MARY JANIGAN March 16 1992



MARY JANIGAN March 16 1992




In the eyes of Canada's political and religious leaders, it was done as such deeds were usually done-for the natives' own good. In 1884, at the urging of Christian missionaries and their native converts, the federal government amended the Indian Act to ban the potlatch festival. With the stroke of a

pen in Ottawa, it became illegal for natives along the northwest coast of British Columbia to hold traditional celebrations heralding the investiture of chiefs, honoring the dead and marking other great events such as highranking marriages. To the natives, the potlatch was a pivotal community gathering at which hosts reaffirmed their status by freely distributing property and native slaves among their guests.

But to the more powerful missionaries, the potlatch represented a pagan way of life that threatened the established order. By 1951, when Parliament finally lifted the ban, the era of the great potlatches had long ended—and the tribal communities had fragmented. But as Canadians debate their country’s future, the bitter memories of such experiences have returned with a vengeance.

Charged a recent Assembly of First Nations discussion paper on the Constitution:

“The legacy of the Indian Act continues to this day.”

Across the country, in

court battles, in land-claims negotiations and at the constitutional table, natives are asserting their right to substantial swaths of resourcerich land—and their inherent right to govern that land. The natives’ claims draw their authority from the past, stretching from their millennia-long occupancy of the land to 19thcentury treaties, once-forgotten colonial laws and the Supreme Court of Canada’s emerging definition of existing aboriginal and treaty rights. Politicians can no longer ignore those

claims: in June, 1990, Cree legislator Elijah Harper effectively killed the Meech Lake constitutional accord when he blocked its introduction in the Manitoba legislature because it failed to address native demands. Harper argued that the accord recognized Quebec’s place in Canada, but that it ignored native

rights and contributions. Partly as a result, many Canadians began to take another hard look at their nation’s troubled history. Says University of Saskatchewan law professor Donna Greschner: “Non-aboriginal Canadians cannot pretend that the past does not exist. If non-aboriginal Canadians truly believe in justice for aboriginal peoples, we must face up to our responsibility for the profoundly racist policies of the past—and for their continuing legacy.”

The potlatch experience itself epitomized the history of deteriorating relations between Canada’s natives and their European “discoverers.” Initial encounters between the two groups were usually respectful: from the 16th to the 18th century, natives were valued trading partners and skilled military allies. But that relationship degenerated after the War of 1812 as the immigrant population swelled and the number of external threats to Canadian sovereignty dwindled. As a minority in their own lands, the natives rapidly lost power. Governments set out to minimize their land base and to force their assimilation. Once-proud peoples limped through much of the 20th century, impoverished, disorganized, dispirited, embittered—and feebly asserting their rights. In the late 1960s, when Ottawa tried to abolish Indian status altogether out of concern that it was a barrier to prosperity and full citizenship, native leaders united in outraged protest. “For generations,” former Assembly of First Nations national chief Georges Erasmus charged in the 1989 book Drumbeat, “Canadian governments

treated us as a disappearing race and administered us accordingly.”

The origins of Canada’s diverse native peoples remain the subject of intense archeological research. Because scholars have found no fossil evidence of pre-modem human skeletons in the Americas, they have concluded that natives migrated to the Western Hemisphere from elsewhere. Most scholars believe that they first streamed into North America from Asia between 12,000 and 30,000 years ago, trudg-

ing across a strip of land that once joined the two continents at what is now the Bering Strait. By the 16th century, an estimated 350,000 natives roamed most of Canada’s landmass. To European explorers, desperately seeking the wealth of the fabled Indies, they were simply “Indians.” Those Indians comprised more than 50 different peoples; their languages formed 11 vastly different families.

Contacts: For several centuries, the Europeans and their Indian hosts forged a mutually satisfactory relationship. The first contacts were probably between fishermen from Spain,

France and England and coastal peoples like the Micmac. When navigator Jacques Cartier sailed along the Gaspé Peninsula in 1534, the natives along the shore were already familiar with trading practices: they held up furs on sticks and hid the women in the woods. By the midnth century, a complicated pattern of commercial relations had evolved. The Europeans fished, traded for furs, sought passage to the legendary East with native guides and brought missionaries to preach Christianity. The natives, in turn, exchanged furs for iron kettles and knives, glass beads, alcohol and, eventually, muskets. The French dealt mainly with the Montagnais in the valley of the St. Lawrence River and the Huron of southern Ontario. The English developed a trading network with the Iroquois Confederacy, southeast of the Great Lakes.

