So, if “truth and reconciliation” is not the way forward when it comes to the land question, what is? And how do we engage in a productive discussion among Indigenous people and settlers about what it might be? Unfortunately, before we can begin to join the rich, vibrant global discussion around land justice for Indigenous people and examine policies that have produced actual redistribution of wealth and power, we need to recognize the forces that have walled Canada off from the rich global conversation that regimes like Bolivia’s are part of.
While there are many definitions of “Indigenous,” it is generally recognized that Indigenous people exist in many parts of the world, the Sami of northern Scandinavia, the San of Central Botswana, the Araucanians of Chile, the Yakuts of Siberia, the Moskitos of Nicaragua, for instance. This group has been called, collectively, “the Fourth World,” a term originating in Canada from a correspondence between the Tanzanian ambassador and George Manuel, head of what would soon become the Assembly of First Nations, back in the early 1970s.
One of the things I find most perplexing about Canadians of all backgrounds who are interested in justice for Indigenous peoples is their disinterest in how this debate is conducted in the rest of the world, how the land question works, how constitutional and legal rights work, how indigenous cultures interact with national cultures, etc. There is such a deep parochialism, a deep provincialism to Canadian discourse about Indigenous politics and the land question.
And as with other highly provincial discourse, lack of knowledge forecloses any possibility for comparison, the primary handle we have on evaluating anything. If Canadians cannot compare Indigenous experiences and policies across geography, our only option for comparison is time; all we can do is compare what we are doing now with our past—a convenient turn of events given our post-1982 folk belief that our ancestors were all black-hatted genocidal malefactors, to a man, whereas we are the first generation of good people ever to exist.
The Indigenous communities on top of which Canada is being built have long sought to chart their own political course and achieve degrees of independence, self-reliance and autonomy within the chaos of the Canadian project.
One of the first strategies was to create a pan-Indigenous identity that sought to create new areas of cultural, political and linguistic common ground among Indigenous people, often with new religious movements paired with military confederations. This began in the 1780s with the prophet Neolin and Pontiac, the general and continued with Tenskwatawa and Tecumseh during the War of 1812 and then Wovoka and those who followed the Ghost Dance. While impressive, these movements were crushed, one after another, the strategy delegitimated in the present day.
Since Confederation, many Indigenous people have attempted to make use of the elected leadership structures of the Indian Act. Both radicals and moderates have sought office as chiefs and band councillors in an effort to use their elected office and limited spending power to exert greater control.
Of course, these governments are set up to fail. They have no taxation power and are funded using a block grant system over which they exert no political control. The only way to find money for new activities to cut the funding of something else. Consequently, most who seek to effect change through official reserve governments become the public face of the chronic underfunding and mismanagement of reserves and are pushed into alliances and financial dealings that only further deligitimate them as corrupt.
Attempts to use the colonial electoral system have been similarly disappointing. Canada did not choose either to create reserved Indigenous parliamentary seats the way New Zealand did in the nineteenth century; nor has it enacted proportional representation, like New Zealand, so as to permit Indigenous people to concentrate their votes behind their own political party, as the Maori Party does. The only route open to Indigenous people through colonial electoral politics is entryism into major political parties. But despite extraordinary leaders like Jody Wilson Raybould, Elijah Harper and Romeo Saganash sitting on the front benches of major parties in Canada’s parliament, they have little to show, materially, for their work.
Civil disobedience, similarly, has a checkered record. While civil disobedience campaigns have delivered some results for Indigenous people with the creation of the park-reserve designation (a land use category Canada imported from Botswana that recognizes Indigenous people as a kind of self-governing wildlife, co-running the park they inhabit with the feds), the most important results they have produced have been because they coincided with a larger legal strategy to assert Indigenous rights and self-determination.
We have to recognize that Canada’s settler society is one of the more unresponsive in the world. The Sami might be far more hated according to polls of Norwegians and Swedes but they have considerably greater self-government and territorial rights. The Maori might suffer from widespread alcoholism and elevated suicide rates too but there is a Maori party in parliament that sometimes holds the balance of power. Consequently, the land and language rights of the Maori are ahead of those enjoyed by Indigenous Canadians.
