In my First Nations and Self-Government class, we are required to write papers on different ways in which individual nations have asserted their self-government. I was fortunate to be assigned the Metis. The structure of the paper was, in my opinion, quite restrictive in that we weren't given a lot of freedom to really explore the topic. Rather, we were asked to write about certain specific pieces of legislation, how their principles were reflected in the acts of our respective nations, and the governance structure of the nation.

I ended up finding a lot of information that wasn't within the bounds of my paper for that class, so I figured I would spend some time writing about what I couldn't say in the paper in this blog.

The Metis is a really interesting group of people. I should know, since I am Metis.

I went to a talk presented by Dr. Frank Tough and Clem Chartier at the First Nations House of Learning last year. The topic centered around the scrip fraud that took place during the 1800s in Manitoba. Essentially, Dr. Tough and Clem had traced the historical documents pertaining to scrip allocation and determined that there existed at the time a vast government conspiracy to defraud the Metis of their land and cash payments in lieu of land. Many of the individuals who were supposed to receive land tracts elsewhere in Canada, were actually fooled out of their land. And the government turned a blind eye to it.

As a result, the Metis people are without a land base in Canada. The exception to this rule is the Alberta Settlement Metis, a population of approximately 6500. These individuals managed to negotiate and petition the Alberta government for their own land base. The lobbying efforts of Metis leaders actually led to the establishment of a government commission to look into the situation of the Metis living in Alberta. The commission recommended the settlements, and they were formed.

What is interesting is the fact that one of the settlements was actually established in the small town in which my mother was born and raised, Cold Lake, Alberta. While I don't know a great deal about that side of my family's history (in part due to the fact that my grandfather was abandoned and adopted by a Polish family), I do know that there are very few half-breeds living in Cold Lake. Being a half-breed and living in Cold Lake is probably the closest thing to a death sentence that exists in Canada.

My mother would tell me stories about how if the nuns at the local Catholic school learned you were Native, they would punish you endlessly. She remembers a young girl who was assaulted by one such nun. The girl didn't return to school for weeks, and was never the same again. My grandmother, being born and raised in Cold Lake, has adopted a familiar phrase, common among those trying to survive as a half-breed in a segregated world: "There ain't no damn Indian in us!" Sure, Grandma. Sure. To this day, I will remember the racist words of my step-grandfather. They were the last words he would ever speak to me: "They get enough handouts. Treaties and things. Why do you want to do that?"

The Cold Lake Metis Settlement was abolished, ostensibly due to its inability to support a population. Although, I have heard that the real reason for this was political. There are so many mysteries in my mother's family. Her father left the family when my mother was 4 years old, and she never really had much of a relationship with him after that. I wonder if he was a Settlement member? Or if his mother or father was? His adoption certificate states that his mother's reason for giving him up was "that I am a spinster and unmarried." Perhaps he was born of a man who lived on the settlement, and was forced to move after its dissolution. He's dead now. We'll never know.

Interestingly, but completely unrelated, Darlene Johnston is another mixed-race person who grew up in Cold Lake. She, too, has spoken of the racism that prevails in that town.

The Supreme Court of Canada is now going to hear the case of Metis scrip fraud. This is interesting. The arguments have been rejected at both the Supreme Court and Court of Appeal level, for reasons of limitation. I wonder about the time this case is coming to the SCC. If they accept that the limitation period shouldn't apply in these circumstances, that would be wonderful. But I don't think the legal argument will succeed. The current thrust of SCC jurisprudence has been to take away, rather than protect, Aboriginal rights. I recall the NIL/'TU,O case, where the SCC actually said that management of child and family services is not covered in the scope of s.91(24) because it doesn't touch the "core of Indianness." If management of children, the future of a nation and culture, isn't at the core of Indianness, not much else is.

With that in mind, I don't think the SCC is going to make a judgment that adequately considers and protects the Metis-specific issues that cry for a remedy in this case. It's not the right time to bring this case before the SCC, but given the concern over limitation periods, I don't think that the Manitoba Metis Federation would get away with delaying the case until the political bent of the SCC is more attuned to the needs and issues this case presents.

