First Nations Self-Governance Models – Is it Time for a Paradigm Shift?

I recently watched the Canadian Senate – a much maligned institution of late – hard at work.   In session, was the Senate Standing Committee on Aboriginal Peoples (APPA), which was only just established in 1990 after several generations of Canada’s interaction with Aboriginal Peoples post-Confederation in 1867, and many centuries of explorer and settler interaction with the land’s first inhabitants before that time.

 

Meeting on Wednesday, February 17, 2016,[1] and chaired by Dr. Lillian Eva Dyck, a Senator from Saskatchewan and a member of the Gordon First Nation,[2] the committee was engaged in an “Examination of federal government’s constitutional and legal responsibilities to Aboriginal Peoples,”[3] in the second of its 2 meetings on the subject.[4] That Wednesday’s witness list was highly impressive,[5] with equally impressive presentations and revelations of policy, procedure, and lived experience in practice.

 

 

ISSUES –

Amongst the major topics discussed were the United States Western Hemisphere Travel Initiative (WHTI)[6] and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).[7] As a lawyer with legal work experience in both Canada and the United States, neither one of these instruments was new to me. However, a third – the Jay Treaty – actually was.

 

WHTI (Western Hemisphere Travel Initiative):

Initiated in 2 stages, first for air travel (effective from January, 2007) and then for travel by land and sea (effective from June, 2009), WHTI grew directly from some of the key recommendations of the 9/11 Commission and was codified in the Intelligence Reform and Terrorism Prevention Act of 2004.[8] WHTI mandates that all travelers to and from the United States who are citizens of Canada, Mexico, Bermuda, and the United States itself, have and present secure passports or other acceptable documentation proving identity (such as NEXUS Cards, Enhanced Driver’s Licenses, and the “in-Canada” Secure Certificate of Indian Status – but with caveats[9]), for such travel originating in the western hemisphere.[10]

 

UNDRIP (United Nations Declaration on the Rights of Indigenous Peoples):

As adopted by the General Assembly of the United Nations at its 107th plenary meeting on September 13, 2007, the United Nations Declaration on the Rights of Indigenous People (UNDRIP),[11] is “a comprehensive statement addressing the rights of indigenous peoples”[12] (…) which “emphasizes the rights of indigenous peoples to maintain and strengthen their own institutions, cultures and traditions and to pursue their development in keeping with their own needs and aspirations.”[13] Of current key relevance are Article 30[14] (territorial quiet enjoyment amidst planned military activities in the Arctic) and Article 36[15] (rights to societal cohesion and cultural vibrancy in a changing and more “bordered” world).

 

Article 30

1. Military activities shall not take place in the lands or territories of indigenous peoples, unless justified by a relevant public interest or otherwise freely agreed with or requested by the indigenous peoples concerned.

 

2. States shall undertake effective consultations with the indigenous peoples concerned, through appropriate procedures and in particular through their representative institutions, prior to using their lands or territories for military activities.[16]

 

Article 36

1. Indigenous peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders.

 

2. States, in consultation and cooperation with indigenous peoples, shall take effective measures to facilitate the exercise and ensure the implementation of this right.[17]

 

Although UNDRIP is not binding International law, such declarations by the United Nations “represent the dynamic development of international legal norms and reflect the commitment of states to move in certain directions, abiding by certain principles.”[18] Indeed, the 1982 Canadian Charter of Rights and Freedoms, which enshrines at Article 35[19] a guarantee of the rights of Canada’s Indigenous Peoples, appears a step in the right direction ….. but then, there is that Jay Treaty …..