The only exception to this failure of responsiveness on the part of Canadian settler institutions has been the courts. Since the landmark Gosnell case in 1972, Indigenous people have mainly lost but sometimes won major cases before the courts and regained some portion of the self-determination and land they possessed prior to colonization. Some of these cases have begun in civil disobedience actions like blocking logging roads or exercising traditional fishing or trapping rights and it has been the courts’ judgements about the protesters’ actions and not those physical actions themselves that have produced every significant political gain for Indigenous people since I was born.
The past half-century of occasional victories and some genuine gains (compared to the centuries preceding) has been pretty much exclusively because of an increasingly friendly court system. But unlike the major gains for the rights of women and racial minorities, these are not the result of more favourable interpretations of a large number of laws; instead, these Indigenous victories rest upon a single legal theory:
Canada’s (i.e. British North America’s) founding (and foundational) piece of constitutional law is the Royal Proclamation of 1763, one of the “intolerable acts” that gave rise to the American Revolution. The Proclamation stipulates that all Indigenous lands beyond the Appalachian Mountains that had not already been conquered by the British could only be ceded by a mutually-agreed treaty between Indigenous governments and official representatives of the British Crown delegated the power to conclude treaties.
The effort to secure the continued alliance with Iroquois, Mi’kmaq and other British allies by protecting them from illegal colonization by land-hungry settlers was an important foreign policy by the British Empire that was generally supported by wealthier, landed, conservative settlers and opposed by poorer, landless settlers more interested in the new liberal ideas that were washing across the Atlantic.
And following the American Revolution and the mass migration of conservatives from all over Anglo America to Upper Canada and the Maritimes, the Proclamation became the primary legal and political distinction between the loyalist colonies, which would coalesce into Canada, and the revolutionary colonies that had become the United States. Because it lays the foundation of settler self-government within British North America and creates the original legal and political distinctions between Canada and the US, the Proclamation retains a significance and legal force commensurate with supreme (i.e. constitutional) law and a status comparable to the British North America Act (1867), Statute of Westminster (1931) and Constitution Act (1982).
When Indigenous people began to chalk up significant court victories in the last quarter of the twentieth century, the Royal Proclamation, and the recognition of the pre-existing Indigenous rights it recognized in the Constitution Act, were front and centre in landmark judgements. And there were a number of surprising turns accompanying this:
- Previously, BC Indigenous people had been the worst off when it came to asserting their rights because so few were able to secure any treaties at all when their land was seized; now, the absence of a treaty was more advantageous than a treaty with which Canada was partly but not fully compliant
- Previously, the primary representatives of most Indigenous nations were elected band councils created by the Indian Act to represent Indigenous peoples; now, the remnant and reconstituted hereditary governments were recognized as the outward-facing representatives of Indigenous polities
- Previously, the main place where the rights of Indigenous peoples were debated and decided was the House of Commons; now, it was the higher provincial courts and the Canadian Supreme Court
And even when it looked like that might change during Brian Mulroney’s period of constitutional brinksmanship and the crescendo of twentieth-century Indigenous resistance through civil disobedience and armed struggle, all that came to naught. The Oka Crisis, the Meech Lake Accord, the Charlottetown Accord, despite massive mobilization, failed to move the big debates and big decisions either to the streets or first ministers’ conferences. When the dust settled, the courts remained the only game in town that wasn’t completely rigged.
Before these developments, the political strategy of Canada’s Indigenous leadership involved building major federations like the Assembly of First Nations, building international links with potential allies internationally, from Julius Nyerere’s Tanzania to PW Botha’s South Africa and in making policies that were mutually beneficial to settlers and Indigenous people more popular and electorally successful with Canadian voters.
But while success in the courts meant real gains in land and power and the ability to compel elected governments to make beneficial deals, it has exacted a huge cost, one of which we are generally unaware because that is part of the cost.
As any scholar of rhetoric and communication will tell you, before you design a communication, you must answer these questions: (1) Who is the intended audience? (2) Who is the public author/speaker? (3) What does the author need to convince the audience of?
In our present environment, and for rational reasons, when Indigenous people and their allies communicate about the land question the primary audience is not the general public; it is not the voting population; it is not parliamentarians. It is the upper levels of the judiciary because the beliefs of the upper judiciary are pretty much the only settler beliefs that exert a positive effect in resolving the land question favourably for Indigenous people?
Once this is established, we then can examine the already-stated beliefs of the courts to determine who the ideal speaker (not the author) should be and the courts have made this clear: those who are authorized representatives of pre-colonial hereditary governments, in other words, individuals who most resemble pre-modern feudal lords and ladies in the minds of the courts.