These were all things I wanted to say in my paper. I wish I had that opportunity. But I am glad I can say them here. I think it is very interesting when Indigenous groups that previously didn't have a protected land base fight for one. The issues and attitudes that present themselves are fascinating.

In the last three weeks in Michael Jackson's class, we have been watching videos regarding certain development attempts in Canada and how they have impacted and instigated self-governance attempts on behalf of individual First Nations.

The first film was a documentary that followed the Naskapi First Nation in their fight against Hydro-Quebec regarding a proposed hydroelectric development, known as the Great Whale Project, on traditional Cree, Inuit, and Naskapi territory. The second film was about the Mackenzie Valley Pipeline Inquiry, which looked at the impact of a gas pipeline that was to be run to the Northwest Territory. After viewing these two films, two major thoughts arose for me.

1. The Appeal to Nationalism:
The main thing I noticed that seemed to run as a thread between the two films was the way in which the development corporations and government officials appealed to a sense of national unity in defending their projects. While the James Bay situation was in Quebec, and the Mackenzie Valley issue was centered in the northern territories, the tensions were the same.

The James Bay people made very strong and impassioned arguments about the importance of the development to Quebec's nationhood (this situation took place amid the Quebec separatism movement). They suggested that anyone who called themselves a Quebecer could not possibly be opposed to the project. I recall a clip of one MLA, a woman, stating that if the Naskapi people consider themselves a part of Quebec, then they should stop protesting and should start buying in to the project. Similarly, in the North, a lot of the discussion about the benefits of building the pipeline focused on how it would unite the North with the rest of Canada. Those who were opposed to the construction of the pipeline were said to be opposed to national unity.

As I tweeted at the time, "Why is it that when people are trying to screw over Aboriginal people, they always appeal to nationalism?" And that question got me thinking. It wasn't just when the Mackenzie Valley Pipeline Inqiury was taking place, or when Hydro-Quebec was fighting with the people of James Bay that the question of national unity got in the way of the interests of Aboriginal people. This was something that had been going on for a long time.

In 1969, Jean Cretien, then Minister of Indian and Northern Affairs, published the White Paper on the Statement of the Government of Canada on Indian Policy. In it, Cretien essentially argued that the special treatment of Indians by the Canadian government was an affront to national unity. He rejected the argument that Indians should be involved in a land claims process and instead suggested that our nation required their assimilation into the general population. Of course, this was incredibly offensive to many people and the Red Paper was written in response. Thankfully, Cretien's views didn't catch on beyond the racist mindsets of the majority of today's citizens, and the rights of Aboriginal people to self-government were later affirmed in the Penner Report.

There wasn't just this instance, though, where national unity played a role in the abrogation (or attempted abrogation) of the rights of Native Canadians. My own people, the Métis, were nearly wiped out by an appeal to national unity. While Canada's first Prime Minister, John A. MacDonald was busy making shady deals with the CPR, Louis Riel was busy fighting them. MacDonald suggested that a railway that united all the provinces in Canada would strengthen national unity (even if it had to be built on the backs of dead Chinese and situated on land that was stolen from the Métis). Again, defrauding the Métis of their land, was done through an appeal to Canadians that it would be good for the betterment of the nation.

I'm sure there are dozens of further examples that would show this trend. I don't know enough yet about the Nisga'a Final Agreement, but I'm sure opponents of the treaty would have suggested that allowing the Nisga'a a large parcel of land and the rights to govern themselves would be detrimental to the whole of Canadian society. Certainly, even today, I am tasked with the job of dispelling myths about those things that seemingly separate Indigenous Canadians from the rest of population. It was within the last month that I actually had to tell an adult woman with an M.A. that Natives don't get free tuition. But I digress. What I'm trying to say is that I find it very fascinating to see how Canada, a country that doesn't really have a huge amount of nationalism (I could tell stories of my experience of nationalism during my stay in Texas) suddenly rallies around the flag any time an Aboriginal group makes a move toward something approaching fairness.

2. Wow:
The second thing that really struck me was the way in which these nations were able to rally their members, find a voice, and make themselves heard. It's not like other groups of citizens. These are people who live in remote locations, and whose access to education, electricity, and even running water is questionable. If Aboriginal people are that powerful with being given almost nothing insofar as assistance is concerned by the government, then imagine how strong we could be if we had the same things that other Canadians take for granted.

