Walk-a-Mile Film 3 - A Legacy of Struggle

The third film, A Legacy of Struggle, addresses residential schools. We will explore the historical and contemporary context.

Ok, so just to review, we’re going back to school and we’re trying to understand just what’s our story?

Here, again, I am providing a resource not found in the Walk-A-Mile films. The clip above is from the Globe and Mail, May 28/29, 2015, an excerpt from a speech by the chief justice of the Supreme Court of Canada. see source.

Watch the video

The essence of her speech is that Canada, the Canadian state and Canadian society, committed an act of “cultural genocide” against Indigenous Peoples in the systematic, institutionalized, church-state co-ordinated project called residential schools which lasted from 1880, a decade after Confederation, until the last school closed in 1996. Thus, this policy and project of “cultural genocide” lasted for over a century and is essentially contemporaneous with the life of the Canadian colonial state established in 1867, known as Confederation.

In a nutshell ()which requires more detail to fully appreciate), the Canadian state, through the service of Indian agents who exercised colonial authority over Indian reserves, gathered up young Indigenous children and sent them to residential schools often many hundreds of miles away.

The simplest way to describe residential schools, beyond the stated government objective of “killing the Indian in the child”, was to destroy native languages, to destroy native cultural practices and native social relationships which bound Indigenous families and communities together, to undermine native economic self-sufficiency and to dismantle native political decision-making institutions. That, in a few words, is what is meant by cultural genocide.

The real question is…has anything really changed?

Are these objectives, ultimately, still the objectives of the Canadian colonial state?

So I could not help but consider, given the chief justice’s remarks, how would old John A. do, if he had to stand up before the Supreme Court of Canada in the early 21st century and make the case for his plans for his “national dream” of railroads and settlers under a colonial regime that stretched right across the lands “reserved for Indians.” Would the justices come back and say,

No, I’m sorry sir, that would be cultural genocide, what you propose is immoral and unconstitutional, it violates the fundamental principles of our sacred treaty relationship with Indigenous Peoples, it violates their rights and their persons as self-determining and self-governing peoples.

Might they also add,

It would violate our sacred promises to the spirits and to the ancestors with whom we promised to share this land.

So why did the Canadian government of 1867 believe it had the legitimate right and authority to do the Indian Act, residential schools, the 60s Scoop?

Was all of this covered by those treaties?

Are all these colonial activities of “cultural genocide” covered by those treaties? Is this what “cede and surrender” means? Extinguishing rights and surrendering land and cultural genocide, if we so wish? What is the moral ground for all this? Or is this some strange nightmarish world of contradictions, hypocrisies and pathological rationalizations?

Keep in mind, on the other side, we have a principle of sharing and non-interference. Kind of begs the question, which world do we want to live in?

So how did we get to here?

So to cut through the thickets of history’s many trails and tributaries, here is the key to the colonial kingdom: Section 91 (24), 1867.

Once we understand the fuller meaning of this claim, we will understand where we stand.

The British North America Act basically confederates four British colonies into one federated colony: the Upper and Lower Canadas, Nova Scotia and New Brunswick.

When they got together in Charlottetown and later Québec City in 1864, they came up with a list of a division of powers between the new federal government and the provincial governments formed out of the four separate colonies.

Section 91 simply lists the areas of jurisdiction of the federal authority. Item 24 simply states the inclusion of “Indians and lands reserved for Indians” in that list.

With this stroke of the pen, the new colonial government claims exclusive and universal authority over “Indians and lands reserved for Indians.” The details of what this means will be spelled out in the Indian Act, 1876. For now, it is simply a statement of the constitutional principle that “Indians and the lands reserved for Indians” fall under the exclusive legislative authority of the Parliament of Canada.

Thus, this is the constitutional embodiment of what I will simply call the first Colonial Principle, claiming political control over another people and country.

Is this claim consistent with the treaty relationships with Indigenous Peoples?

Please note the reference to the “land reserved for Indians.” What’s that all about? How did the fathers of Confederation gain the right to claim the land that was, by the British rule book, recognized as reserved for Indians?

If by the British rule book, it’s reserved for Indians, how could the colonials just come along and claim it? What’s the story here? And remember, behind the treaties are distinct sovereignties. If the British Crown has told its colonial subjects that the land is reserved for Indians, what’s the “Indian” position in all this?

Time to keep digging…

So here, historian Christopher Moore references Confederation historian Peter Waite’s description of the moment when the execution of the Confederation idea took hold. And we might add, the moment the Colonial Principle of the new Canadian State received its bubbly blessings.

So the translation: they got drunk and just made s--t up.

And from our perspective, guess who was not invited to this party?

Answer: the folks whose land was about to be carved up by the folks at the party.

Hmmm.

Was this all covered by those treaties?

So let’s leap ahead to 1982, a century or so after that Confederation party where the brand new, bright and bubbly, colonials carved up the land reserved for Indians and asserted exclusive, sovereign authority over those lands and them Indians.

This is the Constitution Act, 1982, very much associated with Pierre Trudeau, prime minister of the day. The same prime minister, who along with Jean Chrtien, as minister of Indian Affairs, attempted to eliminate Indians constitutionally in 1969 through the White Paper of assimilation. There was a backlash: Trudeau woke us up.

As a result, in 1982 we got, along with a homegrown amending formula and a Charter of Rights and Freedoms, Section 35 (1) whereby existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

Well, well, well, guess who finally got to crash that party of colonial privilege the fathers of Confederation threw for themselves back in 1864.

So here is our fundamental question:

• is Section 35 (1), 1982 compatible with Section 91 (24), 1867?

Section 91 (24) claims that Indians and the land reserved for them falls under the exclusive legislative authority of the federal government.

Whereas, Section 35 (1) says the existing aboriginal and treaty rights of aboriginal peoples in Canada are recognized and affirmed.

So is Section 35 (1) affirming and invoking the Spirit Animals of Indigenous sovereignty affirmed and invoked by those doodem doodle treaties of the era of peace and friendship?

Are we in fact asserting here, the treaty sovereignty of Indigenous Peoples? How is this possibly compatible with extinguishing Indigenous rights and surrendering Indigenous land universally and exclusively to the federal colonial authority, the Colonial Principle of Section 91 (24) of 1867?

Are we in fact staring directly into the pathological contradiction recorded in the Canadian constitution?

• the incompatible founding stories of Confederation Canada?

There is one fundamental truth about treaties, sovereignty and subjects:

• you do not do treaties with legislative citizens or subjects!

So if the descendants of the fur trade society’s peace and friendship treaties, still have aboriginal and treaty rights, then that must include the continued right to make treaties. But you do not make treaties with subjects!

So, after 500 years, and our brief time back to school for what we missed, or had hidden from us, the first time, the question remains:

• what’s our story?

So in order for there to be reconciliation, do we need to deal with the incompatible and contradictory founding stories at the heart of the Canadian colonial constitution?

Is Canada governed by an exclusive Crown sovereignty or by an aboriginal and treaty sovereignty?

Is the story of Canada the story of sharing or is it the story of the cede and surrender of Indigenous land, and of the extinguishment of Indigenous rights? And how is extinguishment, cede and surrender, connected to cultural genocide?

And just what is the appropriate response to the colonial project of cultural genocide?

What is the appropriate moral and cultural response, the appropriate political and constitutional response, the appropriate economic and military response to cultural genocide?

Should we be looking to the Truth and Reconciliation Commission, the Royal Commission on Aboriginal Peoples, the United Nations Declaration on the Rights of Indigenous Peoples to come to terms with these questions?