All posts by fusangite - 8. page

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:

1. 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.
2. 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.
3. 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.”
4. 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.

A couple of years ago, I wrote some essays about the transformation of the land acknowledgement from a ritual act that engaged in small-scale compensation of victims of colonialism into Canada’s answer to American Thanksgiving, a process by which settlers welcome themselves to the land they are stealing and then thank their victim for allowing their land to be stolen, like it was their idea.

Silly me. Land acknowledgements were merely the incubator of a new horror dreamed up by the brain trust of smug, woke colonialism, Truth and Reconciliation Day. The new kind of colonial rhetoric the managerial class has been practicing at corporate retreats, faculty meetings and gatherings of labour aristocrats and non-profit executive directors is now being taken nation-wide as an annual festival of white guilt and narcissistic mock self-flagellation.

To understand why this is happening, why the face of colonialism is now always crying, we need to trace the idea of “truth and reconciliation” as a political project from its inception, to understand what it was and what it now is.

When the Berlin Wall fell in 1989, it became clear that the Soviet imperial project had entered its terminal phase. The Soviet economy was being hammered not just by pent-up dissent from within and the rapid loss of its vassal states but by shifting global commodity prices that hammered its balance sheet and economy that, in turn, devalued and destabilized the ruble. The state increasingly lost the capacity to deliver the things its populace wanted and this, in turn, increased emigration and political dissent.

Ironically, a similar thing that had happened to the USSR was happening to the Republic of South Africa, the terrifying, retrograde white supremacist regional power of sub-Saharan Africa. Like the USSR under Mikhael Gorbachev, South Africa, under PW Botha, had attempted to engage in incremental liberalization by expanding opportunities for democratic participation. Botha had partially enfranchised previously disenfranchised South Asians and “coloureds” of mixed race; he had also rapidly expanded the “Bantustan” system, ceding large but economically unproductive swaths of South Africa to black-led governments.

As in Eastern Europe, these concessions had the effect of altering the horizon of expectation of South Africans in exactly the wrong way. Now that the government was beginning to yield and its multi-state solution was failing, the way forward was clear: a one-state solution of all South Africans, irrespective of race. Following a massive increase in resistance, which was met with escalating state violence and torture, Botha was forced to step down and his successor, FW de Klerk was given a clear mandate by the party: fix this.

As in the USSR, increasing international sanctions, increasing isolation, declining commodity prices had produced a crisis of confidence in the middle class who began both emigrating and dissenting at rapidly increasing rates. Ronald Reagan and Margaret Thatcher, the legendary cold warriors and the biggest boosters of South Africa were gone and their successors saw no need to prop up an embarrassing and corrupt regime now that the Cold War had been won.

De Klerk’s job was clear: stabilize the rand; increase its purchasing power; fill the stores with imported goods again. In other words, maintain the wealth of the propertied class and the economic privileges and heritage of white caste by any means necessary.

This meant striking an agreement with the African National Congress. The ANC had a number of leaders, a ceremonial imprisoned leader, Nelson Mandela, an international celebrity whose personality cult had been carefully constructed by Oliver Tambo, the acting president, who ran the organization from Zambia, the nearest state to South Africa that would dare to host its government-in-exile. Its most senior and powerful leader inside the country was Joe Slovo, the head of the South African Communist Party.

Tambo and Mandela were, like Slovo, Soviet-aligned communists. That meant that at the very moment they should have had the strongest hand in the negotiations De Klerk commenced, the reality was that their primary patron had just disintegrated into a post-Soviety free-for-all of plunder, corruption and political incoherence.

We must then understand that the negotiations over the peaceful transfer of power in South Africa were skewed first, in the sense that one side held all state power and the other held none, second, in the sense that one side’s international allies had just won the Cold War and the other’s had vanished and, third, in the sense that the context of the negotiation was a hegemonic global neoliberal consensus to which all major parties in all major states were abjectly capitulating.

Consequently, what the ANC got, in its negotiations, was actually not much. There would be no land reform, no asset seizures, no nationalizations. In addition, there was the problem of the judiciary. The judiciary was corrupt and had been appointed by a white supremacist regime for a century. Even if the apartheid government could have somehow been made to agree that its officials could be brought to justice for all their murder and torture, how could one address the crimes that were committed by a regime that also did everything in its power to prevent black people becoming lawyers, never mind judges?

With little hand to play, the ANC negotiators got the best they could: new courts with limited subpoena powers and no ability to attach jeopardy to the hearings they conducted. They could make the war criminals testify but only without jeopardy attached. Almost the entire white population was blanket-immunized against prosecution for the atrocities they had committed.

The practical purpose of these courts was twofold: rapid on-the-job education of newly-minted black lawyers in courtroom procedure and an opportunity for the victims of the regime to experience some limited sense of “closure” by hearing their tormentors at least confess to their despicable acts.

The political purpose of the court was vast: to create a mandate for the new South African state to use its police forces and judiciary to protect white South Africans’ ill-gotten gains, their wealth, their consumer spending power, their ability to continue employing black servants in their homes and black miners in their gold and diamond mines. And so it needed a really catchy name. They called it the Truth and Reconciliation Commission.

Nearly thirty years since the transfer of power, history’s verdict is mixed. An evil that the TRC had been created to prevent did not happen; South Africa never descended into civil war. But the massive asymmetry between the voting power of black South Africans and that of whites versus the countervailing imbalance of economic power, and a state hamstrung by neoliberal property rights protections, has produced a violent, unequal society rife with corruption, which has become the only way Africans have been able to convert their political power into economic power.

In some regions of the country, especially the Southwest, Truth and Reconciliation seems to have been a step in the direction of a more equal, more inclusive, more integrated society. But as one travels northeast, closer to the gold and diamond mines, the core of the state’s economic power, the country seems as divided, as segregated as ever but with an array of private security forces and an incompetent and corrupt national constabulary replacing the old Ministry of Law and Order uber-cops.

Furthermore, as the national government devolves into a spoils system, pre-existing national divisions are increasing among black South Africans. Xhosa-Zulu relations are on the decline, to the point where the ancient corrupt vendu Bantustan leader of Kwazulu, Mangosutu Buthelezi is again a national political force. And all signs point to a continuing decline towards Kenya-style politics of great nations trapped in an endless petty fistfight over the table-leavings of neo-colonialism.

South Africa’s TRC was both a high price to pay to gain majority rule and, concurrently, a tiny amount of settler accountability bought at an astronomical price.

So why would Canada want to copy this?

It didn’t we just stole the name and put it on something emptier and worse.

More about that next.