Despite 500 years of attempts to wipe us out, we're still here. And we're still fighting. And we're getting stronger every day. It's really fucking amazing.

I'm sitting here in my Self-Government class listening to a big-firm hot-show lawyer lecture us about the BC Treaty Commission. He tells me that the BCTC is the only truly tripartite organization in Canada. (This is not true, of course. I work in Aboriginal health and I am well aware of the presence of tripartite health).

When the BCTC was first formed, the theory was that a funding arm needed to be present in the BCTC in order to make negotiation more fair. The BCTC set up an 80-20 agreement: 20% of the money is a grant and 80% is a loan directly from the federal government. The allocation is all done by the BCTC and the Canadian government is just supposed to "cut the cheque", as it were. But, what with the Conservative government and all, that's not exactly what happens.

The treaty process is broken down into 6 general stages, following experiences of the government with the Yukon and the Nisga'a Treaty. Rather than a proof-of-claim process like in other areas in Canada, the BC-process was meant to be BC-made and run, so they came up with their own way of doing things. It is broken down as follows:

• Stage One requires a Statement of Intent. The First Nation must identify the land they are claiming and provide information about all that business.
• Stage Two is the readiness stage. All parties are supposed to submit information pertaining to the structure of their negotiations.
• Stage Three is typically a relatively quick stage. It is when the parties meet and outline what they will negotiate and satisfy some procedural issues.
• Stage Four is the agreement process. The guts of the final agreement of the treaty are negotiated, including land, monies, resources, minerals, fishing and hunting rights.
• Stage Five is when all details are put to the agreement.
• Stage Six is the ratification of the final agreement.

It sounds easy. It sounds like it's six steps to a better life. Like you can download the What's The Deal With Treaties handbook and within a few months you'll have $30M+, lots of land, electricity, running water, paved roads, and a bowl of rice and a bicycle for everyone.

But it's not. It was the best it's ever been under Campbell's regime, and even then it would take a long-ass time to get a treaty to move from start to finish.

I've encountered studies that suggest that there is a direct correlation between the suicide rate in Aboriginal communities and the opportunities for cultural continuity. This is defined as a sense of ownership over the self and the person one is en-route to becoming. For Aboriginal people, that continuity is centered in community, which plays a big role in the lives of the individuals that make up the communities. The authors of those studies also note a correlation between engagement in the treaty process and the rates of suicide in the community. As the treaty-making is progressing, the suicide risk decreases. But if it begins to slow or come to a half, then the suicide rates increase.

It makes one wonder whether or not the treaty process itself violates s.7 of the Charter in that it necessarily includes stalling, a legitimate negotiation tactic. Knowing that suicide rates are impacted by their actions in the treaty process, do governments have an obligation to negotiate quickly and achieve the best result possible? It would seem that, based on the way they behave now, they do not. Otherwise my friend whose band was, well, disbanded would be able to have her government engage in treaty negotiation with the province and the Feds. But she doesn't. Instead, they t

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The winds of change are in the air. The ground is moving. Our time is coming. I can hear it. I can hear it on the horizon.

The majority of the land mass in Canada was given away through The Numbered Treaties. We read the text of Treaty 3 in class today.

I wonder if the people making the Numbered Treaties were able to predict what would happen with the interpretation of these treaties in recent years? Do you think they knew they were playing this great big joke on Aboriginal people all along?

I love that the promise in Treaty 3 was $12 then and $5 each year thereafter. Great. That's great. But there is, of course, no provision in the treaty to account for inflation. Not Five Dollars Present Day Value. Just five dollars.

And then there's the idea, which was affirmed in St. Catherine's Milling, that the title of Aboriginal people exists solely at the pleasure of the Crown. So the provisions in Treaty 3 that allow the Crown to take back a bunch of land for pretty much whatever they want, and remove the attached hunting and fishing rights, those are a big joke too.

I can't write coherently about this. I'm angry. I'm always angry. And I'll never stop being angry. 

In Georgia, once upon a time, there was a criminal law that prevented non-Indians from being on the reservation without having a license from the state. Of course, some guy went and broke the law. The case went to trial and actually became one of the most important judgments about Aboriginal self-governance in American history.

