When chief justice Marshall of the United States Supreme Court presided over a majority decision insisting that only the national government, and not the state of Georgia, could make decisions on Indian affairs, president Andrew Jackson famously remarked, “John Marshall has made his decision; now let him enforce it…Build a fire under them. When it gets hot enough, they’ll go.” And that’s exactly what happened as the Cherokee Nation, like the Choctaws and Seminoles before them, were forcibly removed from their homes and driven down what became known as the Trail of Tears to Oklahoma Territory.
It is a truly shameful episode in modern history, but it is Jackson’s comment that drives home the dilemma that is faced even today. Since the early 1970s, the First Nations, Inuit, and Metis people have been winning substantial and important legal battles.
A powerful dissent by Justices Hall, Spence and Laskin in the Calder (Nishga’a) case in 1973 set out emphatically what many Canadians now realise to be true, namely that “the proposition…that after conquest or discovery the native people have no right at all except those subsequently granted or recognized by the conqueror or discoverer was wholly wrong”. And yet time and again it is “propositions” like this that government have continued to make in their dealings with indigenous people and their governments.
Since the Calder case, there has been an evolution, but hardly a sea change. This week in court, for example, the Nunavut Tunngavik Inc. (NTI), the political representative of the Nunavut Inuit, and the government of Nunavut are having to go to court to enforce treaty and land claim agreements that were signed not in ancient times but in recent memory. The spirit of Andrew Jackson is, alas, too alive and too well.
Modern treaties and agreements have been signed, but getting them enforced is proving difficult. The provinces of Ontario, Manitoba, Saskatchewan, Alberta and eastern B.C. are covered by what are known as the “numbered treaties”, the product of the same era that brought us the Indian Act and residential schools.
As Murray Sinclair has put it so succinctly, “the truth will indeed set you free, but first it will piss you off.” These three pillars of late nineteenth century policy were the product, as John Ralston Saul has reminded us again in his book The Comeback of a period of imperialist, racialized thought. The assumption of the time was that Indians were genetically inferior, and would either die off or assimilate. The treaties were intended to clear title, and clear the land. The Indian Act was meant to confine Indians to tiny, scattered pieces of land, and the residential schools were supposed to take the Indian out of the child and literally obliterate an identity and a way of life.
The written documents, drafted entirely by governments, were not understood by those whose “x’s” marked consent. The elders and leaders of the time could not possibly have agreed to “cede, release, and surrender” title to land which they themselves did not believe they actually “owned”, but rather believed that they used in the name of the Creator. What they saw as a solemn treaty relationship, which both sides had a solemn obligation to maintain and uphold, governments saw as a way of getting them off the land and clearing title for settlement and development.
Some First Nations are moving successfully to claim jurisdiction and assert responsibility, but in the numbered treaties this is not happening, and the gap in status, well-being and power between and among indigenous people in Canada has to be better understood so it can be remedied.
Cindy Blackstock’s remarkable campaign to insist that discrimination against indigenous people in education and social welfare must end has been met with nothing but resistance and legal gamesmanship. There are issues being tried in jurisdiction after jurisdiction with the single objective of getting well established rights and principles of law enforced. The cynicism of governments seems to know almost no bounds. They will do as little as they can to enforce, implement, and make change.
The dilemma remains that the majority of Canadians, and the parties that strive to represent them in Parliament, think about these issues as little as they have to.
The reason for the lack of leadership is not hard to figure out – it has everything to do with a read of public opinion itself.
But the issues will not go away, or get any easier, as time goes on. The indigenous population is the fastest growing in the country, and will become an increasing factor in urban life, where most Canadians live. And resource development is now extending deep into the traditional territory of people who have strong views about their own jurisdiction, rights, and needs. Governments and companies ignore these realities at their peril.
Some governments and premiers understand this, and some not so much. But if the insistence of our constitutional law is that accommodations must be reached is not matched by serious political action, the result will not be a trail of tears. It will be a series of confrontations, large and small, which in themselves will require a response. It has been said that good public policy is what happens when all the alternatives have been exhausted. Enough already.
photo by Simon Hayter, 06.