GOVERNANCE A ‘literacy test’ for Indigenous government? Tony Penikett n January 27th, 2011, Canada’s minister of powers fought for the rest of North America. The Aboriginal affairs, John Duncan, told CBC British, Dutch, French and Spanish all actively NOorth that the Nunavut Territory, a jurisdiction sought allies among Indian nations who were too whose population is 84 per cent Inuit, was “not at the weak to fight off the invaders, but too strong to be stage of readiness” to assume responsibility for man- ignored. After British and Iroquois forces defeated aging their lands—lands they have occupied for cen- the French army at the Battle of the Plains of Abra- turies. With this brief intervention, the minister ham in 1759, and the conclusion of the Seven Years' joined a 490-year-old debate about the capacities of War, France signed the Treaty of Paris in 1763, ced- Indigenous peoples to govern themselves and their ing all lands east of the Mississippi to the British. lands—a debate dominated, until recently, by privi- This outcome angered former French allies, leged white males such as the minister and myself. among them the Ottawas. An Ottawa warrior chief, The debate began after 1519, when conquista- Pontiac, began to preach resistance to the British oc- dor Hernán Cortés attacked and destroyed Tenochti- cupation of tribal lands among the Indian nations of tlán, then the world’s largest city and capital of the the western great lakes region. In May 1763, Pon- Aztec Confederacy. Nicolo Machiavelli, a contem- tiac’s army quickly captured nine British forts. With porary of Cortés, observed in The Prince that where Pontiac in mind, the British issued the Royal Procla- city states have a strong history of self-government, mation of 1763, which promised that the Crown the best thing is to destroy them completely. Ever would only obtain lands for settlement through pub- since, colonizers across the Americas have criticized licly negotiated treaties with Indian nations. With Indigenous governments as small, weak and ineffec- that, Britain had recognized Indian governments and tive, while dismantling their institutions, communi- Aboriginal title to their ancestral lands. Eventually, ties, and nations. the proclamation would lead to the negotiation of al- In 1550, Charles V summoned a council of four- most 400 Indian treaties in the United States and teen jurists to Valladolid, Spain, to inquire into the Canada. legitimacy of the Spanish conquest in the Americas Meanwhile, intellectuals continued to pass judg- and the capacities of the “Indians.” Theologian Dr. ment on the character of Indigenous governments. Juan Ginés de Sepúlveda told the council that “[i]n Thomas Hobbes wrote in Leviathan that the American his conquest of the Mexico Indians, Hernán Cortés Indians had only the government of “small families.” definitively proved the superiority of the Spaniard.” But Benjamin Franklin so admired the Iroquois Con- The Indians were an inferior race, Sepúlveda argued, federacy that he borrowed their invention, federal- whom Spain had every right to Christianize and, if ism, for the U.S. constitution. necessary, to do so by force. In response, Bartolomé Treaties signed by the Cherokee Nation in 1785 de las Casas, the retired bishop of Chiapas—who and in 1791 failed to prevent harassment from the had for decades been petitioning the Spanish crown Georgia State Legislature. In 1831, the Cherokee on behalf of Indigenous Mexicans—spoke for five asked the U.S. Supreme Court to recognize them, the days, arguing that long before the Spanish invasion, signatories of international treaties, as a “foreign Indigenous Americans had great cities, kings, judges, state.” In Cherokee Nation v. Georgia, Chief Justice John and laws. Ultimately, the council could not reconcile Marshall ruled against them stating that “[t]heir re- the opposing views of Las Casas and Sepúlveda, and lation to the United States resembles that of a ward the conquest continued. Nevertheless, the hearing at to his guardian.” Valladolid in 1550 stands as a remarkable moment In a later Cherokee case, Worcester v. Georgia, Mar- in the historical debates about Indigenous capacities. shall came down on their side: “the Cherokee nation After the conquest of Mexico, the European then is a distinct community, occupying its own ter- 32 Northern Public Affairs, Spring 2012 s r i a f f A c i l b u P n r e h t r o N : t i d e r c o t o h P ritory, with boundaries accurately described, in which When 12,000 Cherokee survivors landed in the laws of Georgia can have no force.” The Chero- Oklahoma, they soon created colleges, courts and a kee Nation might be a ward of the United States but bicameral legislature. However, in 1885, disaster vis- its government was not subordinate to the state of ited again in the person of Massachusetts senator Georgia’s. Indeed, “the settled doctrine of the law of Henry Dawes. “They have got as far as they can go, nations is that a weaker power does not surrender its because they own their land in common,” Dawes independence—its right to self-government, by asso- wrote