But what Worcester v. Georgia is really noteworthy for is the obiter dicta, a feature which I'm getting the sense was marked in Marshall's judgments, which actually affirmed the right to self-government. Justice Marshall determined that the Cherokee people were a distinct nation, and since the applicable law was that governing the relations between individual nations, the only people that could make laws pertaining to Indian affairs was the federal government.

His judgment basically iterated what would later become s.91(24) of the Canadian Constitution Act.

What does this have to do with Paul Revere and the Raiders, you ask. Well, let's just take a look at the lyrics, shall we. The following is the first verse:

This verse is actually referring to the incident now known as the Trail of Tears (don't Google it. You'll get a band known as Trail of Tears with blood spatter on their website. Which is really insensitive, don't you think?) Basically, the Indian Removal Act of 1830 allowed the government to pressure Aboriginal governments to enter into "removal treaties". One such treaty was the Treaty of New Echota, which prompted the aforementioned Trail of Tears removal of the Cherokee from their land. President Jackson, no relation to our learned professor, I hope, was the impetus behind this. Or perhaps I should say imbecile behind this.

The above-quoted lyrics describe what happened, essentially. The Cherokee were forced to move off their land, abandoning a lot of their culture and customs along the way. It's just another sad chapter in a really long and really depressing story.

So while the decision in Worcester v. Georgia sounds really great on its face, the fact that the US President then decided to go ahead with removing the Cherokee really undermines anything nice about it. The judgment was about as effective for Aboriginal rights as any of the predecessors I have discussed in previous posts.

Now, while I'm on the topic, I do have a big bone to pick with this song. The chorus goes as follows:

I don't get it. Why the racism? The song is really great at describing the trail of tears in a succinct way while putting it to a rockin' sixties beat. So why the insinuation that there are no Cherokee people left? There are lots of happy Cherokee people (and many more unhappy ones, I am sure) running around today. In fact, the Cherokee nation is the largest of the 550+ Aboriginal groups in the United States, with over 300,000 members at the time of the 2000 census.

Actually, I have a funny story about the Cherokee. Every time I meet a person for the first time and we start talking about my mixed-race heritage, I get the same comment from all of them: "Oh, I'm part Indian too. My great-great grandmother was Cherokee." And I smile and respond to them, "Oh, really? How interesting." While all the while I am thinking that there must be some really lusty Cherokee lady out there, pumping out babies at an immense rate of speed. Some kind of Indian magic, I'm sure.

Anyway, all I'm saying is that with all these 1/32nd Cherokee people running around, plus the actual Cherokee people who still exist today, the line in Indian Reservation doesn't really make much sense. But, you know, they're musicians and not historians. So I guess there's that.

Today, Professor Jackson is discussing the impact of the advent of the United States on First Nations relations with British settlers, particularly in light of the Royal Proclamation of 1763. I find it highly amusing that at the start of Canada becoming Canada we were still concerned about how the United States was going to impact us.

Last night, I was having a post-work drink at a pub in downtown Vancouver. After paying my bill, I wandered over to the bathrooms, and saw that half the restaurant was dedicated to a group of middle-aged men, overweight and balding. They were seated around a television, and were cheering and clapping intermittently. I looked at the screen as I passed through them and saw that they were watching U.S. President Barack Obama speaking. I found out later that it was his State of the Union Address. How is it that American politics were of such import in downtown Vancouver on a Tuesday night that half a popular pub was dedicated to airing his speech?

The Royal Proclamation of 1763 gave the British Government the sole right to own and sell Indian lands. No private citizen could negotiate with the First Nations governments to purchase title to the land. If you look at this on it's face, it sounds kind of nice: "Oh hey, people. We don't want the White Man to rip you off, so we're going to take all the land and call it ours. You get to use it and live on it. And we'll look after it for you." I mean, if you look at that on its face, it seems great.

It's a shame the last three hundred years didn't turn out that way.

Of course, we now know that the rights of Aboriginal people to their lands in Canada exist, as we said in Delgamuukw, "at the pleasure of the Crown". But the budding country of Canada wasn't the only place where the rights to Aboriginal lands were actually vested in the government. In the United States, this attitude prevailed. And I call it an attitude because it isn't really a fact. It's just something some old white dudes said and then it was so.

