The Inconvenient Indian (24 page)

That Mayor Bloomberg. Such a funny guy. Reminds me a lot of John Wayne in
The Searchers
.

The American historian David Wilkins is direct and to the point. “The relationship,” says Wilkins, “between American Indian tribes and the U.S. federal government is an ongoing contest over sovereignty.” And while there are no clear winners at this moment, the reality is that, no matter what the historical and legal precedents, neither Canada nor the United States has much enthusiasm for recognizing any varietals of Native sovereignty. Both governments are concerned with cutting the cost of Native Affairs. They
are certainly concerned with reducing the Indian estate. But they have shown little interest in prolonging the authority of treaties, and none whatsoever in encouraging stand-alone sovereign or semi-sovereign nations within the borders of either country.

Ask Quebec about that one, if you don’t believe me. Or take a refresher course on the American Civil War.

Indeed, one of the contentions currently in vogue is that Native people in North America need to be rescued from reserves and reservations, the Indian Act, the Department of Indian Affairs and the Bureau of Indian Affairs. Aboriginal people have suffered unduly from government interference and bureaucratic oppression, so the thinking goes, and the only solution is to abrogate treaties, eliminate federal guarantees, divide First Nations land into fee-simple blocks, and allow Native people to participate freely in the economic markets that western capitalism has created.

Tribes are obsolete forms of governance. Treaties are an obstacle to Native—non-Native
rapprochement
.

Rapprochement
. There’s nothing like a French word thrown in every now and then to give an argument
puissance
.

This is the twenty-first century, after all. We no longer tolerate child labour (family-owned convenience stores don’t count). We have done away with public executions. Capital punishment is conducted humanely in state-approved facilities. Women have gained control of their reproductive rights. For the time being, at least. And having made these strides, why should individual enterprise be limited or western civilization’s advance be hindered by ancient agreements and promises?

Slade Gorton, the Washington State politician, made a political career out of pursuing a termination vendetta against the
tribes in his state and around the nation. In 1998, Gorton sponsored a Senate bill, which he disingenuously called “The American Indian Equal Justice Act.” The legislation was a direct attack on tribal sovereignty. Item 8 under “Findings” argued that the idea of Native sovereignty “frustrates and provokes social tensions and turmoil inimical to social peace,” while item 9 called on Congress to do away with Indian sovereignty because “no government should be above the law.”

The New York Times
was not amused. “Senator Slade Gorton,” the article said, “has once again declared war on the Indians. Having failed last year to undermine the concept of Indian sovereignty with a sneaky amendment to an appropriations bill, the Washington State Republican has now offered a freestanding bill, erroneously labeled the ‘American Indian Equal Justice Act,’ that is a reprise of last year’s rider.”

To his credit, Gorton did not stand with the angry mobs who gathered in Wisconsin in 1989 to throws rocks at Indians and shout racial epithets, including old favourites such as “timber niggers” and newer creations such as “welfare warriors,” nor did he hold up one of the signs that said, “Save a Fish, Spear a Squaw, Save Two Fish, Spear a Pregnant Squaw.”

Still, he probably agreed with Washington State Senator Jack Metcalf’s 1983 Senate Joint Memorial that urged Congress to “abrogate all existing treaties,” and the resolution that John Fleming introduced at the 2000 Washington State Republican convention that called for the termination of all tribal governments in the state. Fleming bragged that if the tribes resisted such an effort, “then the U.S. Army and the Air Force and the Marines and the National Guard are going to have to battle back.” You
might want to write Fleming off as a clown and his resolution as a piece of political rhetoric, but the resolution passed on a vote of 248 in favour and 2 against and became part of that state’s Republican Party platform.

One of neo-termination’s strongest supporters is Thomas Flanagan, a University of Calgary Political Science professor and author of
First Nations? Second Thoughts
and
Beyond the Indian Act
. Flanagan has little patience with treaties and Native Status, and has argued vigorously, in his role as educator and as an advisor to Prime Minister Stephen Harper, for the dissolution of Indian reserves and federal Status. “Call it assimilation, call it integration, call it adaptation,” says Flanagan, “call it whatever you want: it has to happen.”