 

JAY TREATY:

With a short title in the name of its American lead negotiator, Chief Justice John Jay, and signed on November 19, 1794, this “Treaty of Amity, Commerce, and Navigation, Between His Britannic Majesty and The United States of America”, maintained U.S. neutrality and consolidated the peace between these two sovereign states that had remained shaky since the latter achieved its independence from the former.[20] The main contention with this Treaty cited by several of the First Nations witnesses appearing before the Senate Standing Committee on Aboriginal Peoples was that the Treaty rights to free passage of the persons and goods of Aboriginal peoples to and from the United States as guaranteed in Article 3,[21] only applied one way (to Canadians traveling to the United States which deems Canada’s recognized First Nations and Native Americans to be “American Indians” for purposes of the Treaty), but not to Americans traveling to Canada; even though many are also citizens of First Nations with lands, members, and long histories of travel, trading, and cultural interests and practice in both Canada and the United States. The fact that Canada can claim succession in interest to the rights and obligations of Great Britain viz-a-viz the United States, but deny recognition and ratification of the Jay Treaty, remains a contradiction.[22]

 

 

THE CORE POINT as REPEATED SORE POINT –

As shown, there is still a major disconnect between policymaking, law enforcement, and true consideration of the status, needs, and special circumstances of the Aboriginal Peoples (as first inhabitants) of the American Continents (South America, North America,[23] and the Arctic into today’s Russia, as well as their relatives and trading partners in yesterday’s Russia, which today is Alaska.[24]

 

The WHTI seeks passports, but in Canada many Band members have Status Cards issued by the Bands with disparate membership rules and regulations. Besides which, while seeking to honour the terms of the Jay Treaty, the United States has no power to accord rights thereunder to the Inuit or Métis, as they are not “Indians” within the meaning of the Indian Act,[25] and several members will undoubtedly fall short of the 50% (“fifty percent”) bloodlines rule required for their unimpeded entry into the United States as “American Indians” under Jay Treaty terms.[26]

 

The UNDRIP lays-out norms of acceptable behavior towards indigenous peoples. However, there is a long history of past and continued unacceptable treatment across the length and breadth of both North America and South America, and the pointing fingers of blame keep wagging, but with no resolution. However, Canada’s recently-inaugurated Liberal government has made a stated[27] and demonstrated[28] commitment to a re-vamped relationship with Canada’s Aboriginal Peoples –including promised implementation of the UNDRIP,[29] and this has been noticed and warmly welcomed by the First Nations in both actions,[30] and words.[31]

 

Clearly then, the only way to conclusively move forwards, capitalize on this new energy, and solve the long and repeated lack of full consideration and consultation in policy-making,[32] treaty interpretation,[33] and policy implementation,[34] is certainly to work together, but perhaps it is time to do so within the context of a significant paradigm shift as I will now describe.

 

 

ONE PROPOSAL –

I would propose that the new(er) national governments of North America work much more closely and in a far more collaborative and mutually respectful way, with the older and transnational Aboriginal residents of the continent who are impacted by their decisions, and who preceded them in time and space. I would propose a single, continental body with unequal representation of the newer (9 national “government” members) and the older (12 “aboriginal” members).

 

I would also propose, as the government members: 2 from each of Canada, Russia, the United States, and Mexico; with an additional Canadian member from Indian Oil and Gas Canada (IOGC) to sit on RICT.[35]

 

Inspired by the Senate Committee meeting to perform some research on individual memberships and geographic scopes of several First Nations and Aboriginal Peoples so as to better balance the interests of communities of all sizes, I would also propose as the aboriginal members: 4 from Canada, 5 from the United States, and 3 from Mexico. From Canada, one might invite representation from the Cree, Inuit, Métis, and Mohawk. From the United States, one might invite representation from the Cherokee, Chipewa, Choctaw, Navajo, and Sioux. And from Mexico, one might invite representation from the Apache, Maya, and Nahuatl.

 

With a rotating 5-month chairmanship/chairwomanship amongst the Aboriginal members only,[36] there would be full rotation every 60 months, or 5 years. Term limits of 5 years might also be applied to the aboriginal members, and term limits of 3 years for the government members; giving a joint turnover only once every 15 years, so that the entity would often have veteran Commissioners, but always a veteran staff.

