Masthead graphic based on a painting by Gudrun Thriemer.

Monday, May 01, 2006

Three misconceptions: The Six Nations Confederacy at Caledonia

The Six Nations protest against the Douglas Creek Estates housing development in Caledonia, Ontario continued to simmer this weekend, fueled in part by three misconceptions. The nation-to-nation nature of the conflict makes it international news.

In a letter to Gathering Place, Sharon Green's website of First Nations Canadian News, (April 25, 2006), an aboriginal man who goes by the name of Mike Christian raises the point

I keep hearing the settlers via the media saying how we as First Nations have been 'conquered' and they as the conquering force can manipulate us as they see fit and [how] because of this 'conquering,' we are all 'Canadians' and our Nations no longer exist!? When did all this 'conquering' take place!? [he asks]... My understanding of Canadian history ... [he goes on to say] is that many of the treaties signed in this country were to ensure both First Nations and Settlers prospered together!?

Mike Christian is right, and he's not splitting hairs.

It is generally understood that relations between the indigenous people of this continent and the European colonists took a fundamentally different path on the Canadian side of the border from that eventually taken on the US side.

On the US side, that relationship begins with the Declaration of Independence in which George III is accused, among other things, of endeavoring quote "to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes, and conditions" (1776).

This is not the place to get into the similarities between this description of Indian people and that of suspected terrorists being held as illegal combatants in Guantanamo Bay, but there are scholarly discussions of the subject that make it worth noting for future reference.

In the US, the century that followed the Declaration of Independence was a century of expansion and Indian Wars inspired by genocidal slogans like Andrew Jackson's "the only good Indian is a dead Indian." An Act of Congress in 1871 unilaterally renounced the United States' adherence to the international law of Aboriginal and treaty rights. (Hall 29) In the US the First Nations were officially seen as enemies.

In Canada, they were allies, allies of the Crown and allies of the local military.

The Royal Proclamation of 1763 is the foundation of Canadian Abriginal law. It is the basis of our understanding of the legal nature of Indian title and an historical root of the treaty prcess.

In the wake of the Seven Years War, known in the US as the French and Indian War, the Royal Proclamation reserved lands west of the Appalachian height of land to the Indians as their Hunting Grounds not to be included in any colony. The Proclamation went on to prohibit private persons from purchasing land from the Indians because of "great Frauds and Abuses."

Lands ceded by Indian people were to be purchased exclusively by and for the Crown, and settlement was foridden. While the Indian Nations governed the Proclamation Territory under their own laws, the Crown also directed that non-Abriginal fugitives from justice could be pursued and taken within Indian lands. (Virtual Law Office)

Nisga'a Chief Joseph Gosnell refered to this proclamation in his speech to the BC legislature when the Nisga'a Treaty was ready for signing. "We took to heart the promises of King George III, [he said] set out in the Royal Proclamation of 1763, that our lands would not be taken without our permission, and that treaty-making was the way the Nisga'a would become part of this new nation..." (Gosnell Dec 2 98).

The Proclamation of 1763 was also brought forward during the process of repatriation when it was mentioned in the Charter of Rights and Freedoms.

It would be a mistake to suggest that these differences between the American and the Canadian approach to First Nations people are final or absolute. For example, it is said that Benjamin Franklin was so taken with the Six Nations concept of confederation that he resolved to incorporate it into his plan for the new American republic.

On this side of the border, both the provincial Liberal Party in BC and the federal Reform Party declared war on the treaty process in the run up to the signing of the Nisga'a Treaty. There is always a constuency reluctant to give up what its predecessors have taken the trouble to steal. That's why the treaty process has been so slow. The Hollywood myth that all the "merciless Indian Savages" of the New World were conquered as civilization moved West hasn't helped either.

And that brings us to a second fundamental misconception.

On April 6th, Deirdre McCracken, speaking for Minister of Indian Afairs Jim Prentice on the Caledonia crisis, said quote "This is not a lands-claim matter" and that the blockade quote "has nothing to do with the Federal government" (Lindsay Apr 19 06).

In a letter to the editor, Rolland Pangowish of the Wikwemikong Unceded Indian Reserve explains,

"At issue here are the outstanding fiduciary obligations of the Crown."

Most Canadians are probably more familiar with the fiduciary duty that corporations have toward their shareholders, that is to say corporations are required to protect shareholders' interests.

