When chief justice Marshall of the United States Supreme Court presided over a majority decision insisting that only the national government, and not the state of Georgia, could make decisions on Indian affairs, president Andrew Jackson famously remarked, “John Marshall has made his decision; now let him enforce it…Build a fire under them. When it gets hot enough, they’ll go.” And that’s exactly what happened as the Cherokee Nation, like the Choctaws and Seminoles before them, were forcibly removed from their homes and driven down what became known as the Trail of Tears to Oklahoma Territory.
It is a truly shameful episode in modern history, but it is Jackson’s comment that drives home the dilemma that is faced even today. Since the early 1970s, the First Nations, Inuit, and Metis people have been winning substantial and important legal battles.
What is deeply troubling is the gap between the Supreme Court of Canada’s decisions and the willingness of both provincial and federal governments to enforce and follow the decisions.
A powerful dissent by Justices Hall, Spence and Laskin in the Calder (Nishga’a) case in 1973 set out emphatically what many Canadians now realise to be true, namely that “the proposition…that after conquest or discovery the native people have no right at all except those subsequently granted or recognized by the conqueror or discoverer was wholly wrong”. And yet time and again it is “propositions” like this that government have continued to make in their dealings with indigenous people and their governments.
Since the Calder case, there has been an evolution, but hardly a sea change. This week in court, for example, the Nunavut Tunngavik Inc. (NTI), the political representative of the Nunavut Inuit, and the government of Nunavut are having to go to court to enforce treaty and land claim agreements that were signed not in ancient times but in recent memory. The spirit of Andrew Jackson is, alas, too alive and too well.
Modern treaties and agreements have been signed, but getting them enforced is proving difficult. The provinces of Ontario, Manitoba, Saskatchewan, Alberta and eastern B.C. are covered by what are known as the “numbered treaties”, the product of the same era that brought us the Indian Act and residential schools.
As Murray Sinclair has put it so succinctly, “the truth will indeed set you free, but first it will piss you off.” These three pillars of late nineteenth century policy were the product, as John Ralston Saul has reminded us again in his book The Comeback of a period of imperialist, racialized thought. The assumption of the time was that Indians were genetically inferior, and would either die off or assimilate. The treaties were intended to clear title, and clear the land. The Indian Act was meant to confine Indians to tiny, scattered pieces of land, and the residential schools were supposed to take the Indian out of the child and literally obliterate an identity and a way of life.
The numbered treaties could be described as trillion-dollar misunderstandings.
The written documents, drafted entirely by governments, were not understood by those whose “x’s” marked consent. The elders and leaders of the time could not possibly have agreed to “cede, release, and surrender” title to land which they themselves did not believe they actually “owned”, but rather believed that they used in the name of the Creator. What they saw as a solemn treaty relationship, which both sides had a solemn obligation to maintain and uphold, governments saw as a way of getting them off the land and clearing title for settlement and development.
Some First Nations are moving successfully to claim jurisdiction and assert responsibility, but in the numbered treaties this is not happening, and the gap in status, well-being and power between and among indigenous people in Canada has to be better understood so it can be remedied.
Cindy Blackstock’s remarkable campaign to insist that discrimination against indigenous people in education and social welfare must end has been met with nothing but resistance and legal gamesmanship. There are issues being tried in jurisdiction after jurisdiction with the single objective of getting well established rights and principles of law enforced. The cynicism of governments seems to know almost no bounds. They will do as little as they can to enforce, implement, and make change.
The dilemma remains that the majority of Canadians, and the parties that strive to represent them in Parliament, think about these issues as little as they have to.
They will not be front and centre in any election campaign, and these relationships are as subject to misunderstanding, stereotype, and sheer ignorance as any public policy in the country.
The reason for the lack of leadership is not hard to figure out – it has everything to do with a read of public opinion itself.
But the issues will not go away, or get any easier, as time goes on. The indigenous population is the fastest growing in the country, and will become an increasing factor in urban life, where most Canadians live. And resource development is now extending deep into the traditional territory of people who have strong views about their own jurisdiction, rights, and needs. Governments and companies ignore these realities at their peril.
Some governments and premiers understand this, and some not so much. But if the insistence of our constitutional law is that accommodations must be reached is not matched by serious political action, the result will not be a trail of tears. It will be a series of confrontations, large and small, which in themselves will require a response. It has been said that good public policy is what happens when all the alternatives have been exhausted. Enough already.
**A Special To The Globe and Mail
photo by Simon Hayter, 06.
Delford Louis 5 years ago
Mr. Rae,
Somewhat interesting who takes upon themselves to speak for others. in this case am impressed. Being an ‘Indian’ under an act of parliament is grossly reprehensible, archaic, hateful, racist, oppressive and childish. This Act should be replaced as it is a legal boondoggle and another instrument be created in its place. This is a stumbling block to advancement to those who know the truth as their ally and independence as their cause. Am one of these. Having left the reserve for a myriad of reasons the least of which is family community. I believe the move is relative to the common usage of the word, self-determination. You see, Mr. Rae i know what it takes to make this move. I know the emotions and logical thinking needed to enact this important life changing decision. I know the implications behind and know the confrontation of law enforcement and others who would act inappropriately toward people who decide this. it is disparaging but i disregard this nonsense. My life is important too like anyone else in society. So this decision is primarily individual and one has to find their will and desire to do this for the good of their family, community, society. i realize all the potential risks one takes also know the intelligence used and planning. So as we search for meaning from the larger society and government and those who decide to stay on the reserves we need to allow for what ever decision others make. Remember the geographic, cultural, language differences. One AANDAC duplicate NGO in Ottawa, AFN, does not make any difference to a reserve in the bush with no running water or proper school etc. you are aware of all these circumstances. As a citizen of the world (actually find it difficult to call myself a Canadian citizen because of the Indian Act) have found my calling late as in life as it is! This calling is to make movies, film, not propaganda but entertainment with a positive message of hope, deliberation and freedom as the final effect. As an indie filmmaker there is a desire for profit to keep on making film with an initial investment from financial wizards. I have waited over 25 yeats to make this happen and believe me it is difficult and humbling. Trying to make it in Canada is an added worry as the political effects are diverse and oppressive regimes are everywhere. As an optimist I need to call upon whoever will listen. Dave Kilgour asked me to run federally many years ago. I was not ready. Today I am ready as producer in the entertainment business. I am asking for you to whisper a message to those you know in your circles , “there is an indie filmmaker, Delford Louis, that requires a hand up not a hand out.” with a ray of hope (no pun intended!) am confident know I will make it to tell stories from one who knows both sides of the coin so to speak!
Thank You Mr. Rae!
Delford Louis
Samson Cree #944
sorry for the first person email it was crucial in this message!
will be graduating in June 2015 from U of C with a BA in INT”L INDIG. Studies