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 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-

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: 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 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 's decision in Calder v. nity”. Ironically, that same year, Parliament passed (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, 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 , 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. As trative capacities of the Nunavut government? I argued at the time, the vital interests of Indigenous The minister’s officials frequently question Yukoners lie not in the limited municipal works, dirt Nunavut’s capacity to administer its lands and re- roads and water trucks but in the lands and waters sources. Specifically, they point to the dearth of Inuit around their villages. The treaties negotiated by exploration geologists, mining engineers and char- Yukon between 1973 and 1993 retain tered accountants in the Government of Nunavut’s some tribal lands, mineral rights, taxation and land- ranks. Nunavut is only thirteen years old, but in the use planning powers, and co-management of fish many decades of the department’s absolute authority and game resources. Canadians think of these pow- over the Northern territories, how many Inuit geol- ers as “provincial”—and that's the problem, espe- ogists, mining engineers or chartered accountants did cially for the provinces which are even less willing to the department train and hire? share jurisdiction than federal ministries. The answer is none. Nunavut Tunngavik Incorporated, the Inuit land rogress towards the restoration of Indigenous claims body, has a billion-dollar lawsuit against Ot- government has therefore been painfully slow. tawa seeking redress for this situation. One official APt the current rate, British Columbia will still be ne- recently mentioned low graduation rates and high gotiating treaties in the 23rd century. Twenty years suicide numbers as two reasons to doubt Nunavut’s after Yukon First Nations negotiated Canada’s first capacity for managing the territory’s lands and re- tribal self-government agreements with the territorial sources. This is a strange argument because the sta- and federal governments, they still represent the ma- tistics for both high-school graduation and suicide in jority of all such agreements in the country. The Aboriginal communities across Canada are alarming. Supreme Court of Canada has yet to declare its po- Half of all Aboriginal learners drop out of high sition on Indigenous government. Also, for Arctic In- school. For young Aboriginals, the suicide rate is six

34 Northern Public Affairs, Spring 2012 times the rate of non-Aboriginal youth. So, who in eral system that cares more about accounting than government carries responsibility for the shameful accountability. Certainly, the minister’s recent deci- Aboriginal dropout and suicide rates? Given the gen- sion to address a housing crisis in Attawapiskat by ap- eral absence of Aboriginal self-government in pointing a financial administrator from Winnipeg Canada, surely it is the Aboriginal affairs department would reinforce this impression. and, finally, its minister. Despite huge cultural differences between south- Conciliator Thomas Berger recommended fed- ern and Northern governments, Ottawa appears de- eral funding for a more culturally appropriate edu- termined to impose federal governmental norms or cation system to improve Nunavut’s graduation in a form of “administrative assimilation.” Indeed, the 2006, but Ottawa balked. A major study on suicide minister’s department seems to see jurisdiction as a by two UBC scholars, Michael Chandler and reward for good administration, somewhat like a dri- Christopher Lalonde, shows that Aboriginal commu- ver's test. But what are the questions and which are nities with higher levels of "cultural continuity" or the right answers? Unlike a driver’s test, the applicant self-government have lower suicide rates. While does not know and the minister has not said. Indeed, Stephen Cornell, America's leading expert on Indige- this “readiness” test is too much like the “literacy nous government, argues that, when it comes to cul- test” once used in the southern states to deny Amer- tural survival, it is jurisdiction that counts. Yet, in ican blacks their right to vote. Canada, as in the United States, federal government Were the parties open to a sensible compromise, bureaucracies tend to approach Aboriginal self-gov- could they reconcile Nunavut's wish to negotiate ju- ernment with a focus on administrative activities, risdiction with Ottawa's rhetorical priority of build- Cornell argues, “while the big decisions still get made ing administrative capacity? The short answer would elsewhere.” be yes, by immediately implementing a 2008 devo- Given the devolution of powers over lands and lution negotiations protocol negotiated by Paul resources in Norway’s Finnmark county and from Mayer, special representative for Northern affairs Denmark to Greenland, as well as the Yukon and minister Jim Prentice, and signed by Minister Chuck , which negotiated lands and Strahl. The protocol commits the parties to proceed- resources transfers in 2003 and 2011, could devolu- ing with both agendas—jurisdiction and administra- tion or local control of lands and resources be con- tion—on parallel tracks over the same timeframe. Yet sidered as something of a right—a right now enjoyed this is exactly what minister Duncan has so far re- by all Canadians except Nunavummiut and those fused to do. First Nations trapped in the logjam of endless treaty Of course, compliance with universally-accepted and self-government negotiations? The United Nations accounting principles is desirable, as are serious com- Declaration on the Rights of Indigenous Peoples, Article 26, mitments to training accountants and finance offi- clause 1, reads: "Indigenous peoples have the rights cers, but building administrative capacity in to the lands, territories and resources which they tra- Northern and Indigenous governments will take ditionally owned, occupied or otherwise used or ac- huge investments of money and time. So also will quired." Nunavut’s land and resource devolution negotiations. But what kind of a right can be trumped by an Northerners well remember that each of their land undefined bureaucratic test of administrative capac- claim agreements typically took 20 years to complete. ity? Obviously, a professional public service is essential to Many Canadians would agree that, for many the effective operation of democratic government, years, national governments have suffered from the but which comes first, democracy or bureaucracy? excesses of partisanship and patronage, bullying bu- Most Canadians would choose democracy. reaucracy, and the increasing centralization of power The systematic downgrading of Indigenous gov- in the prime minister’s office. So, if Northern and In- ernments from nations and allies to corporations and digenous governments prefer consensus legislatures, municipalities has been a long and painful process. co-management and decentralized administration, The restoration to Indigenous governments with why would southern Canadians judge that approach province-like powers is one healing step on the long a failure? road to recovery but progress has stalled for B.C. First After all, the two regions have different political Nations, in Nunavut, and on the minister’s cultures and different priorities. When the auditor desk. ◉ general favours centralization over decentralization, is a mediator and negotiator in British Columbia. He served as she did in her 2006 report, then Indigenous and as the third from 1985 to 1992. A longer version of this Northern leaders may see that as evidence of a fed- piece was given as the W.C. Desmond Pacey Memorial Lecture at the Uni- versity of New Brunswick, February 28, 2012. Northern Public Affairs, Spring 2012 35 FROM THE NWT ARCHIVES . 4 7 1 8

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