There is, of course, the Johnson v. M'Intosh scandal. A man bought some land from the Piankeshaw people. He tried to bring an action in ejectment in order to kick the holder of a federal land patent off what he thought was his land. Professor Jackson tells us that this wasn't really all that meets the eye. Mr. M'Intosh was chosen specifically by Johnson in order to undermine the United States's claim that they owned all the land that had previously been contemplated by the Royal Proclamation.

His argument was such that the Royal Proclamation couldn't have applied to the Indians since they weren't British Subjects. So any rights that it abrogated were done so illegally, and it could have no force and effect. And anyway, the Royal Proclamation couldn't undermine the rights of British citizens to acquire title. How ironic that the argument that actually lays out a more logical and equitable interpretation of the application of the Royal Proclamation was only done so that some guy (and his company) could undermine the United States for their own selfish aims.

Doesn't anyone care about us?

The United States is a scary place. They burned witches at the stake. And they burned land title at the stake, if it didn't live up to the doctrine of discovery. The outcome of Johnson v. M'Intosh was as expected in any situation where one group asserts superiority over the  other: the United States had obtained good title; the Indians had only rights in possession; too bad so sad.

Johnson v. M'Intosh predated Delgamuukw by about a hundred and seventy years. But the doctrine of discovery and the inherent racism in the application of the Royal Proclamation still withstood all that. Of course, so did we. And so we still are. And if it takes another one hundred and seventy years for things to start coming up Native, I wouldn't be surprised. But the winds of change are in the air.

There's a black man as president in the United States. If Canada really is looking to the US to see what to do next, the path is clear.

Professor Jackson suggests that the Treaty of Lancaster was conducted using an Indigenous style of diplomacy. There was an interpreter present, the dialogue surrounding the negotiation was framed in a context that members of the Six Nations could understand, and the exchange of wampum was not just tolerated but encouraged.

What changed? How did we move from there to a place where the Eurocentric, Whitewashed system governs the negotiation of land claims in this province? It's shocking that land claims negotiations can move from respectful and thoughtful dialogue that incorporates traditions of both parties to something like this:

It's like Chief Justice Allan McEachern, who made that comment (among others) in the course of his provincial court ruling on the Delgamuukw Aboriginal title claim, predicted the future of treaty-making in this province. God, I'm sure he's smiling from within his grave at the joke that land claims have become following his racist ruling.

From what I can recall of June McCue's class last year, there are some real problems with the B.C. Treaty Commission and how it impacts the making of a treaty. First Nations can borrow money from the provincial government, but if a Final Agreement is not reached, the whole amount becomes due immediately. Of course, treaty negotiation often costs several million dollars. So if a Final Agreement is not reached, the bands or treaty government involved suddenly owe the government more money than they could possibly pay back. The Indian Act, R.S., 1985, c. I-5 gives the Minister of Indian Affairs the power to make all financial decisions for a First Nation. In practice, this has resulted in First Nations governments being controlled by the Minister when they demonstrate that they are fiscally unable to manage themselves.

Yup, treaty negotiation in this province sure is nasty, brutish, and short.

Regardless, I'm still left asking: what changed? How did we move from relatively respectful dialogue and negotiation to extremely confusing loan agreements and subversive provisions in the Indian Act, as noted above? Only about 250 years passed between the Treaty of Lancaster and Delgamuukw.

Professor Jackson suggests that the importance of "Indian alliance" was recognized by the British, in large part, due to the fact that the British and the French were warring for control of what would later become Canada and the United States. But he also notes that even after the French were essentially defeated (well, they got Quebec, but that's more of a booby prize...) there was still import placed on these allegiances. I guess he is positing that there was a gradual erosion of the relationship.

I'm not sure if I accept that. I feel like there had to be a catalyst. But I'm not sure what it may have been.

Whenever I take a class with "Significant Aboriginal Content", I always expect to see the same faces populating it: the faces of my Aboriginal peers.

A few classes in law school have had more non-Aboriginal students than Aboriginal students. This class is one of them. In those situations, I always wonder why they are here. Sometimes we go around class and state why we took it. I always wait for someone to admit that they are here for the sheer purposes of cultural tourism.

