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Fall 2011
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Colonization as a Global Experience: Theories of Colonization, Conquest and Extinction 9/8/11 9:39 AM
← Movie Review:
Disease hit Wampanoag the hardest, so weakened their power in
relation to other First Nations groups in the areas, and so teamed
up with the Europeans to try and even out balance of power
Opened up space for Europeans to come in.
o Religious: Bible suggested their would be empty space, and
interpreted it as divine intervention
Religious
o European: Moral authority to act on behalf of the Wampanog,
claim jurisdiction on behalf of god and thus the church
Assimilation in Church camps, active conversion goals,
while not so much on the part of the Wampanog
Wampom:
o Viewed as currency by Europeans as a currency
o Wampom has important cultural role in agreement making,
that ensured that the agreement would be sacred, and not
able to be broken
o Different understanding of the nature of the agreement
o First example of treaty type agreements
Perceptions of threat
o Relationship between the women
o Europeans brought women and children which in Wampanog
society implies that they weren’t going to be violent, because
Wampanog wouldn’t involve women and children in war
o Europeans viewed as ‘savage’ because of pre-emptive raids
on entire communities
o Wampanog viewed as ‘savage’ due to lack of European style
clothing and abode
Surprises in movie:
o Wampanog initially pitied the Puritan settlers
o Speed at which settlers arrived
o European power dynamics:
Puritans couldn’t go back to England, they would either
make it or die
Huge population growth, where they weren’t totally able
to keep up
Lots of turmoil and power shifts between empires
French, English, Dutch, Spanish influences in the
south
Key points:
o One of the first English experiments with treaty making
Ambiguous how successful it is
Interplay between two impulses on English side
Assimilation, Conquer, Demand, Domination
Treaty, Compromise et
English never able to totally sort out which way
they are going to go
o Prof: This uncomfortable interplay between two sides
continues until today on behalf of the English “settlers”,
continues to be unresolved
←← Colonization
The acquisition by a nation of other territories and their peoples, in
the case of indigenous peoples in North America, we look at
European Colonization
← European Colonization
A political and economic phenomenon where European countries
explored, conquered, settled and exploited other territories
Not all countries did this in the same way
← Why do nations colonize
Exploit natural resources
o Out of it domestically, and go to seek it elsewhere
Create new markets for the colonizing country
o China market – so many people there, they will buy more of
our stuff
Expand living space for colonizer’s population
o Not enough room, so expand elsewhere (ie. North American
situation)
Extend colonizer’s way of life (more European)
o Eg. Puritans
Extend “civilization” to “backward” peoples (more European)
o Evangelical aspects of Christianity may be a pretty strong
drive of this aspect
← Types of Colonization
Exploitative
o Profit
o Expansion of power
o Religious conversion
Settler
o Expand power
o Profit
o Escape tyranny and oppression
o Religious conversion
The two broad categories overlap in many areas
← Different Models of European Colonization
Spanish
o Attempted to put themselves at the head of existing power
structures
o Hierarchical societies
o Local/centralized urban style areas – missions
Would ‘encourage’ people to move to these areas
o Mercantile economy
Came looking for gold
Set up sugar/slave trade
o Business, exploitative style
Portuguese
o Similar to Spanish
o More economically driven, less conversion/forced
assimilations
French
o South: large plantations, slave trade
o Quebec: integrationist
o Nature of the resources – there is no such thing of a beaver
“mine” so you need to work with local populations, because
you can’t concentrate the population in a single area
Dutch
o Very privatized, decentralized, high reliance on companies
o Dutch East India Company
English
o More decentralized, privatized, not necessarily sent by the
crown
o Hudson’s Bay Company
o Reliance on legal structures
Importance of honor codes to culture
Want a legal legitimacy to back them
Leads to the difficulty defining how they are going to
interact
← Doctrine of Discovery - one of the first international law
An international legal principle which enabled colonization
Provided legal justification for governmental and property claims
over territories and inhabitants
Justified by religious and ethnocentric ideas of European superiority
Europeans who arrived first in new territories gained property,
governmental, political and commercial rights
← Origins of the Doctrine of Discovery
Crusades -11th century
o Claim the holy land for Christendom
1400s – Series of Papal Bulls
o Spanish/Portuguese conflict over who has the right to which
territory, so they ask the pope to sort it out
o Which part of the world belongs to Spain, to Portugal
o Pope says: whoever got their first, whoever “discovered” it,
only Europeans counted
← Elements of Doctrine
First discovery – European
o Discovery creates titles, full sovereignty
Occupancy and possession
o IN order to establish claim of discovery, you had to stay there
and create a form of presence, to fully claim sovereignty
o If you could claim the mouth of a river, you could claim the
entire watershed
Preemption
o Who ever is in control, has the sole right to buy land from the
local people
Indian Title
o Related to #1 and #2
o After discovery, native people automatically lose full title and
sovereignty over their lands
o Retain rights to use and occupy the land, but no longer
sovereignty, and it could last forever, until there is an
agreement for succession
Tribal limited sovereignty and commercial rights
o Rights are only at the pleasure of the European power
Contiguity
o Watershed example
o You have dominion over reasonable amount of related land
Terra Nullius
o Aka. Vacant Land
o Basic Foundation of Doctrine: if Europeans aren’t there, the
land is legally empty
Christianity
o Pope defines it
o By European – meant Christian countries
o Some sense a duty to colonize
Civilization
o Civilized countries are Christian
o Superiority of European civilization, so its a blessing/privilege
that they bring their culture to other lands
Conquest
o Military victory is considered an automatic transfer of
sovereignty
← Importance of Flags (1490s)
Flag symbolizes all of the elements of Doctrine of Discovery
Become central to the European colonization experiences
← Peoples all over the world operated with the same set of values, but
the Europeans codified it
←← Efforts to Repudiate Doctrine of Discovery
Never been officially overturned
UN Declaration
Quakers
Episcopal Church
Presbyterian Church
Parliament of the World’s Religions
United Nations Permanent Forum on Indigenous Issues 2010
Terminology 9/8/11 9:39 AM
← Teacher- Nation: Anishinabe, Language: Ojibwe, Tribe/Band: Lake
Superior Band of Ojibwe, Reserve: Keweena Bay
←← Aboriginal – yes
In Canadian context includes First Nations, Inuit and Métis
← Native - yes
← Indian (status vs. non-status) – non-status in Canada
← Native American - yes
← American Indian – yes (older term)
← First Nation (s)/Inuit/Métis
← Capitalize or not??
Personal preference, just please be consistent
First Nations, Inuit, Métis, Aboriginal - Always
Indian – if talking about legal/political status
← Indigenous
Used in a global setting for a political purpose
←← Why is definition so difficult:
Everybody is indigenous somewhere, so why do some people qualify
while others do not.
