Toxic Multiculturalism

[Oexmelin]

Oh, I'm well aware of the latter issue: the existance of a class of "special" citizens, defined by race and entitled to special privileges, is the anomaly under our laws that I am attacking.

But that was my point to begin with: historically, the existence of Natives has always required to put their status in parenthesis, because they were *not* citizens then and are *not* citizens-like-others now. This is why history matters, and why the ahistory legalistic approach you are taking needs to erase and ignore the specificities of the Natives problem.

Should you start with questions such as "Why should Canada's law apply to the Natives ?", you enter a realm of blurry definitions, which in turned rely on historical elaborations (such as State, sovereignty, Nation) that were precisely constructed to keep out certain groups - such as Natives. You end up either grossly distorting conceptions of social contract, difforming the effect of Might, or legitimizing a conquest which, in fact never really took place.

The question therefore, is not whether the Indian Act is a good thing: I don't think anyone, whether Native or White, argues that anymore, and I think we can safely store that away for the purpose of discussion. We can of course argue whether or not the current incarnations of the Indian Act create dependency, or whether or not reserves are a good thing. But the question underpinning all of this, and I thought that was the point of the discussion, is whether or not Natives should be awarded special status and, if the answer is yes given the history behind it, what should be the best way to handle that in a modern society. Quite frankly, my experiences with Natives tell me, as BB remarked, that while they definitely answer yes, they are debating the second part much like we are.

The answer they usually do *not* give, is one where Native identity should be dissolved amongst the myriad of other immigrant / constitutive identities. This seem to be the answer you want to give: given all the problems of the Indian Act, let's deal away with Indian status altogether. This is a sure way to get Natives united to decry such an approach. And, in a way, Grallon is right: this constitutes a litmus test for Canada's vaunted multiculturalism. While Quebec had the political strength to fight back such a dissolution, Natives could be theoretically disregarded, their status dissolved without their consent; and while Canadian identity could safely be defined without much regard to Quebec, treatment of Natives *and* multiculturalism have been put forward as distinctive of Canadian identity.

[crazy canuck]

My problem is that I see this as an issue that is within the purview of society at large.  The contract isn't between some abstract concept of government and what you call "Native people," it is between the government acting on behalf of all Canadian citizens and some chiefs acting on behalf of their various tribes/bands/nations.  That contract is what has to go.  Canadian people should just be Canadian people under the law, and any identities, culture, etc should be maintained of their own free will and not by virtue of some small group's determination of what it means to be an Algonquin, or whatever.

The difficulty with this view is that the treaties that were made were not a form of agreement made between a soveriegn government and its citizens.  All of the early treaties I am aware of were made between two soveriegn parties - hence the name of the document recording the document -  a Treaty.   As a result Treaties have far greater legal importance then a mere contract.  Treaties invoke a concept in law known as the honour of the Crown.  Simply put a contract can be breached a Treaty cannot.

Unlike the experience in the US many of the Treaties made in what was to become Canadian territory did not involve conquest.  They were instead Treaties of mutual assistance.  And as we all know the British, who made the early Treaties, benefited a great deal from them.  As just one example of this, arguably it was because of Native assistance and most notably under Tecumseh that the Americans were turned back in the war of 1812.

Because of this special historical importance of Treaties in Canada our legal tradition has always provided special recognition for treaty rights, even before they were enshrined in our Charter.  It is a pratical impossibility to do away with them.   

[The Minsky Moment]

Yeah, that's what sticks in my craw about Malthus' or Grumbler's argument.  We *did* sign treaties, that very explicitly were meant to apply to the descendents of those people.  First Nations people are amongst our poorest.  Yet we're going to take away rights and break those treaties in the name of helping these people?

But a treaty presumes you are dealing with a sovereign; whereas the structure of the Indian Acts (as described within these threads - I confess to no independent knowledge at all) presumes we are dealing with a dependent population defined by racial classification being submitted (albeit in an arguably "beneficial" way) to the supervisiory authority of another sovereign. 

