The Inconvenient Indian (29 page)

One of my historian friends, who wishes to remain anonymous, told me the story of his time on the rivers of the Northwest assisting some of the tribes with their fishing protests. He said that, after a while, the people would go out on the river with their worst boats and their worst nets. As soon as the wardens confiscated the equipment and were busy dragging the derelict boats and nets back to town, the Natives would bring out their good boats and their good nets and continue fishing.

The situation on the rivers became increasingly violent. Boats rammed each other. There were beatings. Folks began shooting at each other. On September 9, 1970, state law-enforcement officials raided a large fishing camp on the banks of Puyallup River. Sixty people were arrested, and the fishing village was bulldozed. No one was killed, but that was the only good news.

And, as one might expect, the question of treaty rights went back to court, this time to the District Court for the Western District of Washington.
United States v. State of Washington
. If you’re surprised that the U.S. government sued the State of Washington on behalf of Native people, don’t be. One of the legal issues in the fishing wars was federal jurisdiction versus state jurisdiction. Treaty land, let’s not forget, was federal land.

The arguments in
United States v. State of Washington
were the same as they had been for the last hundred years. On the one hand, it was argued, the treaty of Medicine Creek gave Indian people the right to fish. On the other hand, it was argued, the State of Washington had the right to regulate its fishery, regardless of any treaty. And when all the motions had been made and all the points
had been argued, the district court, under Justice George Boldt, ruled not only that Indians had a guaranteed right to fish, but that they had the right to 50 percent of the harvestable fish.

The sound you just heard was the State of Washington passing out.

In the end, no one won much. The salmon fishery had already been in decline. And that decline has continued. Offshore trawlers continue to take the lion’s share of the salmon. The state, the sports fishery, and the Natives have come to some tentative agreements to try to conserve the salmon, but with the new threat from fish-farm diseases and the lack of regulation or responsibility in that particular industry, a once-vibrant fishery may be on its way to extinction.

Five.

You like golf? I do.

The Shaughnessy Golf and Country Club is one of the premier clubs in Vancouver. It’s a private club, so unless you’re a member or know a member, you can’t play. The club had its beginnings in 1911 as the Shaughnessy Heights Golf Course, with a nine-hole course that was expanded to eighteen holes the following year. The club didn’t own the land. The sixty-seven acres that encompassed the course had been leased from the Canadian Pacific Railroad.

In 1956, the CPR began making noises that it wanted its land back, and the club went looking for another site. And in 1958, they found it. A lovely 162-acre site overlooking the Fraser River and the Strait of Georgia. Views, views, views. The only problem was that the land belonged to the Musqueam Nation.

Actually, that wasn’t really a problem. Since all Indian land and all Indian business was handled by Ottawa, the club leadership simply got together with the resident Indian agent, and in a series of mostly private meetings, negotiated a long-term lease for the site.

The Musqueam had had little or no input regarding the lease. They weren’t given a copy of the agreement, and they had no idea what the exact terms were until 1970, when Graham Allen, a Department of Indian Affairs employee, showed the lease to Chief Delbert Guerin.

Guerin and the Musqueam suspected that the golf club had got a bargain, so they weren’t all that surprised to discover the deal had actually been a steal. While the land on which the golf course sat had originally been appraised at a rental price of $53,450 per year, the government gave the club a seventy-five-year lease for $29,000 a year and locked that amount in for the first ten years with no possibility of an increase. For the second fifteen years, any increase on the lease could not exceed 15 percent.

There’s nothing like a government that’s here to help. Nor was the government finished helping the Musqueam. In 1965, Ottawa, on behalf of the band, signed a development deal with a private developer for about forty prime acres of Musqueam land. The parcel was turned into a subdivision of seventy-four executive building lots, which were rented to non-Natives for ninety-nine years. Leases were set at about $400 per year for each of the 10,000-plus square-foot lots, and the lease prices frozen for the first thirty years with no incremental increases.