Several indigenous groups haven’t been there all that long, or may
not be the original groups there
o Eg. Maori in New Zealand, only been there for 400 years or so
more than the European settlers
A universalizing term that overlooks individual experience, vast
variation in circumstances
Indigenous vs. ethnic minorities
Tribal vs. indigenous
Are settlers indigenous?
States want to narrow definition; Indigenous people want broad
definition
Difficult to figure out who arrived first in Asia, Africa and Europe
←← UN Declaration on the Rights of Indigenous Peoples
Passed in 2007, after 30 year struggle at the UN
No definition of indigenous in the declaration, entirely based on self-
identification
o State resistance to a lack of a definition
o HUGE victory of indigenous peoples
←← UN working definition of elements of indignity
1. Pre-colonial presence
o easy in North America, not in Asia/Europe/Africa
2. Continuous cultural linguistic and/or social distinctiveness
o more difficult in North America
3. Self-identification and/or recognition by other indigenous peoples
← All 3 categories are very subjective, and leads to very little clarity
on these issues
Missing category: connection to land/territory/geography, left out,
victory on the state side
←← Indigenous People of the World
More than 300 million people worldwide
6% of global population
Live on 6 continents
More than 5000 distinct peoples in 72 countries
←← Global Distribution from 1990
Asia 80%
South America 7%
North America 6%
Africa 4%
Australia/Oceania 3%
Europe 0.1%
←← Countries With Indigenous Majority Populations
Greenland
Guatemala
Bolivia
Mongolia
Vanuatu
Western Samoa
Kiribati Nauru
←← Indigenous populations over 1 million
Canada
USA
Much of Asia
Central Africa
Western S. American
←← What do they have in common
Discrimination/Marginalization
Assimilation
←←←
Discourse 9/8/11 9:39 AM
← Definition: a particular way of representing ideas and the relations
between them
A group of statements which provide a language for talking about
o i.e. a way of representing a particular kind of knowledge
about a topic
← A way of constructing knowledge
← Limits the way a topic can be constructed
←← Foucault
20th century French social theorist
Statements work together in “discursive formation”
Discourse implicates practice
“Discursive practice”
o the practice of producing meaning
All social practices have meaning, therefore all practices have a
discursive aspect
← There are no facts about the social, political or morals world
o Look for the meaning instead
o 1. Power has the ability to make things true
power produces knowledge
o 2. Discourse is one of the systems through which power
circulates
Discourse produces knowledge which constitutes power
o Those who produces discourse have the power to make it true
← Brantlinger
Social Darwinism
o The “doom” of “primitive races” cause by the “fatal impact”
with white Western civilization
o Disappearance is inevitable
Causes of Extinction
o 1. Violence
o 2. Disease
o 3. Savage Customs
Self-exterminating savage
←← Extinction Discourse
According to the discourse, the extinction of Indigenous peoples is
o Inevitable
o Self-fulfilling
o Universal
← Restall’s Challenge to Dominant Discourses Surrounding Indigenous
Peoples
Localized nature of native responses to the Spanish
Local identities remain paramount
Denial of native defeat, sometimes inverted it
Native exploitation of Spanish
Borrowing from Spanish characterized as local
Tenaciously sought ways to continue local ways of life and improve
the quality of life
Discourse of evolution, adaptation
Exclusion of Indigenous Peoples from Decolonization9/8/11 9:39 AM
← International law was both a universalizing discourse and a form of
cultural imperialism that defined the normative foundations for the society of
states creates by the expansion of Europe – Paul Keal
←← What does this mean?
← How can international law function as a universalizing discourse and a
form of cultural imperialism?
←← International Law and the Primacy of States
Treaty of Westphalia (1648) invented modern state system and
international law
International law privileges states over all other structures
International law as it emerged/been practiced over the centuries
was closely connected to narrative of empire, imperialism,
colonialism, racism – Henderson
Indigenous peoples as “primal anarchy”, “other” – Hobbes
Congress of Vienna (1814-15): Indigenous peoples as non-persons
in international law, they were exempted from it
← Modernization
Definition: the adoption of European ideas and values
Inevitable
Means throwing off tradition and adopting a market based
economy, nation state government, laws and Western culture
← Indigenous Peoples
Challenge the framework, worldview (the binary of state vs. other)
Want to maintain varied aspects of own traditions, values, etc.,
while still understanding that states are there in international law
← UN Decolonization
Adopted paradigm of the nation state
Blind to Indigenous systems of governance
Excluded Indigenous Peoples
Decolonization = Independent, territorial, sovereign statehood for
former colonies
Nation = state, still worked in the binary
← Early International Indigenous Activists
Deskaheh – First Nations group w/ treaties with USA and Canada
that weren’t being recognized, went to League of Nations to settle
dispute, told was not a state, and should go home and work it out
with Canada
T.W. Ratana – Maori activist from New Zealand
o Treaty signed in 1840 not being respected by 1850, so early
1920s, was told by League of Nations the same thing as re.
Canada
← History of Decolonization
League of Nations (1920s)
o Deskaheh (1923)
o Ratana (1925)
o Turned away – Domestic concerns
UN Charter (1945)
o “Peoples” have inherent right of self-determination
o inherent rights – govt cant give them or take them away
o “Peoples” left undefined
o Meant: self-determination means the right of peoples to
independent framework, maintaining statehood framework
o Belgian Thesis: Extend right of self-determination to
Indigenous peoples living within nation-states
USA, CANADA, NZ, AUS – no, we mean colonies outside
the territories
← The Indigenous Exclusion
1960: UN condemns colonization, launches decolonization efforst
Decolonization emanates from principle of self-determination
Salt Water Thesis
o Self-determination applies only to overseas colonies, those
lying over “salt water
o Indigenous peoples specifically exempted from decolonization
o Indigenous peoples not “peoples” but now domestic
“populations”
Movement to include Indigenous peoples in decolonization, with the
right of self-determination
Until today: Indigenous peoples use the term peoples,
governments use the term populations
Guest Speaker: Larry Grant – Musqueam Elder 9/8/11 9:39 AM
← Larry Grant - Musqueam elder and language instructor at UBC
Born & raised with a Musqueam identity
Gives a short speech in Musqueam: My name is Larry Grant, I come
from Musqueam, my ancestors were here to greet first people
← Land – Point Grey to Lions Bay to Indian Arm to Maple Ridge to Fort
Langley to Tsawassen
← Capt. Vancouver arrives ad sees many empty villages because of
disease which came across north America from the south and the southeast
During the 1500s-1700s
Explorer mandate to claim and occupy land
← People have been on delta since last ice age, starting from Fraser
Canyon and the mouth of the river used to be at the Port Mann bridge
St. Mungo site – Musqueam interpretation centre at the south
footing for the Alex Fraser bridge
← Identity
People can from the land and those colonizing
When south footing going in, asked for it to be moved to protect
archeological site, ignored to protect the “Sudbury House” colonial
era pub
Disregarding the importance of what was there, disrespect to first
peoples, not able to collect evidence to corroborate oral history
←← Maori – have stories of travel to arrive where they did
← Musqueam have no stories of travel, journeys to arrive where they are.
