The Inconvenient Indian (21 page)

But without the treaties, the Indian Act is a parasite without a host.

The disheartening reality is that, even if the combined efforts of national and grassroots organizations were successful in getting rid of this particular assault on Status, it simply means we’d be back to 1985. No further ahead. All of the problems we face as Native people would still be there waiting for us. And such a campaign, in spite of its success, would do little to help the more than 200,000 non-Status Natives in the country, who have little vested interest in either the Indian Act or in band land.

The alternative is to do nothing—which I’ll admit is far more comfortable and appealing—and leave the next seven generations, if there are that many left, to fend for themselves.

While Bill C-31 gives us a quick glimpse into the metaphysics of federal Indian-hating, the
Report of the Royal Commission on Aboriginal Peoples
, its reception, and its implementation provide us with a panoramic view.

The Royal Commission on Aboriginal Peoples was formed in 1991, with a blue-ribbon panel of four Aboriginal members and three non-Native members. The report was originally budgeted at $8 million for three years, but the research ran to five years at a cost of some $58 million. The commission visited 96 communities, held 178 days of hearings around the country on reserves, in community centres, and in jails where Aboriginal people—who are 4 percent of the Canadian population—make up over 18 percent of the federal prison population.

The final report ran to over four thousand pages contained in five volumes (six books), and was the most comprehensive and complete study of Aboriginal people, Aboriginal history, and Aboriginal policy that has ever been done in North America.

The last volume of the report contained 440 recommendations, which included recognizing that “Aboriginal people are nations vested with the right of self-determination,” that Aboriginal people in Canada enjoy “a unique form of dual citizenship,” that the government abolish the Department of Indian Affairs and Northern Development and replace it with “two new departments: a Department of Aboriginal Relations and a Department of Indian and Inuit Services,” that the government of Canada meet with First Nations governments and people to “meet the need of First Nations people for adequate housing within ten years,” and that “Representatives of Aboriginal peoples be included in all planning and preparations for any future constitutional conference convened by the government of Canada.”

The report went on to make recommendations in areas such as governance, health, housing, education, Native women’s rights, Métis rights, and economic development. The expectation was that the government would see the report as an opportunity to renew, amend, and restructure its relationship with Canada’s First Nations.

But that’s not what happened. Almost as soon as the report was released, it was placed on the shelf with all the rest of the reports from Royal Commissions—the Royal Commission on the Status of Women, the Royal Commission on Radio Broadcasting, the Royal Commission on Bilingualism and Biculturalism, the Royal Commission on Capital Punishment, the Royal Commission on the Electoral System—though, to be fair, some of the recommendations from these other Royal Commissions have actually been acted upon.

Probably the most embarrassing aspect of the Royal Commission on Aboriginal Peoples affair was the speed with which the report was buried. Alive. Perhaps it fell prey to the vagaries of politics.
The Mulroney Conservatives had commissioned the study, but the Chrétien Liberals were the party in power when the report was tabled. Or perhaps the reason is not to be found in the intrigue of partisan politics. Perhaps, as Helen explained to me, Royal Commission reports have become the Canadian alternative to action.

Since we’re looking at 1985 and beyond, we shouldn’t ignore the Meech Lake Accord, which was a set of amendments to the Canadian Constitution designed to encourage Quebec to join Canada’s “constitutional family.” Even though the Accord straddles both sides of our date, the critical meeting took place at Meech Lake, Quebec, in April of 1987, with the final text of the Accord being approved in June of the same year.

The Accord officially recognized Quebec as a “distinct society,” and it gave the province new and wide-ranging powers in the areas of immigration, Senate and Supreme Court appointments, and changes to national institutions. It also granted Quebec (and the other provinces) the ability to opt out of any program that the province did not feel was in its best interests.

But while the Meech Lake Accord dealt with many of Quebec’s concerns, it completely ignored Aboriginal people. The Accord called for a First Ministers’ conference to be held at least once a year to consider matters of national concern. Native leaders wanted a place at that table. They wanted official recognition of Indian societies as “distinct societies,” a term that Quebec had used successfully. They wanted acknowledgement of Native rights and aspirations. And they wanted guarantees that the veto and opting-out powers that the Accord granted the provinces would not adversely affect Canada’s First Nations.