Adherents to Flanagan’s particular vision for Indians in the twenty-first century are adamant that Aboriginals should not be entitled to self-determination to any degree, in any form, nor should they receive federal funding or qualify for special tax exemptions. Closing down the Department of Indian Affairs and the Bureau of Indian Affairs, they contend, would save billions of dollars a year. But most of all, these latter-day terminators want tribal lands taken out from under the protections of treaties, turned into fee-simple parcels, and turned loose on the prairies.

Where the properties can be picked off by real estate agents or shot at from moving trains.

All else considered, the main attraction of this line of reasoning is that it is simplistic and requires no negotiation or compromise. Let’s get rid of Indians as a legal entity, and let’s do it now.

But why would we want to repeat the mistakes of the past? Why drag a failed policy such as termination out of its grave, when
history has already shown us that this particular strategy was an utter disaster? For Indians
and
for Whites. Why argue for closing the Department of Indian Affairs or the Bureau of Indian Affairs, or for dismantling the Indian Act, when the problem is not simply the legislation but how it has been interpreted and employed?

Speaking specifically of the Indian Act, Harold Cardinal, in his 1969 best-seller
The Unjust Society
, said, “We do not want the Indian Act retained because it is a good piece of legislation. It isn’t. It is discriminatory from start to finish. But it is a lever in our hands and an embarrassment to the government, as it should be. No just society and no society with even pretensions to being just can long tolerate such a piece of legislation, but we would rather continue to live in bondage under the inequitable Indian Act than surrender our sacred rights. Any time the government wants to honour its obligations to us we are more than ready to help devise new Indian legislation.”

In 2010, Assembly of First Nations National Chief Shawn Atleo echoed Cardinal’s earlier concerns about the Indian Act and began a running discussion on how the Act might be abolished and what would replace it. Atleo points out, quite rightly, that the treaties and the body of Aboriginal rights that have been formally recognized under international law and under section 35 of Canada’s 1982 Constitution Act could form a usable structure for a working relationship between First Nations and the federal government. While I haven’t heard him say so, this is the same framework that was used in the early days, before the Indian Act and assimilation came along.

It’s a great idea, but I don’t think it’s going to happen. Treaties and Native rights have one fatal flaw: they are predicated on
Aboriginal sovereignty, and while Ottawa and Washington can imagine a world in which federal responsibility for Indians has been eliminated, neither will countenance any deal that revisits the question of Native sovereignty. It took both countries long enough to bury the concept. They’re not about to buy a shovel and dig it up.

None of this debate around Native rights, self-determination, and sovereignty is particularly new. Even Ely S. Parker (Seneca), the first Native American to be Commissioner of Indian Affairs, had concerns about Native sovereignty. In his 1869 report, Parker offered that “the Indian tribes of the United States are not sovereign nations, capable of making treaties, as none of them have an organized government of such inherent strength as would secure a faithful obedience of its people in the observance of compacts of this character.”

The year before Parker wrote his report, the U.S. government had signed the Treaty of Fort Laramie with the Lakota, which guaranteed them the exclusive use of the Black Hills. Nine years later, after gold had been discovered, Parker watched as non-Natives flooded into the Black Hills, watched as the government stood by unable to “secure a faithful obedience of its people in the observance of compacts of this character.” In 1877, Parker was on hand when Washington unilaterally confiscated the Black Hills and turned the land over to the White miners and settlers.

Parker died in 1895. By then, the United States had become quite efficient at breaking the agreements and the promises it had made with Native people. Perhaps by then Parker realized the irony of his earlier observation. Perhaps he understood that sovereignty had little to do with the ability of a nation to control its people.

The wonderful irony of Aboriginal sovereignty is that if we collected the Indian Act, the treaties, the Canadian and U.S. constitutions, the Canadian Charter of Rights and Freedoms, the U.S. Bill of Rights, all the Supreme Court decisions, along with the cases that the Canadian Human Rights Commission has generated, we would have a composite and contradictory manuscript much like the Bible. A manuscript in which both saints and scoundrels can find satisfaction and validation for contrary principles and beliefs in the same passage, where they can find a precedent for every comfort and every larceny.