of his visit. Once Congress passed the “Dawes ciating with a stronger power, and taking its protec- Act,” government began to impose a European model tion.” of land titles by subdividing tribal lands into individ- In a message to Congress in 1833—much like ual agricultural plots. Based as it was on tribal land Sepulveda’s argument two hundred years earlier— ownership, the new law effectively undermined tribal President Andrew Jackson made it clear that he re- government. As President Theodore Roosevelt later garded Indians as inferior beings and Indian treaties put it in his First Annual Message in 1901, the Dawes Act as an “absurdity.” Jackson advocated “removal” or was “a mighty pulverizing engine to break up the ethnic cleansing, so he sided with Georgia’s settler tribal mass.” administration against the Cherokee and the Mar- Three quarters of a century later, in 1971, Con- shall court. His soldiers removed the Cherokee west gress passed the Alaska Native Claims Settlement Act, to Oklahoma’s Indian Territory. Four thousand which gave Alaska’s natives a billion dollars and cor- Cherokees died on the "Trail of Tears." Between porate title to 178,000 square kilometres of land. In 1815 and 1860, American presidents signed, and a statement to the Senate Committee on Interior and then violated, dozens of Indian treaties. Insular Affairs in 1970, Senator Scoop Jackson, the As it opened up its western regions with a law’s sponsor, argued that he did not want to see transcontinental railway, Canada negotiated a series racial “enclaves” established in Alaska, so Congress of numbered treaties. At Fort Carlton in 1876, Cree outlawed tribal governments and mandated state- chiefs met Canada’s treaty commissioners to negoti- regulated native corporations—the very imposition ate Treaty 6. It was an event full of “international” the Cherokee had fought in Georgia. ceremony with what, constitutional scholar Peter On arriving at treaty tables in 1973, following Hogg later described as “a certain measure of solem- the Supreme Court of Canada's decision in Calder v. nity”. Ironically, that same year, Parliament passed British Columbia (Attorney General), the Nisga'a land an Indian Act that completed the transformation of rights case, Northern Indigenous groups rejected Indian nations from allies of Britain and France into Alaska’s corporate model. Instead, Yukon and wards of the Canadian state. Nisga’a chiefs chose a tribal model called Aboriginal Nunavut Legislative Assembly and Government of Canada building, 2008. self-government. The 1999 Nisga’a treaty recognized digenous peoples there remain serious unresolved is- tribal title to 1,992 square kilometres of land and sues such as land claims implementation and re- guaranteed $190 million of capital. The Nisga’a re- source management devolution versed the historical trend by negotiating province- Over the last forty years, Canada has negotiated like self-government powers into their treaty. twenty land claim agreements with Aboriginal peo- Denouncing “raced-based” government, oppo- ples across the country's Northern regions. It created sition leader Gordon Campbell asked the B.C. a new territorial government in the eastern Arctic, where the Nunavut Land When the Aboriginal affairs minister said Nunavut was not Claim Agreement made the Inuit there the “ready,” was he making a general comment about the commu- largest private nity’s intellectual or moral capacity to exercise jurisdiction over landowners in the world, with title to lands for which they were stewards long before Canada existed? 350,000 square kilo- metres. Confident of a Or was he passing judgment on the administrative capacities of continuing majority in the Nunavut government? the new territory, the Inuit of Nunavut Supreme Court to declare the treaty unconstitu- opted for a territorial public government rather than tional. Rejecting Campbell’s argument, the court said the tribal alternative. Despite the 1993 land claims in Campbell et al. v. British Columbia that self-govern- settlement and the creation of Nunavut in 1999, Ot- ment “rights cannot be extinguished, but they may tawa still controls 80% of territory's lands while en- be defined [given content] in a treaty. The Nisga’a ergy developments and climate change jointly Final Agreement does the latter expressly.” Not to be threaten the Arctic environment. For Nunavummiut deterred, on becoming premier, Campbell appealed these three facts create great uncertainty. in the court of public opinion with a province-wide When the Aboriginal affairs minister said referendum on Aboriginal self-government. Nunavut was not “ready,” was he making a general Campbell’s 2002 referendum proposed that, comment about the community’s intellectual or “Aboriginal self-government should have the charac- moral capacity to exercise jurisdiction over lands for teristics of local government, with powers delegated which they were stewards long before Canada ex- from Canada and British Columbia.” Here, the isted? Or was he passing judgment on the adminis- Yukon had something to teach British Columbia.