Instead, Native people weren’t even mentioned in the document.
Canada was the confluence of three founding peoples, Aboriginal, English, and French, but the Accord acknowledged only the English and French streams.

The Meech Lake Accord had a three-year timeline that expired on June 23, 1990. All ten provinces had to ratify the agreement within that period or the Accord would die. By early June of 1990, eight of the provinces had voted to accept the Accord. Only two had not: Manitoba and Newfoundland.

In the Manitoba provincial elections of 1990, Gary Filmon’s Progressive Conservatives won control of the government, with thirty of the fifty-seven seats. The New Democrats captured twenty seats, and the Liberals limped in with seven. Support for the Meech Lake Accord was not unanimous, but the leaders of all three parties agreed to bring it to the floor for a vote.

Before there could be a vote, however, the Accord required public hearings. Public hearings at this late date would have pushed the debate beyond the deadline for ratification. So Filmon introduced a motion to bypass such debate and bring the Accord to the floor for a vote. The vote to dispense with public hearings had to be unanimous, and here the Meech Lake Accord ran into Elijah Harper.

Harper was Cree, a member of the Red Sucker Lake First Nation in northern Manitoba, and the first Treaty Indian to be elected in Manitoba. When the vote to forgo public hearings on the Accord was called, he stood up and said no.

No. No. No.

And with that, the Meech Lake Accord died.

Two years later, another package of proposed amendments to the Canadian Constitution, the Charlottetown Accord, was brought forward. This time, unlike with the Meech Lake Accord,
representatives of the Assembly of First Nations, the Native Council of Canada, the Inuit Tapirisat of Canada, and the Métis National Council participated in the public consultations.

The text of the Accord stipulated the rights of Aboriginal peoples to “promote their language, cultures and traditions and to ensure the integrity of their societies,” and acknowledged that Aboriginal governments “constitute one of the three orders of government in Canada.” And it also assured Native people that nothing in the Accord “abrogates or derogates from the aboriginal and treaty rights of the aboriginal peoples of Canada,” and that the people have “the inherent right to self-government.” The Accord even suggested the possibility of guaranteed seats for Aboriginals in a reorganized Canadian Senate.

Mind you, the “possibilities” that appear in government documents are generally euphemisms for “no way in hell.” And the “inherent right to self-government” is clarified later on by the provision that “No aboriginal law or any other exercise of the inherent right of self-government … may be inconsistent with federal or provincial laws that are essential to the preservation of peace, order and good government in Canada.”

Which makes perfect sense. Otherwise, Aboriginal Nations would be … sovereign.

Unlike the Meech Lake Accord, which was voted on at the provincial level, the Charlottetown Accord was decided by public referendum. And was soundly defeated. Even though this Accord had guarantees in it for Native people that Meech Lake did not, and even though Native leadership supported the agreement and spoke out in favour of the Accord, Aboriginal people, on the whole, voted against it.

I don’t know why, exactly. Perhaps, at this point in our relationship with non-Natives, we were not convinced that the government was here to help.

But it wasn’t the Aboriginal vote that killed Charlottetown. In 1992, voters in Alberta, British Columbia, Manitoba, Nova Scotia, Saskatchewan, and Quebec voted against it. Voters in New Brunswick, Newfoundland, Ontario, and Prince Edward Island voted for it. The Northwest Territories said yes. The Yukon said no. Still, it was a close vote: 49.6 percent in favour; 50.4 percent against.

The Accord did give Native people assurances that Meech had not, and this “generosity” might have played a small part in its defeat. I certainly heard people complain about “more money being wasted on Indians,” even though the Accord didn’t throw any dollars our way. However, most of the rancour that the Charlottetown Accord produced was centred on Quebec.

And after the dust of two failed Accords had settled, Native people in Canada were right back to 1985.