Four hundred dollars a year for a one-hundred by one-hundred-foot building lot in the exclusive Point Grey area of Vancouver. Twelve thousand dollars for the first thirty years.

For thirty years, the Musqueam watched as the land around the leases skyrocketed in value, and for thirty years the Musqueam were unable to realize a fair share of that market increase. So,
when the leases came up for renewal in 1995, the Musqueam tried to raise the rent to market value.

Human nature is a rather predictable thing. The non-Natives who had been paying next to nothing for their leases were angry that the rent was going to be raised and furious that the increase was going to be to market value. One of the arguments against this hike was that the houses increased the property value, a somewhat spurious argument since the real value was in the land and its location and not what was on it.

Just so we keep things straight, any other landlord or corporation would have raised the rates to market value with no questions asked. That’s Real Estate 101. But the leases were on Indian land, and, following the lead of Ottawa, the homeowners decided that Indian land was different from non-Indian land. Indian land, they argued, could not be valued in the same way as non-Indian land. It was unfair for their rates to be raised, they also argued, since they had no say on the Musqueam Council and could not vote in Musqueam elections, a creative variation on “no taxation without representation.”

A Canadian friend of mine owns a condo in Costa Rica. He pays taxes on his property. He pays condo fees. He doesn’t get to vote in Costa Rican elections. Another Canadian friend owns a small house in Fort Myers, Florida. He pays property taxes. He doesn’t get to vote in that state, either.

Chief Ernest Campbell, in a
Vancouver Sun
interview, reminded everyone that, “For the first thirty years, the tenants paid rents at very low fixed amounts. In 1995, tenants would have paid more to rent a parking stall downtown than for their home’s lease. Annual rents were in the range of $375 to $400, or $31.25 to $33.33 per month.”

Low rents or no, the homeowners stopped paying rent altogether, hired a lawyer, and went to court.

There was a series of court decisions, one in 1997 and one in 1998, but the one that counted was the 2000 review by the Supreme Court of Canada, which concluded that Musqueam land, for the purposes of lease agreements, was worth about 50 percent of adjacent non-Indian land. At the same time, the court also suggested that if the band were to sell the land, it could be appraised at full market value.

So, in essence, what the court said was that land held by First Nations was worth half the value of the same land held by non-Natives.

Still, good things come to them that waits. The lease on the Shaughnessy Golf and Country Club ends in 2033, while the leases on the estate lots will be up in 2064. I won’t be around when that two hundred acres of prime Vancouver real estate is returned to the Musqueam, so I don’t know what they will decide to do with the land, but I’m sure Ottawa will help the Musqueam come up with something.

Six.

And while we’re waiting, why don’t we go for a hike?

How about New Mexico? The population density is sixteen people per square mile, so you won’t be bumping into neighbours. The state has the third-highest percentage of Indians after Oklahoma and Alaska. Among other things, the state is known for sandhill cranes, Native art, Carlsbad Caverns, balloon festivals. And atomic bombs.

It’s also home to the Carson National Forest, a park in the northern part of the state that covers over 1.5 million acres and
contains Wheeler Peak, the highest mountain in New Mexico. The park was created by Theodore Roosevelt in 1906, and, to do so, his administration confiscated about 50,000 acres of Taos Pueblo Indian land.

No treaty. No payment. No nothing.

For Roosevelt, the land he took was simply land. Rocks, trees, lakes, rivers. For the Taos Pueblo, it was far more than that. When Roosevelt appropriated Taos land for the national forest, he took Ba Whyea, or Blue Lake, a remote mountain lake that was and is sacred to the Taos people. Oral tradition has it that the Taos tribe was created out of the waters of the lake, and the area around the lake has always been part of the tribe’s ceremonial life.

Nevertheless, the park was created, and in 1916, the Forest Service ran a trail up to the lake and stocked the lake with trout for the pleasure of backpackers and tourists. Ten years later, the service built a cabin near the lake for the use of the park’s forest rangers.

The Taos protested the taking of the land and the lake. They protested opening the area to public recreation. Without much success.