 

Preferably based in Canada[37] due to those stated and demonstrated commitments earlier noted,[38] this “First Americans’ Continental Circle (or “Commission”) for Engagement, Enablement, Systems and Sustainability (FACES)”, as proposed, would also have and operate through 7 subcommittees, with potential Aboriginal (“a”) and government (“g”) Commissioner member numbers as follows:

 

CLNT: Culture, Language, Necessities of Life, and Tourism (2a/2g);

RICT: Resources, Industry, Commerce and Trade (1a/1g),

RINC: Restitution, Issues Management, Negotiations, and Consultations (1a/1g);

SASA: Studies, Administration, Statistics and Appointments (1a/2g);

SECO: Services to the Community, Education, Communications, and Outreach (1a/2g);

TIRA: Travel, Identification, Registration, and Access (1a/2g); and

TRLS: Treaty Right, Law, and Status (2a/2g).

 

 

ASSURANCES –

Each of the Aboriginal Peoples and First Nations represented on the Commission has its own governance structures and systems that will in no way be replaced, pre-empted, or subsumed within the Commission. The old (and existing) paradigm of First Nations self-governance is for a one-on-one relationship with the Crown. However, this means that issues that may be common to several First Nations are still handled on a case-by-case basis, and severe inconsistencies have resulted. This new paradigm would serve to ensure that there is consistency of result through uniformity of buy-in and coordination of efforts – both among and between all participating national governments, and among and between all participating Aboriginal Peoples (whether actually present, or represented in interest).

 

Of course, this is merely proposed as a forum where everyone can get to and stay on the same page, and where platforms, positions, and policies common to some or all of the Aboriginal Peoples of North America can be formulated, put forward, and implemented, respectively. Furthermore, having grown up in diplomatic circles, I know that it is not uncommon for small pairs, groups, or teams to step aside and informally discuss other pressing issues of mutual interest to them in this convenient forum, such as ensuring peaceful Arctic exploration, navigation, and resource exploitation, or superpower politics in other parts of the globe, the details of which may not seem immediately relevant to the other Commissioners, but the solutions for which may well do all some lasting good in ensuring world peace.

 

These are just some thoughts spurred by a very informative Senate Committee meeting.

 

*****************************************************************

Author:

Ekundayo George is a lawyer and sociologist. He has also taken courses in organizational and micro-organizational behavior, and gained significant experience in regulatory compliance, litigation, and business law and counseling. He is licensed to practice law in Ontario and Alberta, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America. See, for example: http://www.ogalaws.com. A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other services, and Environmental Law and Policy; working with equal ease and effectiveness in his transitions to and from the public and private sectors. He is a published author on the National Security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal milieux.

Trained in Legal Project Management (and having organized and managed several complex projects before practicing law), Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant – sourcing, managing, and delivering on complex engagements with multiple stakeholders and multidisciplinary teams. Team consulting competencies include program investigation, sub-contracted procurement of personnel and materials, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, and other targeted engagements through tapping a highly-credentialed resource pool of contract professionals with several hundred years of combined expertise, in: Healthcare; Education & Training; Law & Regulation; Policy & Plans; Statistics, Economics, & Evaluations including feasibility studies; Infrastructure; and Information Technology/Information Systems (IT/IS) – also sometimes termed Information Communications Technologies (ICT). See, for example: http://www.simprime-ca.com.

Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.

This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering of any professional service, or attorney advertising where restricted or barred. The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein. Past results are no guarantee of future success, and specific legal advice should be sought for particular matters through counsel of your choosing, based on such factors as you deem appropriate.

 

[1] Senate of Canada. Senate Committee on Aboriginal Peoples. Meeting schedule – Past Meetings. Visited March 4, 2016. Online:

<http://www.parl.gc.ca/sencommitteebusiness/Notice.aspx?parl=42&ses=1&comm_id=1001&Language=E&meeting_id=419810>

[2] Parliament of Canada. Members. Senator Biography. Lillian Eva Dyck. Visited March 4, 2016. Online: <http://www.parl.gc.ca/SenatorsBio/senator_biography.aspx?senator_id=2776&Language=E>