But perhaps discussing sovereignty as an absolute concept is a waste of time. Perhaps we should concern ourselves instead with practical sovereignty and ask the question, what part of sovereignty is critical to Aboriginal Nations in North America? Each Nation will, of course, have to answer that for itself. However, seeing as my advice is free and as I’m more than happy to give it, I suggest that we concentrate on the issues of tribal membership and resource development. I’d even go further and propose that these two topics may well be two of the more important issues of the twenty-first century for Aboriginal people in North America.

Membership in an Aboriginal Nation is a somewhat bewildering combination of federal legislation, federal treaties and agreements, blood quantum, and nineteenth-century enumeration lists, along with tribal regulations and customs. In Canada, the Indian Act, along with the treaties, sets some of the terms of reference for band membership, while in the United States, membership, in part, is based on federal recognition of a tribe and the lists that the government created to keep track of Aboriginal people.

In Canada, as we saw earlier, Native people are divided, more or less, into three categories: Status Indians, Treaty Indians, and non-Status Indians. In most instances, Status Indians and Treaty Indians are the same. Legal Indians. Non-Status Indians are simply not Indians, or, more accurately, not Legal Indians.

In the United States, Legal Indians are members of a tribe that is recognized by the federal government, while the rest of Native people in that country are, like their counterparts in Canada, not Indians. In fact, with the passage of the Indian Arts and Crafts Act in 1990, Native artists who produce and sell their work cannot call themselves by their tribal affiliation unless they are official members of the tribe. To do so is to risk fines of up to $250,000.

The Arts and Crafts Act was designed to stop the trade in counterfeit “Native art” that unscrupulous dealers were bringing in from places such as Japan, Taiwan, Korea, and India, and in this regard, the act was a welcome law. But the unfortunate side effect of the act was to “terminate” a great many Native artists who were Indians by blood but who, for a variety of reasons, were not official members of a tribe. Many of them had home communities. Many of them had blood relatives living in those communities. Yet under the terms of the act, they could be prosecuted for claiming they were who they were because, legally, they weren’t.

Jimmie Durham is one such artist. He’s Cherokee, but because he can’t legally say he’s Cherokee, he’s not. I probably shouldn’t have mentioned this since it may be illegal for me to … you know, say this. Durham himself is somewhat circumspect about the issue of identity. “I’m a full-blood contemporary artist,” says Durham, “of the sub-group (or clan) called sculptors … I am
not a ‘Native American,’ nor do I feel that ‘America’ has any right to either name me or un-name me. I have previously stated that I should be considered a mixed-blood: that is, I claim to be a male but in fact only one of my parents was male.”

Today, almost all Aboriginal Nations control their memberships. While the rules and regulations differ from tribe to tribe, band to band, the general requirement is that a blood relationship exist between a registered Indian or an ancestor on the tribal rolls and an individual seeking membership. Sometimes there is a blood-quantum requirement as well. The Blackfoot in Alberta and the Comanche in Oklahoma, for example, currently require that, in addition to a blood tie, their members be at least one-quarter blood. But they could, if they wished, lower that blood-quantum requirement or dispense with it altogether. This is what the Ottawa, Seminole, Wyandot, Creek, Choctaw, and Chickasaw have done. For these tribes and others, any descendant of a tribal member is also entitled to be a member of the tribe, regardless of blood quantum.

But there can be other factors as well. The Cherokee, for example, have fifteen tribal rolls that were created between 1817 and 1914. A great many Cherokee can trace their family back to a name on one of these rolls, but unless your ancestor appears on the 1924 Baker rolls that cover the Eastern Cherokee or the 1898–1914 Dawes-Gaion-Miller rolls that cover the Western Cherokee, you cannot qualify for membership in one of the three federally recognized Cherokee tribes: the Eastern Cherokee, the Western Cherokee, and the United Keetoowah Band. Neither the Baker nor the Dawes-Gaion-Miller rolls are a comprehensive or complete compilation of Cherokee families, but
these rolls are the only sources that the tribe uses for determining who can be a citizen of the nation.