If Canada is going to serious about "honoring treaties" than it needs to recognize FN independence and treat them like real sovereigns.  If it isn't going to do that, the reality is that the treaty structure is just a polite(?) fiction and Indian affairs are a matter of state policy like any other. 

[The Minsky Moment]

The difficulty with this view is that the treaties that were made were not a form of agreement made between a soveriegn government and its citizens.  All of the early treaties I am aware of were made between two soveriegn parties - hence the name of the document recording the document -  a Treaty. 

Exactly, but as one of the parties is no longer a sovereign (or recognized as such) the treaties no longer have any force or meaning.  It is incoherent to have a treaty with a group of people that are subjected to one's own sovereign authority.

[crazy canuck]

Yeah, that's what sticks in my craw about Malthus' or Grumbler's argument.  We *did* sign treaties, that very explicitly were meant to apply to the descendents of those people.  First Nations people are amongst our poorest.  Yet we're going to take away rights and break those treaties in the name of helping these people?

But a treaty presumes you are dealing with a sovereign; whereas the structure of the Indian Acts (as described within these threads - I confess to no independent knowledge at all) presumes we are dealing with a dependent population defined by racial classification being submitted (albeit in an arguably "beneficial" way) to the supervisiory authority of another sovereign. 

If Canada is going to serious about "honoring treaties" than it needs to recognize FN independence and treat them like real sovereigns.  If it isn't going to do that, the reality is that the treaty structure is just a polite(?) fiction and Indian affairs are a matter of state policy like any other.

You have identified the issue that I think is the solution.  The honour of the Crown would be better upheld if the treaties were honoured and Government got out of the business of regulating the lives of the Natives as a separate group.

As I said earlier the sticking point are the Natives who had their land taken without treaty.  Unfortunately there was a fellow in B.C. by the name of Douglas in the early 1800s who thought treaties were a waste of time and we are now trying to fix the mess he left.

[crazy canuck]

The difficulty with this view is that the treaties that were made were not a form of agreement made between a soveriegn government and its citizens.  All of the early treaties I am aware of were made between two soveriegn parties - hence the name of the document recording the document -  a Treaty. 

Exactly, but as one of the parties is no longer a sovereign (or recognized as such) the treaties no longer have any force or meaning.  It is incoherent to have a treaty with a group of people that are subjected to one's own sovereign authority.

That postion has been attempted and rejected by our Courts.  It a concept known in the law as extinguishment.  It was argued in a case known as Delgamouk (sp?).  The argument was accepted at trial but the rejected at both the B.C. Court of Appeal and then the Supreme Court of Canada.

If the extinguishment argument had been accepted then the positions you and Grumbler are stating (that these are mere contracts that no longer have force) would be a simple way to deal with the matter.  One of the great attractions of the extinguishment position.  But the law did not develop in that way.

[Oexmelin]

As I said earlier the sticking point are the Natives who had their land taken without treaty.  Unfortunately there was a fellow in B.C. by the name of Douglas in the early 1800s who thought treaties were a waste of time and we are now trying to fix the mess he left.

Or, in the East, the nations that were under relationships governed by mutual oral agreements (Algonquians, Innus), those who were part of the "domiciliés" (Hurons, Mohawks, Abenakis) and those with whom various documents had been signed for punctual uses, which are now given a quasi (or sometimes full) treaty interpretation (Mi'kmaq)

[Oexmelin]

Delgamouk (sp?). 

Delgamuuk'w

[Oexmelin]

If the extinguishment argument had been accepted then the positions you and Grumbler are stating (that these are mere contracts that no longer have force) would be a simple way to deal with the matter.  One of the great attractions of the extinguishment position.  But the law did not develop in that way.

As well it should, considering that Natives were not, then and now, put in a position to influence the development of both Canadian law and international law (one only needs to re-read the early writers of international law to see why...).

[crazy canuck]

As I said earlier the sticking point are the Natives who had their land taken without treaty.  Unfortunately there was a fellow in B.C. by the name of Douglas in the early 1800s who thought treaties were a waste of time and we are now trying to fix the mess he left.