Almost forgot. Remember that land-claim dispute at Caledonia, Ontario, in 2006 that I mentioned earlier? Where Mohawks took over a housing development to protest the building of new homes on what the Mohawk considered to be their territory? That ended happily. In 2011, the Ontario government agreed to a $20-million settlement.

But not for the Mohawk.

No, the money went to homeowners and businesses adversely affected by the six-week blockade. That the settlement came just months before the provincial election when the sitting Liberal government was behind in the polls had, according to government
sources, nothing to do with the timing of the cash award. The concerns of the Mohawk and the land claim itself were shoved into a closet, yet another testament to North America’s willingness to ignore commitments and its capacity for self-deception.

In the United States, the post-1985 period was redeemed by the 1990 Native American Graves Protection and Repatriation Act, which required federal agencies and institutions to return Aboriginal cultural materials and human remains to the appropriate tribes. It was also marked by the settlement of a number of land claims—the Massachusetts Land Claims Settlement with the Wampanoag in 1987, the Washington Indian Land Claims Settlement with the Puyallup in 1989, the Seneca Nation Land Claims Settlement in 1990, the Mohegan Nation Land Claims Settlement in 1994, the Crow Boundary Settlement in 1994, the Cherokee, Choctaw and Chickasaw Nation Claims Settlement in 2002, and the Pueblo De San Ildefonso Claims Settlement in 2006, just to mention a few. However, more than anything else, the period was dominated by the rise of Native gaming, and depending on your point of view, gaming could be seen as economic enterprise or economic war.

It began simply enough in 1972, with a property tax bill that Itasca County sent to Russell and Helen Bryan, a Chippewa couple living on the Greater Leech Lake Indian Reservation in northern Minnesota. The Bryans refused to pay the bill, arguing that the mobile home they owned was on tribal land. The court ruled in favour of Itasca County, and the case was appealed to the Minnesota Supreme Court, where the lower court ruling was upheld.

In due course, the case wound up in the lap of the U.S. Supreme Court, where Justice William Brennan, Jr., wrote the unanimous
decision. The simple version is that states did not have the right to tax Indians who lived on federal reservations. As well, the court held that states lacked the authority to regulate Indian activities that took place on Indian reservations. The Bryan case was not about whether Indian tribes could run gambling casinos, but the Brennan decision did open the door to this possibility, and when this basic concept of Indian self-determination was tested in two other major cases,
Seminole v. Butterworth
in 1981 and
California v. Cabazon Band of Mission Indians
in 1987, the matter was settled. Tribes now had the right to develop gambling on tribal land.

Of course, not everyone was happy. State governments were furious, in part because of the loss of control over land that they felt was their domain, and in part because of the lost tax revenues. National gambling interests had a massive stake in places such as Atlantic City and Las Vegas, and saw the advent of Native gambling as direct competition to their fiefdoms. Donald Trump, looking after his own profits, was particularly vocal in his opposition to Native gaming.

The idea that Native people had something resembling agency and independence was just too much to bear, and almost immediately, state governments, along with citizen groups opposed to gambling of any sort, the gambling cabal itself, the Bureau of Indian Affairs, and Congress all climbed into bed together to figure out a way to get around the Brennan decision.

After all, the notion of Indians in charge of themselves and their businesses was antithetical to the American ideals of democracy, fair play, and free enterprise.

What happens next is complicated, illegal, and sleazy. But, given the history of Indian affairs, not unexpected. The states,
along with the federal government and private interests, made it quite clear that while tribes might have the legal right to run gaming enterprises on their reservations, that right could be tied up in the courts until hell froze over. What we need, tribes were told by the powers that be, is a compromise.

Compromise is a fine word. So much more generous than blackmail.

In 1988, Congress formally recognized the right of Native Americans to conduct gaming operations with the passage of the Indian Gaming Regulatory Act (IGRA). The states supported the Act because it required the tribes to negotiate with the states concerning the games that were to be played. And while the Act allowed that tribal governments were the sole owners and primary beneficiaries of gaming, the reality was that the tribes were forced to sign compacts guaranteeing the states a generous portion of the money Indians made from the slots and the tables.