History of their people has them as always being there
← Oral society
Stories repeated many many ties to ensure history passed down
Chose to remember, disregard
← Every family has a historian who takes stories from older generations
and remembers them. Ability is recognized at a young age, child who is able
to remember and maintain those stories
Genealogy, cultural activity, geography
Not common practice in western society, oral history not accepted
unless it is written down
Everyone’s biases will come out in their stories, including Mr.
Grant’s. There are things that people forget, but there is no manual
to look them up in, people fact check against and collaborate with
other family members
← Meetings
Hang up your anger, your differences, outside the door, we are here
to learn something
When a speaker is designated at an event, they become the
historian by default, there to relay the message of the host
o Diplomatic
o Removed from the host’s concerns, so able to present them
calmly
o The host does not fill this role because they are too close to
the issue, and anger could more easily come out
Unlike the Speaker of the House, no agenda, no opinion. They are a
speaking tool Almost always male, because of the power of the
voice & presence of speaker, but it is occasionally a woman
o No a reflection of society, which is bilateral, not maternal or
paternal. Connections to many communities up and down the
coast
←← Larry Grant’s Story
Summer spent fishing with aunty and great uncle who didn’t speak
English. Spoke different dialect on mom’s side of the family
Not status, went to public school. Eng of grade 8 went to family for
2-4 years to learn about family. Wanted to make sure he could
continue to go to school
o When he came home he was speaking the other dialect and
got in trouble. Told to speak Musqueam instead because
language is an important part of identity and who you are
o English doesn’t define who you are if it isn’t your first
language
Defines what resources you have in your territory,
plants, animals, stories, creation stories. Able to
scientifically tear both apart but they are important to
all peoples
← Orative stories
Myths. Musqueam stories have them always here.
Great-grandparents still alive with their stories
o Many young people not aware of them, as it takes a complete
community to raise a child, not just an individual family
o This is what the residential school system did, assimilation to
English boys and girls
Outlawed language – central identity factor
o Post-residential school, kids would come home and argue with
elders about the truth of their stories
No words for god, angel, devil, heaven, hell in the Musqueam
language
o Society has been around 7000 years more than the bible,
there is no identity with a single person-god-creator
o There are stories about many different things, all
transformation stories are in a sense creation stories
Wreck Beack transformation story
o Site of fresh water and someone divided them, wasn’t going
to share it
o 2 rocks there, 1 larger, 1 smaller
← NAIPA – North American Indian Phonetic Alphabet used for writing
because ther are unique Musqueam sounds
Must be spelt properly or ignoring identity
Eg. Robby Burns and his moon licht nicht (moonlit night)
← Musqueam Story
Don’t go to the boy at now 25th and Camosun
o 2 headed serpent that will try to entice you, sounds like a
mallard duck
o if you hear the loud duck, don’t go near
o eventually runs out of food because the local people don’t go
there
o went to the sea to ear, so heavy it created Musqueam creek
o its poop killed all plants, and new ones grew a year later
← Little nuances get lost in translation, lost parts of identities there too
←← Personal identity
I am from Musqueam
Born in Agassiz in the middle of the night during hops harvesting
o 2-3 months premature, unusual to live at the time
Everyone worked for Grandfather, all money went to him to care of
all
o Put in a shoebox, mom allowed to stay with him 24 hours a
day, normally would go right back to work after birth
Grew up with grandparents in Musqueam
Spent a couple of year in reserve on south side of New West
o Only aboroginals could live on reserve
Dad is a farmer from China, arrangedish marriage, courted in-laws
o Dad couldn’t live with mom on the reserve because of Indian
Act. Grew up in a family kept apart by law, essentially a single
parent family
o When parents married (4 years old), became non-status and
didn’t go to residential school, went to public school
o Went to school in China town at the Chinese Presbyterian
church, then Strathcona (DTES), VanTech grad 1955
Fairly long commute to Van Tech from Musqueam
2 kinds of discrimination
o Musqueam identity (family, stories, culture)
Canadian governent said not Indian, but Chinese, no
residential school for you
Now viewed as a god-send, and going to public
school with a wide selection of different
immigrants
o Saw all types of social stratification (much in part of
colonization)
Purpose: individual affluence and empire powers akin to
today’s multinational corporations, benefit of the few,
not the many
o Before Residential schools, egalitarianism central to
Musqueam teachings. Rich person is the one who shares the
most
2 types of riches – physical resources, oral traditions
o If it was all about me, I wouldn’t be here to share my story
with you
How to understand government control of identity
o Asked mom: you’re considered different
o Looking Asian during WWII, cowboys & Indians dynamic
(wanted to be John Wayne, why always on the losing side)
Status
o 1975 status reinstated after 20 year court battle
Dr. Coulthard’s Lecture - Recognition 9/8/11 9:39 AM
← Indigenous peoples and the politics of recognition in Canada
←← The turn to recognition: a political history of aboriginal rights in Canada
← Arguement
Since 1969, the colonial relationship as shifted from a
domination/assimilation structure to one that is maintained through
granting aboriginal rights in a very limited way
o Colonial relationship is facilitated through the granting of
rights to aboriginal people
What the state structure gives to people, not
necessarily what the want/require
Rights in 3 areas
o Rights to lands
Territorial rights
o Rights to self-government
Political rights
o Economic rights
Economically benefit from land development
What is a colonial relationship
o Chracterized by domination
o Power (economic, gender, racial and state power, capitalism)
has been secured into an unequal relationship between
indigenous and non indigenous people, as represented by the
state
o End goal : disposition of indigenous peoples of their lands and
self-governing authority over that land
Canada needs land for state-formation, economic
development, settlement
o Canada has to gain land from indigenous peoples
Originally through state muscle (1800s onwards)
Unilateral action on/over indigenous peoples for
the purpose of dispossession
Now through treaties
Land central to the relationship in Canada
Indian Act
o End goal: creates legal category of Indians, and then proceeds
through its policies to eliminate them as a distinct entity. Get
rid of Indians
o Get rid of them through assimilation as legally and culturally
different
o Once you get rid of Indians, you don’t have the Indian land
question anymore, and then you can proceed land settlement
o Indian people didn’t want to assimilate, which is why it wasn’t
the quick process as anticipated by the government, but still
an issue today
← The turn to recognition – more subtle colonial relationship
The White Paper -1969
o Get rid of the Indian Act (Trudeau and Chretien)
Protection of individuals as equal under the law
Dangers: group rights in Quebec and First Nations,
collective self-determination rights
Super-individualist understanding with rights and
liberalism
Problems of Indigenous communities stemmed from the
fact that Indians were treated unequally in the law
Saw Indian act as discriminating against Indian
people (true) and that this was the source of their
trouble
Views as a simple legal discrimination issue