Or, in the East, the nations that were under relationships governed by mutual oral agreements (Algonquians, Innus), those who were part of the "domiciliés" (Hurons, Mohawks, Abenakis) and those with whom various documents had been signed for punctual uses, which are now given a quasi (or sometimes full) treaty interpretation (Mi'kmaq)

Interesting.  There is something coming close to this in the case of the Nisga'a.  But in their case it was not so much an oral agreement as it is clear that they continually asserted their independence and frequently attempted to negotiate a treaty but B.C. and Canada were never interested in talking to them until about 25 years ago.

It was facts like this that made the extinguishment argument difficult to sustain.

[crazy canuck]

Delgamouk (sp?). 

Delgamuuk'w

Merci.

[Malthus]

Oh, I'm well aware of the latter issue: the existance of a class of "special" citizens, defined by race and entitled to special privileges, is the anomaly under our laws that I am attacking.

But that was my point to begin with: historically, the existence of Natives has always required to put their status in parenthesis, because they were *not* citizens then and are *not* citizens-like-others now. This is why history matters, and why the ahistory legalistic approach you are taking needs to erase and ignore the specificities of the Natives problem.

I don't get your point. You say that this was your point to begin with - i.e., that racial benefits are wrong - why then are you seemingly arguing for the opposite?

To my mind the fact that these racial preferences have a deep-seated historical basis is an interesting practical problem - namely, it makes it more difficult to simply erase them. It does not change the fact that they need to be erased.

I recognize that, practically, it may be legally impossible or very difficult to root out the damage. That does not change the unfortunate fact that it is necessary.

Should you start with questions such as "Why should Canada's law apply to the Natives ?", you enter a realm of blurry definitions, which in turned rely on historical elaborations (such as State, sovereignty, Nation) that were precisely constructed to keep out certain groups - such as Natives. You end up either grossly distorting conceptions of social contract, difforming the effect of Might, or legitimizing a conquest which, in fact never really took place.

See, I see a native woman living on a reserve who cannot get sole possession of her matrimonial home - a right accorded non-native women under our law - away from her abusive husband; to me it is the mess of laws that require this (see my post above) that is the "gross distortion".

I imagine attempting to explain to this woman that her plight is a historical necessity; her abuser must live in her house, see, in order to avoid legitimizing the non-existent conquest of Natives by the Brits a coupla hundred years ago. It's a matter of racial honour!

To my mind at least, I'd rather do violence to abstract historical concepts than to real, existing people today.

The question therefore, is not whether the Indian Act is a good thing: I don't think anyone, whether Native or White, argues that anymore, and I think we can safely store that away for the purpose of discussion. We can of course argue whether or not the current incarnations of the Indian Act create dependency, or whether or not reserves are a good thing. But the question underpinning all of this, and I thought that was the point of the discussion, is whether or not Natives should be awarded special status and, if the answer is yes given the history behind it, what should be the best way to handle that in a modern society. Quite frankly, my experiences with Natives tell me, as BB remarked, that while they definitely answer yes, they are debating the second part much like we are.

Sure, pretty well everyone would "like" to have some confirmation that their racial group is special and deserving. The problem is that, in practice, giving in to this all-too-human tendency has proven disasterous in practice.

The answer they usually do *not* give, is one where Native identity should be dissolved amongst the myriad of other immigrant / constitutive identities. This seem to be the answer you want to give: given all the problems of the Indian Act, let's deal away with Indian status altogether. This is a sure way to get Natives united to decry such an approach. And, in a way, Grallon is right: this constitutes a litmus test for Canada's vaunted multiculturalism. While Quebec had the political strength to fight back such a dissolution, Natives could be theoretically disregarded, their status dissolved without their consent; and while Canadian identity could safely be defined without much regard to Quebec, treatment of Natives *and* multiculturalism have been put forward as distinctive of Canadian identity.