I know that sounds harsh, but let's be honest: people want to know about "Indians" and aren't really interested in the actual substantive content.

How many times have I been in a class where we are discussing Aboriginal issues and someone mentions Residential Schools, only to have a non-Aboriginal cultural tourist pipe up with: "What is residential school?" I have so many conflicting feelings about this. On the one hand, it's great that they are asking these questions. But on the other hand... it's offensive that they would sign up for these classes without the most basic understanding of Aboriginal history in Canada.

When I took Aboriginal Law last year with Darlene Johnston, she mentioned in passing that up until the 1950s, Aboriginal people in Canada were barred by way of the Indian Act from hiring or meeting with lawyers. A girl in class audibly said "What?!?" and made a big shocked face. Like this was news.

Instances like that ultimately result in the professor taking time out of class, away from the materials, to talk about something that these students should already know. I already know it. We already know it. And every time that happens, I get a little less of what I signed up for. My body of knowledge on Aboriginal legal issues becomes a little less specialized. And instead of learning about what I came to class to learn about, I have to sit quietly while ignorance is corrected.

It's often been proposed that some classes like that should have an entrance exam. You must demonstrate a certain level of knowledge about Aboriginal history and/or issues before you may take this class. If you fail to do so, then you must take the remedial level before you can advance. But, to my knowledge, nothing like that has ever actually come into effect.

So what's a girl to do? Especially in a circumstance where I am outnumbered. Where we are outnumbered. Where we learn more about what other people think about us and about what other people don't know about us than what is really real and true. And what is complex and crucial. And when that happens, the Aboriginal classes suddenly fade and disappear into the mass of classes with Significant European Content.

Today is the first substantive class of Treaty Law with Michael Jackson. At the beginning of the class, he posed to us a question: If the justification of the European settlers owning the land was that of discovery, why would that have not worked the opposite way? That is, if Aboriginal people had piled into their long canoes and headed on over to Spain, claimed to have discovered it and taken title of it, would the result have been the same? He suggests that no one would have taken the claim of the Aboriginal people seriously.

I've thought about manifesting destiny all over the place before. Just showing up somewhere I've never been and telling the people that "own" that place that it's all mine now. Ideally, I would do this in Red Lobster. Plus, it would be in keeping with the more American tradition of manifest destiny.

I was once standing in a particularly long line at a Beer Up. There was a conflict over the position of certain people in the line and others cutting in with them. If everyone let their friends in, after all, no one would get any beer. To ease the tension, I cracked a joke about how I was just going to claim Aboriginal Title to the room, and everyone else was now my guest. Some girl I'd never seen before (but who is presumably of Aboriginal descent) glared at me, shocked, and yelled "That's offensive!" Of course, I quickly informed her that I AM Aboriginal, which shut her up pretty quickly.

I guess that's where the difference lies. If you claim title over Aboriginal land, we just sort of say "That's offensive!" But the Spanish (at least in the 1400s and 1500s) would kill you. I mean, really, brutally, awfully, and torturously kill you.

Those pictures and that link above are one thing. What happened at Sand Creek in the 1860s was another entirely. I took a class in Native Literature while I was doing my undergraduate program. During the course, we read a long poem by Simon Ortiz, called From Sand Creek. It described a massacre that occurred in the southern United States thus: After the Cheyenne and Arapaho people singed a treaty with the United States government, the military was sent in to Sand Creek to massacre the people living there. There was a bunch of tension in the area because Europeans blamed the "Indians" for some problems they were having. The brutal attacks described in the poem have stayed with me for years. Warriors were killed, yes, but so were women and children-- babies, even. People's genitalia were removed and used as jewelry or hats. It makes me sick to my stomach to think about it.

I guess if you don't like the way a treaty is working out, slaughtering women and children is the way to resolve the problem.

So to return to Professor Jackson's question at the outset of class: what would have happened if Aboriginal people had showed up in Spain and said "this is nice, I think we'll take it."? Well, I think nothing would have happened. Nothing unless you back up that statement by slaughter, torture, and violence. It's one thing to say "This land is our land now." But it's another thing entirely to demonstrate that if the colonized people aren't going to play nice and let you have the land, you're going to take it by force.

By hook or by crook.

By crooked people, hanging ancestors on hooks, burning them alive.