[3] Senate of Canada. Senate Committees. Senate Committee on Aboriginal Peoples meeting of Wednesday, February 17, 2016. Examination of federal government’s constitutional and legal responsibilities to Aboriginal Peoples. Visited March 4, 2016. Online: <http://www.parl.gc.ca/sencommitteebusiness/Notice.aspx?parl=42&ses=1&Language=E&comm_id=1001&meeting_id=419810>

[4] An additional meeting on this subject had just taken place on Tuesday, February 16, 2016, but with a different list of witnesses, being: Allan Clarke, Director General, Economic Research and Policy Development Branch, Lands and Economic Development (Indigenous and Northern Affairs Canada); Douglas Fairbairn, Legal Counsel (Department of Justice Canada); Claudia Ferland, Director General, Individual Affairs Branch, Resolution and Individual Affairs (Indigenous and Northern Affairs Canada); and Sheilagh Murphy, Assistant Deputy Minister, Lands and Economic Development (Indigenous and Northern Affairs Canada). See Senate of Canada. Senate Committees. Senate Committee on Aboriginal Peoples meeting of Tuesday, February 16, 2016. Examination of federal government’s constitutional and legal responsibilities to Aboriginal Peoples. Visited March 4, 2016. Online: <http://www.parl.gc.ca/sencommitteebusiness/Notice.aspx?parl=42&ses=1&Language=E&comm_id=1001&meeting_id=419796>

[5] Supra note 3. Listed as speakers, were: Grand Chief Abram Benedict (Mohawk Council of Akwesasne); Bill Erasmus, Regional Chief (Assembly of First Nations); Claudia Ferland, Director General, Individual Affairs Branch, Resolution and Individual Affairs (Indigenous and Northern Affairs Canada); Lisa Janes, Regional Director General, Northern Ontario Region (Canada Border Services Agency); David Millette, Director General, Negotiations – Central, Treaties and Aboriginal Government (Indigenous and Northern Affairs Canada); Rasennes Pembleton, Researcher, Aboriginal Rights and Research Office (Mohawk Council of Akwesasne); James W Ransom, Director of Tehotiienawakon (Mohawk Council of Akwesasne); and Joe Wild, Senior Assistant Deputy Minister, Treaties and Aboriginal Government (Indigenous and Northern Affairs Canada).

[6] United States Department of Homeland Security. Western Hemisphere Travel Initiative. Visited March 5, 2016. Online: <https://www.dhs.gov/western-hemisphere-travel-initiative>

[7] United Nations (UN). Declaration on the Rights of Indigenous Peoples. Visited March 5, 2016. Online: <http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf>

[8] United States Government Publishing Office (GPO). Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), Pub. L. 108–458—Dec. 17, 2004. Visited March 5, 2016. Online: <https://www.gpo.gov/fdsys/search/pagedetails.action?browsePath=108%2FPUBLIC%2F[400+-+499]&granuleId=&packageId=PLAW-108publ458&fromBrowse=true>

[9] Indigenous and Northern Affairs Canada (INAC) – formerly Aboriginal Affairs and Northern Development Canada (AANDC). Border Crossing. [emphasis added]. Visited March 5, 2016. Online: <http://www.aadnc-aandc.gc.ca/eng/1100100032380/1100100032381>

 

“AANDC is currently only issuing the in-Canada Secure Certificate of Indian Status. Until further notice, all applications for the border-crossing Secure Certificate of Indian Status will be converted to the in-Canada Secure Certificate of Indian Status. Individuals receiving a Secure Certificate of Indian Status will receive a letter providing this information.”

 

“For crossing the border into the United States (U.S.) via land ports of entry (which can include ferry and lake crossings), AANDC has been advised that, in the near term, U.S. border officials will accept both the SCIS and older Certificates of Indian Status as valid identity documents.”

 

“The Government of Canada cautions individuals that the duration for the acceptance of these documents for border crossing purposes into the United States is entirely at the discretion of the U.S. Government. A list of documents approved for entering the United States can be found at Western Hemisphere Travel Initiative. Please note that travellers entering the United States by air continue to be required to present a valid passport or, in certain circumstances, a NEXUS card.”