Simplistic terms = simplistic solutions
o Blanket Legal and Political Assimilation for Status Indians
Indian Act and constitutional basis for differentiation
would be eliminated
Remove Indian act
BA 1867 amended so Indians no longer seen as
government responsibility
Canada would publicly recognize First Nations
contribution to Canadian culture
Within the framework of Canadian state
First Nations should receive services from the same
channels as all other Canadians
91.24 of BNA – Federal govt has jurisdiction over
Indians and land reserved for them
eliminate this
Control of Indian lands (reserves) handed over to
Indians in the form of private property
o Get ride of legislation that legally distinguishes them from
other Canadians, and absorbing them
o Maybe positive in theory
Trudeau viewed as making people more equal, promote
equality
Repeals a bad, racist, colonial piece of legislation
o Potential bad
First Nations people not consulted, dominant culture
assumes what is best for the “childlike” native
population
o First cause for First Nations political unilateral action, as
ultimate endgame of assimilation and dispossession
Amount of political pressure, white paper formally
shelved in 1971
The Calder Decision -1973
o Supreme court decision about Nishga’s Nation in north-
western British Columbia
About aboriginal title: ownership and jurisdiction over
land
Deciding if the Nishga hold title to their lands
SCC rules against the Nishga 4-3
o The Nishga lost, but the way they lost is important
3 rules that they had title, but it had since been legal
extinguished by the crown
assumption that native peoples aren’t equal, and
don’t have the same rights as European peoples
Doctrine of Discovery/Terra Nullius
3 rules that they still held title to the lands in questions
because it had NOT been legally extinguished by the
Crown
No treaties
Canada: Real estate transactions
Natives: Establishment of nation-to-nation
relationships
1 ruled against Nishga based on a technical question
not specifically related to the content of the case
o Question that remained open:
There was such a thing as aboriginal title that needed to
be dealt with in some way
Explicitly recognized as something
The Paulette Decision and the Mackenzie Valley Pipeline – 1973
o Like Calder, but in NWT
o Put forward by the Indian Brotherhood of the NWT (now the
Dene Nation)
To stop a pipeline going from tar sands up the
Mackenzie valley
Filed caveat with land registry in NWT
We have some interest in the land proposed for
development
Crown felt it had already been dealt with in earlier
treaties
Justice felt that they weren’t going to resolve this in
court, so put together a commission about the nature of
treaties and their nation-to-nation relationship
Still fresh oral history of Treaty 11 and 8
o Ruled that Dene have interest in land claims and have
indigenous rights
o Suggested that Dene title was never extinguished by signing
Treaties in 8 and 11 (1908 and 1921)
o Re-opened the question of existing Aboriginal land rights in
the NWT
o Went back to the Supreme Court
Lost, but only because it shouldn’t have made it to the
Supreme Court, but didn’t mention any issues of land
claims, so that remained valid
The Mackenzie Valley Pipeline Inquiry 1975-1977
o Big oil/gas reservoir discovered in Alaska during oil crisis
Gov’t wanted access and decide to build a pipeline to do
so
Same issues as with the Keystone pipeline now
Evironmental, outside influence etc.
o Established to look into the environmental/social intersts of
the proposed MPV
Because of Calder and Paulette, gov’t needed to
address these issues actively
o Appointed Berger to investigate issues about the pipeline, and
held consultation around the territory
Combined with scientific evidence and indigienous
testimony about social, cultural impact and
environmental impact
Called for a 10 year moratorium on the construction of
the MVP
Goal that it would give enough time to deal with
land claims
o Forced the issue of land claims into the public eye
The Comprehensive Claims Policy: In all Fairness
o Fundamental change in how Canada treats First Nations
peoples
Treaty Process in BC offshoot of this
o Established in 1973 to address issues of land rights in rights of
previous decisions and reactions
Deals with claims to land, where title has yet to be
formally extinguished through historical treaty or other
means (much of Canada)
o Seek certainty over land ownership and jurisdiction, by
exchanging ambiguous Aboriginal rights and title for benefits
clearly detailed in the text of the settlement
o Purpose: Conspiracy Treaty
Create a political and economic environment suitable to
capitalist economic development of Indigenous lands
o BC on finally participated once there was an economic threat
Exchange the uncertainty for the land claims provision
Historically serve the same purpose as treaties do
Land claim agreement makes sure that there is a stable
investment climate over the land
First Nations under existing treaties don’t have access to the land
claims process, except in the NWT where the Paulette decision
applies in recognizing that the federal government committed fraud
re the nature of the treaty
o Why do First Nations participate in land claims when it is such
an unequal relationship
Better than nothing, we can either participate in the
established system and get something, or not, and be
left out of the process
Economic necessity – extreme poverty and lack of
economic resources, which are often aided through the
land claims process
Greed on behalf of some native leaders
The effect of participating on understanding of the
process
← Recognizing Aboriginal Rights in the Canadian Constitution - 1982
Repatriation of Constitution
o Aboriginal peoples needed to have their rights in the
constitution
Via direct pressure on gov’t, the queen and
international venues
You can’t transfer power from the UK to Canada without
recognizing their relationship with Aboriginal peoples
Section 35.1,2,3,4
o Section 1
Recognition of existing Aboriginal and treaty rights
Important because it eliminates historical rights
that are no longer recognized (ex. Native title for
treaties)
Gives the state wiggle room on what is and
is not protected
o Section 2
Who are aboriginal peoples?
o Section 3
For the purposes of Section 1, land claim negotiations
will also be included
o Section 4
Guaranteed equal male and female rights re Section 1,
2 and 3
← Federal government given 3 years to ensure all legislation complied
with constitution and charter
Section 15 of charter compelled changes in Indian Act
←← Recognition of self-government rights – 1995
Constitution doesn’t say what existing aboriginal and treaty rights
are?
o First Minster conferences to establish what these are through
negotiation, this time included major Aboriginal political
associations
o 4 conferences between 1984-1985
o Unable to get any clarity
1995 Decided to recognize in policy
o attempt to stave off litigation
o claimed as an inherent right, but not true, because would
imply it existed before Canada existed, but in practice they
are dictated by the federal government
akin to slightly more jurisdiction than
cities/municipalities
That makes it not very inherent, but more of a power
relationship
← Recognition issues re colonialism
Terms of recognition granted will always be determined by and in
the interest of the colonial power
Over time, these unequal terms of recognition often get “internalized:
by the colonized thus rendering the inequality less pronounces or
even identifiable as inequality
Recap of Identity Guest Speakers & Film 9/8/11 9:39 AM
← Glen: How to get at the resources occupied by the land. The Indians
are in the way of those resources, and so they need to be delt with, to
eliminate that problem. Indian act was the “legal” tool to do this
←← Distinction between Canada/US: Glen said Canada was more subtle,
Sheryl argues that they were similar. Competing motivations between
conquest and treaty making. End goal still to “deal with the Indians”.