Those alliances grew in importance throughout the 18th century as European conflicts spilled across the continent. From 1689 to 1760, France and its native allies waged intermittent war with Britain and its aboriginal allies. When Britain finally conquered France’s rich colony of Quebec, it took action to secure the loyalty of the aboriginal peoples. The Royal Proclamation of 1763 reserved rich interior lands around the Great Lakes and throughout the central United States for the Indians. Thirteen years later, most natives sided with the British in the American War of Independence—hoping to protect their homes from land-hungry occupants of the Thirteen Colonies. When the revolution succeeded, Britain encouraged its dispossessed Iroquois supporters to settle in southern Ontario. Almost 30 years later, during the War of 1812, natives like the Shawnee Tecumseh and the Ottawa war chief Blackbird were again valued British allies against U.S. forces.

But peace brought ruin for many native communities. After the War of 1812, the military threat to Canada from the United States and abroad subsided. Lured by the prospect of a prosperous new land, immigrants flooded to Upper and Lower Canada from the British Isles: from 1814 to 1851, the population of Upper Canada skyrocketed to 952,000 from 95,000. The aboriginals were no longer useful, either militarily or economically. They were, in

fact, in the way. As University of Saskatchewan historian James Miller noted in his 1989 book, Skyscrapers Hide the Heavens, “The response by Euro-Canadians was to mount numerous and extensive programs to assimilate the Indian. As the Indian moved from alliance to irrelevance, the European responded with a change of attitude from eager gratitude to pity and contempt. Co-operation was giving way to coercion.”

For the next 150 years, coercion came cloaked in a succession of patronizing laws. In 1857, in an effort to convince Indians to abandon their status, the then-Province of Canada offered the vote and 20 hectares of land to those who were educated, debt-free and of

good moral character. (By 1920, only 250 Indians had accepted.) In 1869, federal bureaucrats were empowered to depose traditional Indian leaders for “dishonesty, intemperance or immorality.” That same statute stipulated that Indian women who married non-Indians lost their status. In the following decades, federal bureaucrats arbitrarily replaced traditional leaders with elected band councils; western Indians needed an Indian agent’s permit to

sell their agricultural produce; western natives could not leave their reserves or wear aboriginal costumes off their reserves without a permit. In 1927, the federal government even amended the Indian Act to outlaw the pursuit of land claims: that prohibition remained on the books until 1951.

In many cases, the government’s repressive approach clearly worked against its own goal of assimilation. Under the terms of the first Indian Act, which took effect in 1876, Indians lost their status if they became doctors, lawyers or ministers; the price of education was the loss of traditional identity. In 1894, western Indians were compelled to enrol their children in schools run by missionaries; the price of basic learning was a childhood away from their families in an often abusive and disease-ridden environment. Finally, because the Royal Proclamation of 1763 stipulated that Indians could cede title to their lands only to the Crown, Indians could not mortgage their reserve lands to obtain capital for economic projects. For many, the price of community living was often poverty.

Treaties: At the same time, non-natives took far more interest in Indian lands than in their inhabitants. After 1700, British and Canadi-

an authorities signed more than 500 separate treaties with aboriginal peoples. Early agreements, largely in the Maritimes and Quebec, pledged peace and friendship—and confirmed the aboriginals’ right to hunt and fish. In later treaties, the natives surrendered title to land. Between 1814 and 1829, in seven treaties, aboriginals ceded vast tracts of southern Ontario for small annual payments. In 1850, the Ojibwa surrendered much of Northern Ontario for reserves, lump-sum payments, the right to hunt and fish over their former lands—and annuities of $4 per person, which Ottawa still pays. In the early 1850s, the colony of Vancouver Island negotiated 14 separate Indian treaties to obtain title to the land in exchange for

modest lump-sum payments to native bands.

