White Paper (1969) — Assimilation paradigm
3. Self-government — Weaver argues that any efforts toward self-government (up until 1989) have not produced any meaningful change. Here are some reason:
- Weaver argues that Section 32 of the 1982 Constitution Act (which purports to recognize and affirm existing Aboriginal and treaty rights) does not establish rights de facto, only some political leverage
- self-government initiatives have focused primarily on services, but this is only one part
- Weaver argues with McInnes' position that Canada has a clear policy regarding self-governance, and further that it has altogether been a failure so far
- the federal government basically just treats bands as municipalities, with little-to-no capacity for real First Nations' notions of government
- no progress in financial arrangements (more recent arguments from The Colonial Problem indeed show little progress here; if anything, recent initiatives have been closer to debt entrapment than anything else)
- the Sechelt model of 'self-governance' through DIAND is basically just an acceptance of assimilation
- the Indian Act is such a clusterfuck that most First Nations do not understand their rights or what legal apparatus are available to them, and so "self-government" may not even be in their best interests
- there is not a cohesive integration between comprehensive land claims and self-governance [I did not really understand this point]
- developmental training programs that exist for building self-governance in developing countries does not seem to exist in the Canadian context

Bruce Clark makes a very simple but compelling argument, in counterpoint to Brian Slattery's argument that we ought to "replace the Imperial model of the Constitution with one grounded in Canadian history and experience," that in fact the 'Imperial model' is our best bet at improving the status quo for native justice. Clark's argument prompted me to read the Royal Proclamation of 1763, which was only 3 pages(!), and which makes it so abundantly clear that—with the exception of the colonial governments of Quebec, East Florida, West Florida, and Grenada—all subjects of the crown have no right whatsoever to disturb or claim for themselves any lands belonging to the Native peoples. Indeed, I cannot speak from a legal perspective, but as a layperson it could not be more clear that this proclamation has been ignored and the promises therein broken time and time again by the Canadian and provincial governments. I find it so distressing and almost dystopian that Canadian students are not routinely taught this. Clark also essentially smacks down a lawyer who is insinuating that Aboriginal lands were not respected because they were not demarcated, i.e. there was not a fence: Clark retorts with the fact that the Royal Proclamation assumes that all land not purchased from the Indians belongs to the Indians. (Later on, Kahnawake Mohawk Chief Joe Norton retorts that "putting up fences" is just what the Mohawks tried during the Oka crisis, and in response the Canadian government sent the army in to take them down.) If nothing else, Clark is a fascinating character, and is worth a read on Wikipedia: https://en.wikipedia.org/wiki/Bruce_A...

Lawrence Courtoreille—then Vice-Chief of the Assembly of First Nations—calls out Clark for not being the "Indian expert", and argues that the Canadian governmental policies have consistently ignored the law, and even when Aboriginal rights and treaties have been defended in court, they have not been enforced or heeded. Even with all the legal victories in the world, without the government being held accountable to its actions and policies, it means nothing.

Robert Venables offers a very interesting and useful perspective from American Indians, with the very simple thesis that "Any policy designed by non-Indians has only served non-Indians," and he offers some horrific cases of exploitation by the institutions and laws of the USA.

Oren Lyons' speech is beautifully-spoken, and without doing any justice to it I'd summarize it as understanding necessity of aligning one's economic system to the laws of the universe - otherwise they are not sustainable into the future. "When we speak of sovereignty, we have to have a large conceptualization of what it is we are talking about. With Indian Nations, it is not just a political term, it is also a spiritual term. It may be even be more spiritual than political. One of our people once said that spirituality is the highest form of politics." Later, a member of the community questions Lyons for working in white institutions, to which Lyons retorts: "What I do in this system is talk to Indians whenever they come in. I talk to them about a lot of things. In fact, our system at the University of Buffalo is that you have to go back into your community and do a project that is going to help the community itself in order to do our masters program. That drives the youth back into the community. Further, I teach American history to white people. They need to know the same history."

Matthew Coon-Come builds on Courtoreille and Venables' arguments that, in short, "enough is enough" - Canadians have repeatedly broken treaty promises time and time again. He says that there is fear that legitimizing autonomic rule in Native communities would 'constitute a third order of government', but that is a deluded fear which misses the fact that 'the Indians already are a third order of government, but that the the government under which the Indians live is a dictatorship.' During the discussion, Coon-Come derides the idea of "sovereignty": this is not a Native word, and Native communities care about concrete things like the right to education, to health, to "manage and be master of our own destiny," and that legal fights for "sovereignty" are not achieving this, so what use is the word? "[The Cree] do have one word. That word, when it is translated, is 'care.' Care fot the land, care for the people, care for morals and values which this society does not have."

Peter W. Hutchins and Mark Stevenson each provide similar perspectives on where Canadian law has taken us thus far, and prompt us to take a bigger-picture view of legal developments to see that progress is actually being made. These do feel a bit underwhelming in light of the previous discussions, but they are optimistic and provide a useful context.