Differences maybe better along east-west axis AND the temporal differences.
←← Very important date: 1969 – White Paper. Government proposed
legislation to get rid of any sort of differentiation because it’s discriminatory
- everybody would be equal. Eliminate Indian Status – so there would be no
point to have reserves anymore.
←← What is recognition as described by Glen: in a colonial conquest, they
need to be recognized by the colonial power, uneven situation to begin with.
Granting of rights, on state terms. Being defined on the terms, from the
perspective, using the framework prescribed by the colonial power
structures.
Rights and title can be ceded by agreement with the state. An
exchange in made. Aboriginal title in exchange for some agreement
with the Canadian state.
After these agreements with the state are made, the set of
rights/scope of rights are very limited and are dictated by the
Canadian state. Land and self-determination rights are NOT on the
table, cultural etc. ones are.
The whole process is very problematic, but people still do for a
whole set of real life, practical reasons.
← Violence – not necessarily physical violence, but some sort of political
trouble
←← Australian residential schools and the film
Yes film about Australia, but the same things was happening in
Canada and the USA at the same time with the same thought
processes and motivations.
← Reaction paper – is it cohesive, arguing a particular point. Talk about
something that struck you and how it relates to what you’ve learned in class.
Please take license with it.
Time for about one big question
← Film text citations, just use it in text, same thing with presentations. If
you are doing something from the other readings, please cite formally.
←← Apologies
Australian PM – Feb 2008
Canada 2008
Action that is a progressive motion in a positive way. But doesn’t
come near to enough re policy change
Land 9/8/11 9:39 AM
← First Nations Property Ownership Act
Tom Flanagan has offered this proposed act a s a solution to the
First Nations land problems in Canada
Quick Write – are you in favour of his proposal or opposed (didn’t
actually happen)
o Privatization/Fee simple title. Get of trust status completely on
the reserves
New System
o Full ownership of property, individually and collectively.
Converts to fee-simple title for nations and individuals
o Voluntary
o Removes a First Nation from the Indian Act
Loss of official status and all the benefits that that
includes
o Land can be bought, sold, mortgaged and taxed
Taxes – A person of Indian status is living on reserve,
they are “exempt” from certain taxes
Arguments For:
o Control
o No one else involved
o Terminates a racist legal distinction
Arguments Against:
o Form of assimilation
o Removes some responsibility from the federal government for
the REAL problems on reserve
o The size of the reserves are really small
o People cant afford the taxes, so they have to sell it to cover
the taxes
← USA Case
1871: US Congress unilaterally ends treaty0 making with Indian
tribes
1998: Dawes Act / General Allotment Act
survey tribal land and divide into individual allotments
individual could select or be assigned parcels from 40-
100 acres
what ever not allotted could be sold to non-“Indian”
Surplus Land
Lots and lots and lots sold
1906: Burke Act
o Secretary of Interior decide in an Indian was competent to
manage land and own affairs
Yes - land removed from trusts and declared taxable
With or without individuals knowledge
Land loss through tax foreclosure
o Land held by deceased could be sold off to non-heirs by
secretary
Total land lost under policy – 90 million acres
1928: Merriam Report
o Heavily criticized the allotment policy due to land loss
1934: Wheeler-Howard Act
o Ended allotment policy
o Established banc council government
Remaining effects
o Fractionated heirship
o Checkerboard land ownership pattern
o Landloss
Areas of Concern 9/8/11 9:39 AM
← BOLDLEY READING:
←← Herman Merivale (1861)
←← Categories of Tribal Customs
“Violations of the eternal and universal laws of mortality” (need to
go immediately!!!)
o Cannibalism
o Human sacrifice
o Infanticide
“Less horrible” but still “pernicious” (more time could be taken to
deal with these issues)
o Tribal kinship and social order (ind. Govt)
o Indigenous languages
Simply “absurd”
o Styles of dress
o Innocuous customs
←← Bodley Methods of Cultural Modifications:
← Direct Force (outlaw things)
← SOCIAL ENGINEERING
Help others to help themselves
Education
o Language (colonizer’s or indigenous)
o Remove children from education in indigenous knowledge
o Creating individuals out of collectives (removing children
Religion/Spirituality (outlaw)
Change the ecological climate/environment – removing the source
of food aka remove the buffalo from the prairies
Change the economic climate
← SMITH
Convince members of that culture of the positional superiority of
Western Knowledge
Things get uncomfortable here…
Appropriation of indigenous knowledge
o Contemporary issue
Indigenous knowledge:
o Definition: “cumulative body of knowledge and beliefs handed
down through generations by cultural transmissions about the
relationships of living beings (including humans) with one
another and their environment” – from Royal Commission on
Aboriginal Peoples
o *** note: indigenous languages are vital to indigenous
knowledge
o if no language, impossible to transmit knowledge***
← AREAS OF CONCERN brought to UN by indigenous groups (5)
unauthorized copying
infringement of individual copyright
appropriation of indigenous themes and images
culturally inappropriate use of images and styles
expropriation of traditional knowledge without compensation
← WATCH YOUTUBE CLIP on Issue of Eco Tourism – look at benefits
and their connection to the 5 messy areas listed above:
-Masai in Kenya
-called “New: Tourism ____”
-complexities in this case: commodification of their culture,
bifurication of culture (what the tourist wants to see and what
actually happens – are those cultural practices still happening, etc?)