Canada’s natives received little benefit from Confederation. The Constitution Act of 1867 observed that “Indians and lands reserved for the Indians” were under the exclusive jurisdiction of the federal government. With that power, through 11 so-called numbered treaties between 1871 and 1921, Ottawa negotiated title to vast swaths of the West in exchange for reserves, gifts such as medicine chests, and annual payments to the natives. Still, landcession treaties did not cover the Maritimes, northern Quebec, most of British Columbia and the Arctic. The reasons for that neglect were varied, ranging from lack of funds to carelessness to the simple assumption that legislatures had unilaterally taken title to the long-settled parts of the country. Meanwhile, through bureaucratic inefficiency and outright swindles, the Métis—the descendants of European fur traders and Indian women— lost many of their traditional western tracts to European newcomers.

Without power or land, riven by disease and poverty,

Canada’s aboriginals were slow to rediscover their pride. The modem native movement emerged in 1969, when the Liberal government of Pierre Trudeau unveiled proposals to abrogate the treaties, repeal the Indian Act and transfer responsibility for Indian programs to the provinces. The government’s proposals also dismissed the concept of “aboriginal rights,” countering that continuing Indian claims to the land were “so general and undefined that it is not realistic to think of them as specific claims capable of remedy.”

Natives reacted with fury.

Their fledgling national organizations united in a powerful lobby group. As Donald Purich, the director of the University of Saskatchewan’s Native Law Centre, observed in his 1986 book, Our Land, “National and provincial Indian organizations suddenly gained a new life. They had gained a cause—their very existence as Indians.” In June, 1970, a chastened Tmdeau dropped the proposals.

Convoluted: Still, it took a convoluted court battle to shift the balance of power between Ottawa and the natives. In 1973, the Nishgas of British Columbia argued before a seven-member panel of the Supreme Court of Canada that they still held title to their land—because they had never signed a treaty surrendering it. In an extraordinary decision, three justices agreed with the Nishgas; another three justices conceded that aboriginal title once existed—but they ruled that the British Columbia government had extinguished the Nishgas’ title; a

seventh judge rejected the case on a technicality. Although the Nishgas lost their case, they scored an important legal point: mere recognition of the existence of “aboriginal title” raised concern among federal politicians because it implied that Canada’s increasingly activist native peoples clearly possessed undefined rights as aboriginals.

In the wake of the Nishga case, federal officials began to negotiate comprehensive claims to land that had never been ceded in treaties. The process, however, has been a slow one. So far, there have been three settlements in northern Quebec and the western Arctic, as well as unratified agreements in the eastern Arctic and Yukon. More than 30 comprehensive claims, including the Nishgas’, re-

main unsettled. In addition, Ottawa has dealt with 86 specific complaints about treaty violations since 1982; over 500 claims remain unresolved.

Two decades after the Nishga case, the concept of aboriginal rights remains the focus of fierce constitutional debate, in the courts and in land-claims negotiations. Until Ottawa and the provinces amended the Constitution in 1982, Indian treaties were accorded the status of contracts by the courts. As a result, Parliament had the right to pass laws that regulated or extinguished treaty rights—but federal law shielded those rights from provincial interference. On non-treaty territory, the courts have recognized that aboriginal rights—such as the right to hunt and fish—could still exist. But the courts have also ruled that, before 1982, Parliament was legally empowered to extinguish those rights—and provincial legisla-

tures could, at the very least, regulate them.

In 1982, after a massive aboriginal pressure campaign, Canada entrenched the recognition of “existing aboriginal and treaty rights” in the Constitution. During the latest round of constitutional talks, natives have argued that those entitlements include the inherent right to selfgovernment—and they have demanded its explicit entrenchment in the Constitution. Meanwhile, the courts have tentatively entered that complicated maze. In 1990, in the so-called Sparrow case, the Supreme Court ruled that the Musqueam Nation of British Columbia retained an aboriginal right to fish because governments had never extinguished that right. The court added that any attempt to extinguish rights must be “clear and plain.”

Observed University of Toronto law professor Patrick Macklem: “In the Sparrow case, the Supreme Court stated that aboriginal rights include those rights that protect activity that is essential to an aboriginal community’s selfdefinition. Does that include self-government? Does that include aboriginal jurisdiction over areas such as criminal justice or child welfare? And what constitutes ‘clear and plain’ extinguishment of those rights?”

Ultimately, the answer to those legal and constitutional questions lies in history—in ancient traditions, crumbling treaties and the saga of conflicting civilizations. Perhaps natives and non-natives can only forge permanent modem treaties when, together, they reach a more complete understanding of their turbulent past.