April 4, 1991
Enclosed for your information is a copy of a commentary on the
plight of aboriginal people in Canada.
Re-printed without permission from The Globe and Mail, Tuesday,
March 26, 1991
TREATING NATIVE ACTIVISTS LIKE COMMON CRIMINALS
by Tony Hall
Lethbridge, Alta.
Milton Born With A Tooth was sentenced in a Lethbridge court
yesterday by Judge L.D. MacLean to 18 months imprisonment for an
armed confrontation with police on his reserve last fall. Leader
of the Peigan Lonefighters Society, Mr. Born With A Tooth stands
prominently among the growing number of native people who have
decided that assertive tactics are needed to defend the diminishing
base of Indian lands and resources.
While public attention was fixed on the crisis at Oka and Kanewake
during the extraordinary Indian summer of 1990, a confrontation of
comparable drama took place here in Southern Alberta.
Members of several clans of Peigan people resuscitated an ancient
medicine society known as the Lonefighters. Their objective was to
stop the building of the Oldman dam, which would flood many of
their sacred places and disrupt the delicate ecology of the river
valley.
They marked their protest by digging a ditch around an irrigation
weir on their reserve. This forceful assertion of Peigan
jurisdiction was met with a major show of police opposition in
early September. Armed, camouflage-clad tactical squads moved onto
the reserve and Mr. Born With A Tooth fired two warning shots. He
was convicted on seven counts.
It is an understatement to say that the full, coercive weight of
the law was lowered onto the Lonefighter leader. Before the trial,
Mr. Born With A Tooth was held in jail for four months without
bail. His request was denied to move the trial to Calgary. He
wanted to escape the worst of the demonology that has been created
around the Lonefighters in a part of Alberta sometimes noted for
its racist propensities.
The trial took place at Fort Macleod, a police town that was
actually founded by the Mounties, and Mr. Born With A Tooth faced
an all-white jury.
He came before a judge, L.D. MacLean, who is the target of
allegations from a number of observers at the trial of being openly
contemptuous of the accused and of natives in general. In court he
referred to Peigan perceptions of the land as "fantasy" and drew a
comparison between Peigan culture and satanism.
The Lonefighters' defence of the Oldman River comes at a time when
aboriginal people face a narrowing range of options in their
struggle to survive as distinct societies. Since the
constitutional negotiations on aboriginal matters were shut down
without resolution in 1987, the country has lacked credible
political forums to hear and address aboriginal grievances.
The setbacks on the political front were partially offset, however,
by advances in the courts. Then came B.C. Judge Allan McEachern's
blunt denial of the assertions of the Gitskan and Wet'suwet'en
people, who claim aboriginal title over a 57,000-square-kilometre
section of the interior of British Columbia.
A positive judicial finding on the Gitskan case would have helped
nudge the federal and provincial governments toward creating
lasting cures for long-festering land disputes, especially in those
parts of Canada still uncovered by the treaty-making process as
first formulated in the Royal Proclamation of 1763. Treaties have
never been negotiated with most of the indigenous groups in British
Columbia.
Rather than create openings for the forward movement of a flow of
ideas and action in our constitutional heritage that acknowledges
the basic human rights of aboriginal people, Judge McEachern placed
new obstacles in the way.
His finding elaborates a doctrine of extinguishment. According to
this view of history, aboriginal links to their ancestral lands
were so tenuous that the British Crown obliterated aboriginal
rights by the mere act of declaring sovereignty over Indian
territory.
What effect does the extinguishment of a people's rights have on
their capacity to sustain a distinct identity? What effect will
this judgment have on the aboriginal struggle to bequeath a
sufficient base of land, resources and indigenous institutions for
the survival of aboriginal cultures amid a growing sea of
acquisitive newcomers? It is sad that questions like these need to
be asked in Canada at the end of a century that has been no
stranger to genocide.
Judge McEachern concluded his finding by instructing native people
to look to politicians rather than courts for the resolution of
their grievances. This advice seems particularly provocative in
the light of the harsh responses of the federal government and
virtually all provincial governments except Ontario's to the
forceful assertion of aboriginal and treaty rights.
Rather than address in good faith the profound jurisdictional
uncertainties that lay at the basis of the action taken by the
Lonefighters and many other aboriginal groups, the preferred
strategy is to treat their protests as the acts of criminals.
Unfortunately, it is becoming increasingly clear that many Crown
officials both in the police and courts have allowed themselves to
become complicit in this dangerous plan to criminalize the
political assertions of more strident aboriginal activists. Or in
any case, there has not been a willingness to look at the charges
against the native veterans of the summer of 1990 in the context of
the land rights they believed they were defending.
This development is occurring just as the criminal justice system
finds itself in increasing disarray over the disproportionate
numbers of charges, convictions and incarcerations experienced by
so many native people in Canada. All the inquiries and commissions
have not been able to stop the flow of scandals.
Here in Alberta, for instance, officials are scurrying for cover
from the fallout of new revelations suggesting that Wilson Nepoose,
a Hobbema Cree, was wrongfully convicted of murder four years ago.
Mr. Nepoose's name may well become part of a list whose mere
mention conjures up grotesque images of the litany of injustices
plaguing too many Native people in Canada. The names include
Donald Marshall Jr., Helene Betty Osborne, Minnie Southerland,
Chester Heavy Runner, Bernard Tallman and J.J. Harper.
Revelations about abuses against native people in the criminal
justice system should have removed any doubt that there are
profound inequities in the way law is enforced in Canada.
Canadians are also coming to understand how native people have been
excluded from the exercise of power in the way the laws are made.
The Gitskan judgment now casts a dark shadow over the one area that
did seem to offer a ray of hope, that is, the judicial
interpretation of the laws.
Penetrating questions need to be asked about the politics of
judicial appointment that places white men in a position to pass
such sweeping judgments about the very legitimacy of aboriginal
culture and belief.
The rhetoric of law and order has become a significant part of the
post-Oka discourse. In her presentation before the parliamentary
committee studying the Oka crisis, for instance, Justice Minister
Kim Campbell justified the government's actions during the summer
of 1990 by citing the importance of enforcing laws uniformly. But
such appeals to law and order are double-edged.
Aboriginal and treaty rights are recognized in Canada's
Constitution. But who has ever gone to jail for violating an
aboriginal or treaty right? And yet the jails in Canada are full
of native people.
Why is the law enforced so selectively? Why do law-enforcement
officials do so little to protect the land rights of aboriginal
people? Where is there any true respect for the principles of law
and order when such blatant bias becomes evident?
Is Milton Born With A Tooth a political prisoner? How prepared are
Canadians to see the police, courts and jails used as a substitute
for broad and comprehensive negotiations about the place of
aboriginal societies in modern-day Canada? At what point do the
persistent violations of the human rights of aboriginal people
become so severe that our institutions for making, interpreting and
enforcing the laws become devoid of real legitimacy?
Tony Hall teaches aboriginal affairs at the University of
Lethbridge.
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* Origin: Lubicon News Station: Edmonton, Alberta Canada (89:682/32)
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