 

“Please contact Passport Canada for information on passports and the Canada Border Services Agency for information on NEXUS cards.”

[10] Supra note 6.

[11] United Nations (UN). Declaration on the Rights of Indigenous Peoples. Visited March 5, 2016. Online: <http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf>

[12] United Nations (UN). Frequently Asked Questions on the Rights of Indigenous Peoples. What is the Declaration on the Rights of Indigenous Peoples? Visited March 5, 2016. Online. <http://www.un.org/esa/socdev/unpfii/documents/FAQsindigenousdeclaration.pdf>

[13] Id.

[14] Supra note 11, at Article 30.

[15] Supra note 11, at Article 36.

[16] Supra, note 14.

[17] Supra, note 15.

[18] United Nations (UN). Frequently Asked Questions on the Rights of Indigenous Peoples. Is the Declaration Legally Binding? Visited March 5, 2016. Online. <http://www.un.org/esa/socdev/unpfii/documents/FAQsindigenousdeclaration.pdf>

[19] Constitution of Canada. The Constitution Act, 1982, enacted as Schedule B to the Canada Act 1982 (UK), 1982, c 11Canada Act 1982 (the “Canada Act”). Visited March 5, 2016. Online: <http://laws-lois.justice.gc.ca/eng/Const/index.html>

 

Constitution act, 1982 –

PART II – RIGHTS OF THE ABORIGINAL PEOPLES OF CANADA

 

Recognition of existing aboriginal and treaty rights

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

 

Definition of “aboriginal peoples of Canada”

(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.

 

Land claims agreements

(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.

 

Aboriginal and treaty rights are guaranteed equally to both sexes

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons. (96)

 

Commitment to participation in constitutional conference

35.1 The government of Canada and the provincial governments are committed to the principle that, before any amendment is made to Class 24 of section 91 of the “Constitution Act, 1867”, to section 25 of this Act or to this Part,

(a) a constitutional conference that includes in its agenda an item relating to the proposed amendment, composed of the Prime Minister of Canada and the first ministers of the provinces, will be convened by the Prime Minister of Canada; and

(b) the Prime Minister of Canada will invite representatives of the aboriginal peoples of Canada to participate in the discussions on that item. (97)

[20] United States Department of State. Office of the Historian. Milestones 1784–1800. John Jay’s Treaty, 1794–95. Visited March 5, 2016. Online: <https://history.state.gov/milestones/1784-1800/jay-treaty>

[21] Yale Law School. Lillian Goldman Law Library. British-American Diplomacy. The Jay Treaty; November 19, 1794. [excerpt below with emphasis added]. Visited March 5, 2016. Online: <http://avalon.law.yale.edu/18th_century/jay.asp>

 

The Jay Treaty. Treaty of Amity, Commerce, and Navigation, signed at London November 19, 1794, with additional article Original in English. Submitted to the Senate June 8, Resolution of advice and consent, on condition, June 24, 1795. Ratified by the United States August 14, 1795. Ratified by Great Britain October 28, 1795. Ratifications exchanged at London October 28, 1795. Proclaimed February 29, 1796.

Treaty of Amity Commerce and Navigation, between His Britannick Majesty; and The United States of America, by Their President, with the advice and consent of Their Senate.

 

ARTICLE 3.

“It is agreed that it shall at all Times be free to His Majesty’s Subjects, and to the Citizens of the United States, and also to the Indians dwelling on either side of the said Boundary Line freely to pass and repass by Land, or Inland Navigation, into the respective Territories and Countries of the Two Parties on the Continent of America (the Country within the Limits of the Hudson’s Bay Company only excepted) and to navigate all the Lakes, Rivers, and waters thereof, and freely to carry on trade and commerce with each other. But it is understood, that this Article does not extend to the admission of Vessels of the United States into the Sea Ports, Harbours, Bays, or Creeks of His Majesty’s said Territories; nor into such parts of the Rivers in His Majesty’s said Territories as are between the mouth thereof, and the highest Port of Entry from the Sea, except in small vessels trading bona fide between Montreal and Quebec, under such regulations as shall be established to prevent the possibility of any Frauds in this respect. Nor to the admission of British vessels from the Sea into the Rivers of the United States, beyond the highest Ports of Entry for Foreign Vessels from the Sea. The River Mississippi, shall however, according to the Treaty of Peace be entirely open to both Parties; And it is further agreed, That all the ports and places on its Eastern side, to whichsoever of the parties belonging, may freely be resorted to, and used by both parties, in as ample a manner as any of the Atlantic Ports or Places of the United States, or any of the Ports or Places of His Majesty in Great Britain.