Nothing about not being defined as legally-different non-citizens, unequal before the law, is *required* for people to have a grasp of their own cultural identity.

If the threat is that those already with the status will react badly to having it taken away, that may well be true, but again the practical difficulties do not change the fact that it is necessary.

[Jacob]

I dont think we are saying anything different.  He wanted his status confirmed so that he could live on reserve - one of the main benefits and pitfalls of the Act.

But he doesn't live in the reserve.  He can live on the reserve if he choses, but whatever moved him to get his status, he still lives here.  So while the main material benefit is that he can live on the reserve, he is not doing so now nor does he plan on it (I think), so it doesn't seem reasonable to consider that his main motivation.

It is important to understand the "not real Indian" slur in context.  It was probably said by people who were enjoying the full dole given by the Act and a comment on his inability to take advantage us such benefits.

Yes of course that's a component, but it's not the "important" part at all.  Focusing on the dole aspect is missing the point I was trying to make.  Completely.  It's about belonging and not belonging, not material benefits, even if material benefits end up being the marker of the belonging or not.

It is actually a sad comment on aboriginal culture that someone feels they need to obtain a stamp of approval by the government to be accepted by their community.  This is likely one of the reasons many Native leaders wish to have the whole thing abolished so that they can have greater autonomy within their own communities.

Yep.  It's pretty messy; I'd like to think that if Native leaders do wish to abolish the whole thing it will eventually be abolished.  My main point is that this should be driven by the Native peoples themselves.

[Oexmelin]

To my mind at least, I'd rather do violence to abstract historical concepts than to real, existing people today.

You are caricaturing. Most of our principles derive from historical concepts (which in my mind are no less, no more abstract than concepts of law or equality you seem to want to argue from), and many of them do harm to real existing people today, in the name of such concepts. Just like we are capable of believing in abstract ideas (e.g. freedom of speech) and somehow come up with practical solutions to pragmatic problems (e.g. hate speech).

...and indeed, I wonder if, in the name of concepts, you might not yourself be willing to do violence to real, existing people today (how exactly is the abolition of Indian status going to help people living in reserves today ?)

[Jacob]

Which unilateral action do you object to?  No one is arguing for a unilateral action that i know of.

When Malthus says we should abolish the system, that sounds to me like he's advocating unilateral action, without the buy-in of the Native peoples*.  If he's not, and no one else is, then great

*and yes, you are correct, not by "Native peoples" as a monolithic group, but my the individual tribes and bands which makes the whole situation more complicated.

The bottom line, though, is that  every Canadian has a voice in this.  It isn't the preserve of just some people based on their ancestry.  The problem has to acknowledge that privileges were created by treaty, and that compensation must be offered for the abandonment of those privileges, but unless the privileges themselves are acknowledged as part of the problem, it won't be solved.

I mostly agree with this, I think; however, the sticking point for me is that when "compensation is offered for the abandonment of those privileges" that the people who are abandoning their priviliges accept that the compensation is fair.

My problem is that I see this as an issue that is within the purview of society at large.  The contract isn't between some abstract concept of government and what you call "Native people," it is between the government acting on behalf of all Canadian citizens and some chiefs acting on behalf of their various tribes/bands/nations.  That contract is what has to go.  Canadian people should just be Canadian people under the law, and any identities, culture, etc should be maintained of their own free will and not by virtue of some small group's determination of what it means to be an Algonquin, or whatever.

And this is where I disagree with you and Malthus.  I'm cool with the Algonquin people determining who is Algonquin, and I am okay with them having a unique status within the larger Canadian society.  Similarly, I am okay with the Huu-ay-aht and Toquaht and so on defining themselves and having unique status within Canadian society.  I don't hold this to be some natural injustice that must be corrected, though I recognize that problems can come from it; I am, however, all for attempting to address the problems as they arise on a case by case basis, and I'm also fine with a negotiated move towards dissolution of the various forms of special status, again on a case by case basis, if that is what the various Native groups involved believe is useful for them.