When a fiduciary duty is imposed, equity requires a stricter standard of behaviour than the comparable duty of care under common law. It is said the fiduciary has a duty not to be in situation where personal interests and fiduciary duty conflict, a duty not to be in a situation where their fiduciary duty conflicts with another fiduciary duty, and a duty not to profit from their fiduciary position without express knowledge and consent. Generally and in detail, a fiduciary cannot have a conflict of interest. It has been said that fiduciaries must conduct themselves "at a level higher than that trodden by the crowd."[1] (Wikipedia) And so it is for the government in its relation to the First Nations.

According to Pangowish, who directs the Assembly of First Nations Land Rights Unit and co-chairs Joint First Nations-Canada Task Force on Specific Claims Policy Reform, the Crown's outstanding fiduciary obligations relate to "trust-like responsibilities the Crown unilaterally assumed when it imposed its Indian Act and other laws on First Nations, despite its treaty relationships with most of these First Nations" (Pangowish Letter Apr 26 06).

"...the Crown is expected to protect the interests of Indian bands from unjust deals. The court has sometimes said no sharp dealing should be tolerated.

Pangowish says
Time and again it is proven that federal officials did not secure the interests of Indians, in a myriad of reserve land surrenders across Canada. The building of Canadas railways brought about a number of classic cases, where Crown officials and politicians colluded with developers to swindle First Nations out of reserve lands without adequate compensation. (Pangowish Letter Ipr 26 06)

Pangowish points out that "Canadas Bill C-6, the Specific Claims Resolution Act, sits on the books unimplemented because .... The Liberal Government... could not bring itself to eliminate the conflict of interest in handling legal claims against itself....

Pangowish says, "Canadians who want to talk about the rule of law should look at the confict of interest their governments are engaged in when it comes to resolving outstanding land claims. If there is one law, why is it not applied in a fair and reasonable manner when it comes to First Nations?" (Pangowish Letter Apr 26 06).

In the present case, General Haldimand proclaimed in 1784 that Britain would protect the Six Nations right to occupy the land for six miles on either side of the Grand River from its mouth to its source--that is from Kitchener to Lake Erie. This protection was offered by a grateful British Crown in compensation to its Indian allies who had lost land in New York State during the American Revolutionary War.

The original 950,000 acres of the so-called Haldimand Tract was downgraded in 1795 by Lieutenant-Governor John Simcoe to 275,000 acres. Last week protesters pointed out that the Six Nations reserve outside Brantford now covers less than 5 per cent of the original tract. (Legall Plank Road Mar 28 06)

Much of the land was taken away for public projects.

In 1982, the elected Six Nations Band Council filed the first of 29 land claims. One deals with the land along Plank Road, which the claim says was taken from them and sold to third parties in 1841. That road is now Highway 6.

Some of the land was taken without compensation for the Welland Canal while money due to them helped finance the construction of McGill University.

So far, only one of their claims has been settled. In 1985, band members voted to accept $610,000 to settle a dispute with Canadian National Railway over 80 acres on the eastern border of the reserve.

Not only were Canada's native people not conquered, they have not been protected by the Crown especially against the Crown's own demands for land. A third misconception entails the contradictions that remain when one form of democracy is enforced at the expense of another.

In late March, John and Don Henning, of Henco Industries Limited, the developers building Douglas Creek Estates subdivision on part of the Haldimand Tract, issued a press release stating that quote "We are being held hostage between a splinter group and the federal government, a situation over which we have no control" (Legall Clan mothers Mar 23 06).

Without in any way diminishing the frustration of Henco Industries, it is naive to think of the clan mothers, the elders, and the Confederacy Council as "splinter" groups. They are the originals. Band Councils were imposed by the federal government in 1924.

The Six Nations Confederacy has been called the oldest living prticipatory democracy on earth. Hazel Hill one of the women active at the blockade describes how decisions are made. "There are fifty chiefs which represent the Confederacy Council and there is a clanmother with each chief. It is the people whose voice the chiefs and clanmothers carry. Any decision regarding land, comes first from the women, and then to their clans, and through the process of our council, when all are in agreement, or when consensus has been reached, only then does the decision stand," she says. "In our history of the Haldimand Tract, this has never been done'" (Lindsay Apr 19 06).

This may be hard for Canadians to grasp who have not elected a woman as Prime Minister or provincial Premier for the country's entire history and who for part of that time didn't allow women to vote.

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