 

All Goods and Merchandize whose Importation into His Majesty’s said Territories in America, shall not be entirely prohibited, may freely, for the purposes of Commerce, be carried into the same in the manner aforesaid, by the Citizens of the United States, and such Goods and Merchandize shall be subject to no higher or other Duties than would be payable by His Majesty’s Subjects on the Importation of the same from Europe into the said Territories. And in like manner, all Goods and Merchandize whose Importation into the United States shall not be wholly prohibited, may freely, for the purposes of Commerce, be carried into the same, in the manner aforesaid, by His Majesty’s Subjects, and such Goods and Merchandize shall be subject to no higher or other Duties than would be payable by the Citizens of the United States on the Importation of the same in American Vessels into the Atlantic Ports of the said States. And all Goods not prohibited to be exported from the said Territories respectively, may in like manner be carried out of the same by the Two Parties respectively, paying Duty as aforesaid

 

No Duty of Entry shall ever be levied by either Party on Peltries brought by Land, or Inland Navigation into the said Territories respectively, nor shall the Indians passing or repassing with their own proper Goods and Effects of whatever nature, pay for the same any Impost or Duty whatever. But Goods in Bales, or other large Packages unusual among Indians shall not be considered as Goods belonging bona fide to Indians. No higher or other Tolls or Rates of Ferriage than what are, or shall be payable by Natives, shall be demanded on either side; And no Duties shall be payable on any Goods which shall merely be carried over any of the Portages, or carrying Places on either side, for the purpose of being immediately reimbarked, and carried to some other Place or Places. But as by this Stipulation it is only meant to secure to each Party a free passage across the Portages on both sides, it is agreed, that this Exemption from Duty shall extend only to such Goods as are carried in the usual and direct Road across the Portage, and are not attempted to be in any manner sold or exchanged during their passage across the same, and proper Regulations may be established to prevent the possibility of any Frauds in this respect.

 

As this Article is intended to render in a great Degree the local advantages of each Party common to both, and thereby to promote a disposition favourable to Friendship and good neighbourhood, It is agreed, that the respective Governments will mutually promote this amicable Intercourse, by causing speedy and impartial Justice to be done, and necessary protection to be extended, to all who may be concerned therein.”

 

[22] While some might say that the War of 1812 between Britain and the United States voided all treaties between them – including the Jay Treaty, it remains a fact that the Treaty of Ghent (1814) in the ninth of its 11 Articles “specifically” restored all of the rights and terms of the Jay Treaty as they applied to American Indians (provided that they cease and desist with all hostilities upon notification of the Treaty’s signing) but yet again, with no direct Indigenous consultation or seat at the negotiating table. See Yale Law School. Lillian Goldman Law Library. British-American Diplomacy. Treaty of Ghent; December 24, 1814. [excerpt below with emphasis added]. Visited March 5, 2016. Online: <http://avalon.law.yale.edu/19th_century/ghent.asp>

 

Treaty of Peace and Amity between His Britannic Majesty and the United States of America.

 

ARTICLE THE NINTH.