-showed us some of the big debate – alive and well on both sides
(ind. And non-ind societies)
← International Initiatives to try to address these complexities:
o universal declaration on human rights
o convention on biological diversity
o declaration on the rights of indigenous peoples
o international labour org convention no. 169
o international covenant on Economic, social and cultural rights
o UN agencies
←←← Debate: Indigenous Peoples and Intellectual Property Rights
←-extend intellectual property rights to
included traditional knowledge
-patenting
-arguments for:
-will provide innovation
-incentives for conservation
-moral obligation to protect a particular set
of cultural property
-against extending intellectual property
rights to include ind. Knowledge
-would destroy the social basis necessary
for generation and managing knowlsge
-*ind knowledge is non-capitilist is essence
they believe in collective ownership
-can’t fit ind. Knowledge in western
framework
-is the term “appropriate” applicable to knowledge?
← -you can’t “take someone’s knowledge away”
←← Cases
What is the issue surrounding indigenous knowledge or cultural
property?
What is the indigenous knowledge at stake?
What is the source of the information?
Who are the winners and losers in the case?
Appropriation or protection?
←← Asia: The Bethma Practice in Sri Lanka
Water sharing/trading scheme between communities
o Several thousand years old
World bank studied it, and is not presenting the model to other
seasonally arid areas around the world
o World Bank didn’t ask, and didn’t compensate
← Africa: Hoodia
Weight loss supplement from cactus in the Kalahari dessert
Compensation for limited food source, is by chewing Hoodia
because it’s an appetite suppressant
How do they compensate the San (bushmen) people because this is
there knowledge
← South Africa: Rainforest Plants
Plant effective in destroying malignant cancer cells
o Serious global gain
Plants come from a particular area, how do you protect/patent that
knowledge?
← Arctic: Inuit & Arctic Animals
Seal hunting, not viewed positively in international arena
Part of Inuit cultural traditions, knowledge
← Australia & New Zealand: Indigenous Designs
Tattoos gained through particular acts
Patterns used in popular culture (fashion spreads, hello kitty etc)
Other people’s tattoos
How do you copyright patterns
← North America: Wild Rice
From N. Minnesota, S. Ontario etc
Naturally occurring grain from swampy areas
Harvested by hand
University of Minnesota could make GM rice that grows more
effectively
o Spores move into other paddies and don’t allow natural plants
to reproduce
So sell the Natural rice as distinct from GMO
o Which community gets the proceeds from this, who get the
pattents it?
Commodification of cultural herritage product
Midterm - Exam Prep & Recap 9/8/11 9:39 AM
← Give back test or lose 10 points
Section 1 – short answers (40%)
o Paragraph 1 – define
o Paragraph 2 – discus relevance
5 points each part
make point cohesive and analytical
may argue a side, or present an overview
Section 2 – essay question (60%)
o Choice of 2 fairly broad questions
o 4-5 paragraphs
o structured around a thesis statement
o show me what you know – structure around an argument, but
put in lots of information
all readings, lectures, films etc. are in play here
use evidence
may agree/not agree with what we’ve learned, but
please present a convincing argument
Here is the debate, this what is unresolved, here are
implications
o Use case information presented in class, readings, etc.
o If you can remember the author, great – if not give
contextualization to explain where you got your information –
still better if you can rememeber
Will probably take the entire class – make sure you budget time well
Review:
o Major terms and concepts from the notes and readings
o If it was important enough to do a quick write about it – its
probably on the exam – she will post the questions because
she’s awesome
Court cases – not a law class, so please understand the concepts,
but not what is going on.
Things in both readings and lecture – very important
o In only one or the other – still quite important
←← Recap
Very clear, explicitly stated thesis statement.
Follow this structure
o Thesis statement
o 3-4 major arguments, all linked to thesis statement
o some form of evidence for each statement, perhaps 2 pieces
readings, lectures, media experienced
Recognition argument paper
o Problem: strong tendency to reify the state
Turning the state into a solid object, rather than
considering it’s multifaceted nature AND the people the
make up the state
o Recognitions is a fairly new approach by the state, replacing
explicit assimilation
o Glen is trying to say the politics and language of recognition
will not fundamentally/substantially alter the colonial
relationship
← Should have included why not having a definitive definition at the
UN was a victory for IP
← Knowledge: collective nature, how it has been appropriated without
the consent of IP, and how it is a difficult system to rectify in
capitalism
← Self-determination: right of IP to make its own decisions,
relationship to self-governance, relationship to sovereignty, some
authors and what they have to say about theses issues
← Salt water and Belgian thesis: discussion on decolonization in the
UN, not groups internal to the land mass, should have mentioned in
some manner, IP weren’t included in the concept of self
determination, there were viewed not as a peoples, but as a
population
←← Include main points, debate and readings in all answers.
Self-determination, self-government and sovereignty9/8/11 9:39 AM
← What is the difference between the three concepts for indigenous
peoples (my thoughts)
Self-govt – practical, on the ground institutional practice, within the
existing sovereign state structures, not too different from municipal
or provincial power. They do not have sovereignty in Canada, but
they do have this
Self-deter – inate right, not needing to be granted from others
Soveg – based on state systems, the international relations
program: exclusive, recognized by other states, rights to
unchallenged rule of law over a territory
←← These terms are confusing and politically contentious
Aotearoa/New Zealand: Maori flag controversy
o 2008/2009 push by from Maori people to have the Maori flag
flown on the auckaland harbour bridge on their national day
(Waitangi day) – day of treaty signing
o 2 flag poles, and on major national holidays they fly the
applicable country’s flag (bastille da – france)
o Viewed treaty as a partnership, not subservience, most NZ
don’t feel this way
Tino Rangatiratanga – Maori word: sovereignty
o Waitangi Treaty in 2 languages
Maori version – sovereignty NOT seceded to the crown
English – sovereignty is seceded to the crown
o How much separatism is being asked for?
In international law – when a treaty says 2 different things in 2
different languages, common law says that the treaty should be
interpreted as to what the indigenous believe understood it to mean
at the time. – In practice this doesn’t happen, but there are
examples of it being applied in all common law colonial countries
←← Why were the treaty terms between Maori and the England so much
more “generous” towards Maori?
At the time Maori very powerful, fearsome warriors, the English
people were not in a position of as much power as in other colonies
←← Politics, Identity and Politics
Until the 1980s there was no universal Maori identity, but rather to
the individual tribes
Use of the Maori flag definitely originated as protest flag
←← Sovereignty
International law understanding
o Absolute power or authority
Over a particular territory
o Independence of a nation state, statehood
o ‘Totality of international powers’ (Crawford 1979)
o External sovereignty
Internal sovereignty = political and legal authority within nation-
states (DePuis 1987, Lashi 1921)
o Federalism
Shared within the state with the provinces etc.