How does one demonstrate this entitlement? Traditional costumes are helpful as is speech in traditional languages or, at least, English speech inflected with an accent implying fluency in an Indigenous language. Practice of a pre-colonial religion is also helpful and, if not a pre-colonial religion then, at least a neo-traditional revitalization religion like the Handsome Lake Church or Sundance Movement. Possession of an inherited, Indigenous surname is ideal but more important is the surname’s association with a lineage tied to a special responsibility to control or steward a delimited piece of territory. Finally, continued residence in or near the delimited territory is key in legitimating the speaker.
This places a heavy burden on a particular minority constituency within Indigenous communities, given that Indigenous people are the second-most Christian, churchgoing racialized group in Canada and a majority live in cities and even those who do not often residing in rural locales far from their traditional territory. Also, as it true of all peoples, most Indigenous people are not descended from pre-modern aristocrats. While clan membership systems can sometimes mitigate this last factor, they place their own limitations and requirements for membership.
This means that there are strong incentives to project a particular face to the world, to amplify unrepresentative voices in Indigenous communities for the communities’ collective good.
The question then becomes what these voices should say: generally, the job of these voices is to reinforce the legal bases in which courts grant Indigenous people greater control of the lands in their traditional territory:
- The unbroken nature and heritability of land title: The courts are not interested in granting land to people because they need it. Their job is to return land stolen from its prior owners. That means that not only must Indigenous people show that their aristocrats and members of their clans once controlled that land but that they would still control it in the present, barring an intervening exogenous act (i.e. colonization). That means showing that Indigenous cultures are even more conservative in preserving the heritability of aristocratic privilege, that there is less churn in land ownership than in the lands and titles of European nobles.
- The immutability of oral tradition: One of the most important developments in the landmark Delgamuukw case was the recognition that Gitksan oral tradition had correctly dated the region’s last major earthquake right down to the year. And in the intervening generation, there have been other breathtaking instances. But, as a member of a lineage of former slaves, I know, as does anyone who has participated in a strongly orally inflected culture that this is only half the story of the power of oral tradition. The other half of its power is the very opposite; while it is capable of great accuracy and fidelity over centuries, it is also more capable of re-narrating the past and changing its details to meet the needs of the present than any written culture can. But it is necessary not only to de-emphasize but to deny this feature in order to project an image the courts need to see.
- The continuity of pre-colonial economic interests and activities: When it came to treaty-governed, rather than unceded territory, it was the Donald Marshall case that offered the greatest hope for Indigenous people gaining justice through the courts. Marshall was a Mi’kmaq fisherman who argued that the Nova Scotia and Canadian governments were violating the treaty between the Micmac and British by limiting his fishing rights. The greater the extent that Indigenous people can make an economic claim based on a “traditional” activity, the greater the likelihood that the courts will side with them. It is for this reason that the Wet’suwet’en have focused their public discourse concerning the pipeline the Horgan government is ramming through their territory for Royal Dutch Shell on the damage it is doing to their trap lines. Its disruption to their university-affiliated healing centre and the education and psychological treatment they are conducting there is far greater but having a psychology PhD assisting Indigenous youth with trauma and educating Masters students is not a “traditional activity.”
- The idealization of the pre-colonial past: In tort law, what is important to the court is the demonstration of loss. Therefore the better the pre-colonial past was, the greater the compensation for its loss. Furthermore, because it is also necessary to emphasize the continuity of aristocratic authority and heritability, it becomes necessary to show past Indigenous societies to be benevolent, paternalistic organizations with history’s kindest lords presiding over the history’s most compliant subjects. The verticality of pre-colonial Northwest Coast societies and their practice of slavery must be programmatically effaced.
Taken together, the rhetorical strategy most effective for seeking justice for Indigenous people is to present themselves as a kind of museum exhibit, as the most hidebound conservatives on earth, people with a special, nigh-magical ability to be untouched by the passage of time. In this way, Indigenous people are conscripted by financial exigency to fill that role in the consciousness of the West that Herodotus described 2500 years ago as “the blameless Ethiopians who still dine with the gods.”
With the current structure of our discourse laid-out, I will move on in the next post to talk about how and why the conversation is different everywhere else and better in most of those places.