“The United States of America engage to put an end immediately after the Ratification of the present Treaty to hostilities with all the Tribes or Nations of Indians with whom they may be at war at the time of such Ratification, and forthwith to restore to such Tribes or Nations respectively all the possessions, rights, and privileges which they may have enjoyed or been entitled to in one thousand eight hundred and eleven previous to such hostilities. Provided always that such Tribes or Nations shall agree to desist from all hostilities against the United States of America, their Citizens, and Subjects upon the Ratification of the present Treaty being notified to such Tribes or Nations, and shall so desist accordingly. And His Britannic Majesty engages on his part to put an end immediately after the Ratification of the present Treaty to hostilities with all the Tribes or Nations of Indians with whom He may be at war at the time of such Ratification, and forthwith to restore to such Tribes or Nations respectively all the possessions, rights, and privileges, which they may have enjoyed or been entitled to in one thousand eight hundred and eleven previous to such hostilities. Provided always that such Tribes or Nations shall agree to desist from all hostilities against His Britannic Majesty and His Subjects upon the Ratification of the present Treaty being notified to such Tribes or Nations, and shall so desist accordingly.”

 

[23] I will limit my observations and conclusions to the North American continent and the Arctic.

[24] The degree of this interconnectedness was highlighted by Bill Erasmus, Regional Chief (Assembly of First Nations), as he noted that his own people, members of the Dene Nation were now, and had long been, present as residents, and/or actively trading in Alaska (while it was in Russia), North America, and Mexico. This is a staggering geographic reach. For a brief biography of Regional Chief Erasmus, please see: Assembly of First Nations (AFN). Chief Willy (Bill) Erasmus, B.A. Visited March 5, 2016. Online: <http://www.afn.ca/en/chief-willy-bill-erasmus-b.a>

[25] A hyperlink identifying those “Federally recognized Canadian Indian Bands” that can certify ancestry and Indian ancestry for purposes of U.S. implementation of the Jay Treaty can be found on the website of the United States Customs and Immigration Service (USCIS) under, Green Card for an American Indian Born in Canada. Visited March 5, 2016. Online: <https://www.uscis.gov/green-card/other-ways-get-green-card/green-card-american-indian-born-canada> . However, that link leads directly to a list of Canada’s officially recognized Indian Bands at Aboriginal Affairs and Northern Development Canada (AANDC) – as now renamed Indigenous and Northern Affairs Canada (INAC), under First Nation Profiles. Visited March 5, 2016. Online: <http://pse5-esd5.ainc-inac.gc.ca/fnp/Main/Search/SearchFN.aspx?lang=eng>

[26] 8 CFR §289.1   Definition.

 

The term American Indian born in Canada as used in section 289 of the Act includes only persons possessing 50 per centum or more of the blood of the American Indian race. It does not include a person who is the spouse or child of such an Indian or a person whose membership in an Indian tribe or family is created by adoption, unless such person possesses at least 50 per centum or more of such blood. [Emphasis added].

 

Code of Federal Regulations, Title 8 (Aliens and Nationality), Chapter I – DEPARTMENT OF HOMELAND SECURITY, Subchapter B – IMMIGRATION REGULATIONS. Visited March 4, 2016. Online:<http://www.ecfr.gov/cgi-bin/ECFR?page=browse>

[27] Susana Mas. CBC News. Trudeau lays out plan for new relationship with indigenous people. Posted December 8, 2015, on cbc.ca. Visited March 5, 2016. Online: <http://www.cbc.ca/news/politics/justin-trudeau-afn-indigenous-aboriginal-people-1.3354747>

[28] Id. Recalling the 5 promises of the Liberal election platform, the Prime Minister prioritized: (1) the launch a national public inquiry into missing and murdered indigenous women (as already started); (2) making significant investments in First Nations education; (3) lifting the two per cent cap on funding for First Nations programs; (4) implementing all 94 recommendations from the Truth and Reconciliation Commission; and (5) repealing all legislation unilaterally imposed on indigenous people by the previous government.

[29] Id. “The prime minister also vowed to implement all 94 of the recommendations from the Truth and Reconciliation report, starting with the UN declaration on the rights of Indigenous Peoples.”