NEW ZEALAND is NOT a federal state, so the concept of
internal sovereignty is more contentious
o Exists within a sphere of authority
←← Indigenous Sovereignty
Asch (Aboriginal Self-Government)
o Indigenous nations had equal sovereignty at contact
o Does not extinguish without consent, negotiation
English context: treaty
o Passage of time does not provide legitimacy
Macklem (Distributing Sovereignty)
o Best justification for indigenous sovereignty lies in distributive
justice argument
Eg. Comes down to social justice/poverty aliviation
o Claims are weak if made on claims of prior occupancy, and
cultural relativism or distinctiveness
This is vulnerable to the state coming in and taking it
away
o Critiques
Indigenous people are not indigenous people because
they are poor
Alfred
o Indigenous critique of the concept
o Incompatible with indigenous notions of power
o Maintains colonial structure
o By indigenous peoples aiming for sovereignty, they are aiming
for a western understanding of power, and that is an example
of further assimilation
o Critique
Suggests that indigenous peoples can continue on
exclusive of what is going on in power structures in the
world/of what else is going on.
←← Indigenous Self-Determination
Thuen (Saami Peoplehood)
o Protects cultural distinctiveness
o Right to decide their own affairs (like a self-government
arrangement without that language)
o No territorial demarcation
o Crosses borders
o Control of resource management
Alfred would probably like this model because it is moving away
from the eurocentric nation-state model
←← Aboriginal Self-Governance
Definition
o A degree of exclusion from the main polity (state govt)
Most, if not all, indigenous people have a desire to exercise some
measure of political, economic and cultural decision making for
themselves, separate from the surrounding state (Wilkins)
o When Wilkins is writing Self-Governance includes groups
which are ok operating within the state model, those who are
totally independent of it, and those who are on the border.
Alfred/Coulthard critique
o problem is that it is delegated from the state rather than an inherent
right
←← Self-Determination
United Nations meaning
Appears in
o UN Charter
o Universal declaration of Human Rights
o International Convention on Civil and Political Rights (ICCPR)
Other human rights instruments
"All peoples have the right of self-determination"
o Inherent, not a delegated, right
← Self-determination & UN Decolonization
Associated with decolonization regime (from 1950s)
Inherent right of all peoples
o Formerly colonized peoples can choose their relationship to
other political communities or states (Wilmer)
Usually interpreted as a discrete moment when an
aboriginal peoples decides what to do
Salt water thesis exclusion
o Only colonies that were separate from the mother county by
salt water all eligible for decolonization
Usually meant independence, sometimes joining another state
←← UN Declaration on the Rights of Indigenous Peoples
IP wanted to have the salt water exclusion removed
Recognized indigenous peoples as having right of self-determination
Protection for existing state sovereignty
o Decoupled sovereignty from self-determination
Changed UN’s meaning of self-determination
o Shifted away from sole state centric construction
←← Indigenous Self-Determination
Indigenous peoples have the right to freely determine their own
affairs as well as the degree of integration within a state (Lightfoot
2009)
Can be secured through a standards that exist either within states,
and/or outside the bounds of Westphalian states
o Negotiations must be done on an individual basis with states
More pluralism, multi-faceted view of self-determination
Increasing use of term among indigenous peoples
Diff way of interpreting sovereignty
o Less problematic in federations, where this distinction already
exists, less of a problem
o In states without a concept of divided sovereignty, this
becomes much more problematic
o BIG international challenge as is a different way of
approaching international relations for the past several
hundred years
Challenge to recognize equality
← Diff communities in diff parts of the world have diff perspectives on
what the ideal final outcome would be
Concept of sovereignty very much European, royalty based concept
Difference between the concepts of Nation and of the State
Maya Tailfeathers – Guest Lecture 9/8/11 9:39 AM
← From the Blood Reserve in s. Alberta, part of the Blackfoot confederacy
Largest land reserve in Canada
← Saami from N. Norway
← Chief and Band Council
Signed a deal with 2 oil companies without consulting/informing any
of the 10,000 Blood members, got a 50 million dollar signing bonus
Tribal members have no say in what happens to that 50 million
dollar signing bonus
o 10 days before Christmas an 800 dollar cheque was given out,
and what poor person would turn down 800 before Christmas?
50% of land for the next 5 years
200 wells will be built using fracking techniques
o chemicals used by these companies are patented, so they
don’t have to release information about what it is in them
o Ruins ground water
← Band members decided that they needed to do something, and left in
a legal no mans land
Companies – signed a deal with your representatives, so this is an
internal issue
Difficult situation, as there is very little recourse as to what the
options are
← Very high unemployment in the community, so thought that Band
would have signed deal with the goal of economic improvement for Band
members
Not the case
o Of the 30-40 people working on the site, none were band
members
Protestors preventing access to the site
o Arrested and put in tribal jail cell for 10 hours
o 2 court dates, 1 one yesterday
o Extensive international support
← Goal
Have criminal charges dropped
o Charged with intimidation
Big trucks and male oil and gas employees
Injunction against oil companies until the process is done in a
consultative, inclusive matter
←← Challenges
Apathy – people are in survival mode, and don’t have the energy to
fight this, have been beaten down for a long time
Fight the oil companies – not served best by the chief and council?
o Very recent right (June 2011) where Chief and council can be
held accountable for their actions and brought before courts,
but not a universal mechanism or option for recall
Financial mismanagement a serious issue on reserves with councils.
Treaty in 4 Anglo Countries 9/8/11 9:39 AM
← 10 min class presentation on Thursday
←← Why have there been treaties, and primarily in English speaking
counties?
Has been used to exercise some sort of nationhood, exchange,
sovereignty, some sort of consent between colonizers and
indigenous peoples
To what extent has it been used as a tool for colonization
← British Law Precedent
Royal Proclamation 1763 – North American
o Where we haven’t bought it, they can use it and be left alone
o Sense of British sovereignty, and that Aboriginal use
1873 Report of the Parliamentary Select Committee on Aboriginal
Tribes – New Zealand
o No private person can buy from indigenous peoples, but can
only be bought by the Crown
outlined how indigenous peoples should be treated
what has precedent meant for British law moving forward?
o It is the only way that settlers can legitimately occupy land
while at the same time recognizing the historic and ongoing
presence of indigenous peoples is via treaty
Cross-cultural law and/or colonialism?
o British common law understanding seems to cover both
Several ways to interpret treaty – not necessarily one or
the other
←← What does it mean to make a treaty?
Nation to nation negotiated treatment, and we shouldn’t think of
indigenous treaties as any different, but under colonial settings,
often used to coerce or negotiate the entrance of settlers into a
territory
Long history among indigenous peoples, different understanding of
how they are binding, sacred, lasting agreements
What happens with sovereignty?
o Whose sovereignty, what is exchanged, what kinds of
sovereignty exchanged
o British – sovereignty absolutely ceded and exchanged, does
not match up with many indigenous perspectives
Case
o Was sovereignty negotiated? What kind? How much?