In the 1920s, the Pueblo Lands Board, which had been established by the Pueblo Lands Act of 1924, awarded the Taos Pueblo $297,684.67, which was the 1906 valuation of the land that had been taken. The Pueblo countered, offering to waive any cash compensation in exchange for a clear and exclusive title to Blue Lake and the land around it.

The Forest Service objected to the proposal, and that was the end of that.

In 1933, with the help of the Commissioner of the Bureau of Indian Affairs, John Collier, who was the driving force behind the 1934 Indian Reorganization Act, the Taos were able to get a
statute passed for a fifty-year permit that was supposed to allow them year-round exclusive use of the lake and the area around the lake. The Forest Service was none too pleased with this arrangement, and, like many bureaucracies, was able to stall and delay and postpone. Finally, about seven years after the fact, the service reluctantly issued a permit that allowed the Taos Pueblo exclusive use of the lake for three days in August.

This wasn’t a solution so much as it was an insult.

In 1951, the Indian Claims Commission, which had been set up to hear and adjudicate Native claims, affirmed that Blue Lake had been taken illegally. But predictably, while the commission had the power to hear cases and to recommend monetary compensation, it did not have the power to return land to any tribe. In fact, it was expressly forbidden even to consider the return of land.

But the Taos hadn’t changed their minds. They weren’t interested in money. They wanted the lake and the land back. Taos elder Juan de Jesus Romero summed it up nicely. “If our land is not returned to us, if it is turned over to the government for its use, then it is the end of Indian life. Our people will scatter as the people of other nations have scattered. It is our religion that holds us together.” He might have gone on to say that Taos religion was in the land and the land in the religion, but for him, that would have been stating the obvious.

The Taos continued pushing for the return of the land. Pushing, pushing, pushing. Sixty-four years of pushing.

And then, in 1970, after more pushing, President Richard Nixon signed House of Representatives Bill 471 into law, which gave back to the Taos people trust title to 48,000 acres of their land including Blue Lake, and 1,640 acres surrounding the lake.

Sixty-four years.

These six instances do no more than frame the issue of Native land. I have not mentioned the Quinault or the Menominee or the Lumbee or the Siletz and Grand Ronde tribes or the Klamath or the Passamoquoddy or the Blackfoot or the Pit River or the Havasupai or the Yakama at Warm Springs or the Lubicon Lake Cree, nor have I listed any of the hundreds of land claim cases that are currently outstanding in Canada and the United States.

Earlier in this book, I hinted that I didn’t think that legal action was going to provide a solution to the problems that centuries of North American Indian policy and action had created. I suggested that the legal gauntlet created by legislation and the courts better served the powerful and the privileged than it did Native people.

I still believe this.

But I do have to admit that, in spite of such impediments, Native people in the late twentieth and early twenty-first centuries have begun to find moments of success within the legal systems of North America. Perhaps, after all this time, the laws of the land will finally ride to the rescue and we will all live happily ever after.

SINCE
The Inconvenient Indian
is set in North America, and since North Americans love happy-ever-after endings, I thought I’d try to close the book on an optimistic note. So, I asked Native friends who keep abreast of current affairs if they’d noticed any encouraging signs that Native-White relations were moving in positive directions. I wasn’t expecting that we’d be talking about outright victories or triumphs for, in the tumble of Native history, in the ongoing pursuit of Native sovereignty and self-determination, such things don’t yet exist.

That being said, two contemporary topics came up in our running conversations with some regularity: the Alaska Native Claims Settlement Act and the Nunavut Land Claims Agreement.

But before I tackle the two largest land-claim settlements in North American history, I want to take a moment and begin with another affair that was widely publicized at the time, though now mostly forgotten. Unlike the Alaska Native Claims Settlement Act or the Nunavut Land Claims Agreement, the creation of the Gwaii Haanas National Park and Haida Heritage Site was not a land-claim settlement. It was one of those rare occasions when Aboriginal concerns, environmental ethics, political will, and good sense came together in common cause.