[30] Canada NewsWire. Media Advisory – Rt. Hon. Prime Minister Justin Trudeau to Visit Tsuut’ina First Nation. Visited March 4, 2015. Online: <http://www.morningstar.com/news/canada-news-wire/CNW_20160226C2785/media-advisory-rt-hon-prime-minister-justin-trudeau-to-visit-tsuutina-first-nation.html> Honoured with the receipt of a headdress at the event along with the Prime Minister, was the Assembly of First Nations Chief, Perry Bellegarde.

[31] See e.g. Tiar Wilson. CBC News. Hopeful indigenous reaction to Justin Trudeau’s cabinet picks. Posted November 4, 2015, on cbc.ca. Visited March 5, 2016. Online: <http://www.cbc.ca/news/aboriginal/aboriginal-leaders-react-cabinet-choices-1.3303972> Assembly of First Nations Chief Perry Bellegarde was especially pleased with the recognition afforded to Canada’s Aboriginal Peoples in the appointment of two MPs from Canada’s First Nations to significant Cabinet positions – Jody Wilson-Raybould, regional chief of the B.C. Assembly of First Nations was named as Canada’s minister of Justice and Attorney General, and Hunter Tootoo of Nunavut was named as Canada’s minister of fisheries and the Canadian Coast Guard.

[32] One example of policymaking in Canada without proper consultation (if at all), is the entire Indian Residential Schools program, as now and conclusively agreed.

[33] The Jay treaty and its one-way impact is a clear, contemporary, and lasting example of a treaty that could have been very easily interpreted in a different and more inclusive way that was consistent with its framers’ intentions, a long time ago.

[34] Countless examples of disastrous policy implementation in the United States were seen in the mass and forced dislocations of several indigenous communities; as accompanied by other actions that some have called genocide.

[35] See text, below.

[36] This rotation might be by ascending commissioner age, descending commissioner age, alphabetic nation name, alphabetical commissioner name, or as the Aboriginal Commissioners (AC), themselves, may otherwise provide.

[37] There are a several additional reasons for Canada to provide a home base of operations for the Commission:

 

(I) FUNDING – Indian Tribes and Indian Bands have jurisdiction over their own members and can therefore (I think in most if not all cases, as subject to local laws and their ability to exercise powers tantamount to taxation), levy modest assessments against the “on-reserve” income of their citizens and generate sometimes significant “own source revenues”. See e.g. Daniel Schwartz. CBC News. How does native funding work? Posted February 6, 2013, on cbc.ca. Visited March 7, 2016. Online: <http://www.cbc.ca/news/canada/how-does-native-funding-work-1.1301120> Counting all of the Tribes and Bands across Canada, Mexico, and the United States, the significant funds so raised can be matched singly, doubly, (or even more, now that the 2% funding cap for First nations programs in Canada will soon be history), by those 3 national governments of North America that have the most direct stake in the Commission, its work, and its ultimate beneficiaries. Of course, these 3 parties would also pay the way for their own 9 members on the Commission.

 

(II) VALUE – With such a large number of Indian Tribes geographically based in the United States, including several with significant business and resource industry interests and revenues, the exchange rate of United States dollars to Canadian dollars will likely prove quite advantageous to them in money that invariably goes further in a friendly neighbouring country with a stable government and a well-educated, multicultural, and multilingual population.

 

(III) LEVERAGE – As host to the United Nations Secretariat, the International Finance Corporation (World Bank), and the International Monetary Fund (IMF), amongst others, the United States has seen significant and sustained multipliers in the local economies where these entities are based (New York and Washington, D.C.), and political leverage. Canada is already host to the International Civil Aviation Organization (ICAO) in Montreal. Establishing the proposed Commission in Alberta at this time, would provide a much needed economic boost to both that province and Western Canada, and immeasurably boost Canada’s standing, and diplomatic and political credentials in the international community due to first mover advantage. Such an initiative would also show that Canada was living up to Prime Minister Trudeau’s call for a new dawn in “sovereign to sovereign relationships” with Canada’s Aboriginal People – especially by extending that new dawn to all of the Aboriginal Peoples of North America.

 

[38] See supra, notes 27–31 and accompanying text.