← Typologies of Treaty
1. Treaty of Conquest
o military action with a clear winner/loser
o peace treaty to negotiate end of violence
o complete capitulation or surrender
2. Treaty of Cession or Sale
o land exchanged for money, ongoing rent, annuity
3. Treaty of Co-existence
o 2 distinct peoples or nations determine how they’re going to
live side by side
eg. 49th parallel between British Canada and USA
4. Treaty of Sharing
o 2 nations or peoples come together and agree how they are
going to live together, perhaps in a single nation state
structures etc.
Remember, not discrete categories, but a fair amount of overlap
←← How have treaty rights been shaped?
What is the history of treaties used in settling/colonizing this
country?
o How would you describe the relationship? Typology or original
relationship, and what has come out of that now
Hostiles relationship, no use of treaties – Banks gave 2
reasons, settlers felt they were the aggressors and
proved conflict
o Examples?
Contemporary status of treaty?
o Still in play? Current issues re treaty? What are they? Current
event example?
o
How are some of these treaty issues being addressed?
← History section
← Contemporary most recent
Pastoral lease
Mabo v. 2
commission
Group Presentations 9/8/11 9:39 AM
← New Zealand
1800s – First Contact
o late
o wanted to avoid many of the conflicts in North America
o New Zealand company and the British Crown did not agree, as
they both felt they had rights of pre-emption (very important)
Treaty of Waitangi
o Cnflictin interpretations: English vs Maori translation
British felt they had soveriegnty
Maori felt that this meant they were granted protection,
some benefits, but complete rights to self-determination
Company Territory
o High Price of Land + Settlers with Little Funds = Squatters
Major political voice
o Wakefield System
Land lottery – designed to be a fair system
Land distributed to individuals by lottery, Maori
guaranteed 10%
Land given was bad land, no one was happy
1852 NZ Constitution Act
o No actual constitutions
o Just sets up that NZ exists
o Maori lands guranteed, but never provided
1858 Fort Acre System
o Many new settlers found that there 40 acres were not
useable, and wanted Maori land
1845-1872
o Maori Wars
Maori rebelled, and the Crown lost
Land was taken anyways
NZ Settlements act said they were in rebellion against
the state, so the state could take their land
1865 Native Land Act
o Squatters on Maori land want legal title to “their property’
o Maori ended up losing lots of land this way
1863
o Australia Waste Land Act
Provided pastoral leases to farmers
Outside of the Wakefield system
No one happy with how everything worked out, haphazard system,
treaties undermined and language manipulated
← Current Issues
o Historical problems = current conflict
o Growing Maori population, no longer enough land
o Land claims process very cumbersome
o Gov’t historically used language to work around treaty
provisions
Addressed Now
o Govt recognizes that action needs to be taken
o Waitangi Tribunal
Appointed by government and must be reappointed
Originally dealt with environmental issues
1985 got retroactive authority to make
recommendations to prior treaty agreements, shift to
land issues, during claims process government was
selling land to private owners
o Govt considers Maori one nation, not historically that case
Treaty nature
o Based on British law
o Coercive and manipulative (different terms in different
language)
o Continued erosion of Maori lands
←← Canada
Perceived to be the most peaceful of the colonization process
Trends etc.
o First contact – perceived to be one of mutual dependence and
mutual benefits
o As settler pop’s increased in Lower Canada, shift in powers,
increased marginalization of aboriginal people
o Treaties 1-7
Competition between Canada and US, as to claims to
territory
Clear the way for Canadian settlements
o Treaties 8-11
More about resource access than competition with US
o 1) increased government dependency
no compensation provided, became dependent on the
government law for their existence
government service promises not fulfilled
o 2) process of marginalization
no longer equal, bilateral negotiations
1-11 still exist because constitution act acknowledged all pre-
existing treaties
BC the most complex treaty process
Type of agreements
o 1. Framework
o 2. Agreement in principal
o 3. Final agreements
Process slowed down because of definition conflicts etc.
o Government tries to conclude agreements within 3 years
o Native peoples disagree because there is not defensible to
reason to conclude negotiations
o Very one-sided power agreement
Current treaties
o More about land issues that other issues right now
o Govt sees them as keeping an ongoing relationship with
indigenous peoples
o Treaties are legal, but probably not fair
←← USA
Shift from cooperation to conquest
o Indian wars – treaties of peace
o Cession treaties – access to resources etc, land
Unique
o Tribal nations given sense of sovereignty not seen elsewhere,
immune from state legislation, given own judiciary, police,
education
Still subordinate to federal government
Still built around the idea that goal was assimilation
o Feds reserve the right to dissolve the treaty, terminate the
existence of the nation and the tribe if the government
decides that they are “assimilated enough”
Treaties follow and east to west pattern
o 1871 – decision to have no more new treaties
US govt and Native groups have very different perspective on the
treaties
o Govt: supposed to be one step in the assimilation process,
and now that they are old, considered out of date, and have
few qualms about circumventing
o Tries: govern all aspects about relations with government,
and so are very concrete, current and relevant
Black Hills Claims
o S. Dakota & Wyoming
1979 US courts ruled that act seizing land violated 5th
amendment and rewarded lost of money
didn’t accept because they thought that meant that
they would be selling there lad
1982 – new case filed, saying they wanted the land
back, because the government has admitted that they
took it illegally
Fundamental difference in how to resolve these
situations
o Lawyers were granted 10% of money, but Tribal council said
no, because they don’t represent our interests
Enforcement of agreements
o No neutral third party enforcer
All colonial institutions, thus biased to their perspectives
Unequal power relationship
o Agreements are only effective if they are enforced
Treaty process will be one-sided and messy
Not all tribes are covered by treaty process, so some groups are
then classified as non-existent and assimilated into culture, so have
no rights, even if they exist in fact, but not in historical
documentation
Supreme Court
o Where treaty disputes are resolved, handled, thus one sided
o 1830s – Domestic Dependent Nations (Marshall Court)
Recognized some measure of internal sovereignty –
term used
Domesticated every single tribe under federal
sovereignty umbrella
Unique in USA recognition of sovereignty
Unresolved issue of HOW MUCH sovereignty tribal nations have
← Pastoral Leasing Talking Points
Pastoral leases
o Large tracts of lands owned by the crown and leased for
extended periods of time to ranchers to be used mainly for
grazing, in exchange for rent
o Preserved the Crown’s prescence in remote frontier areas
Kept land from passing into control of individuals who
could set up as “shepard kings” in their own fiefdoms
After 1850
o All pastoral leases had to include a reservation that would
provide Aboriginals with basic right to entre at all times to
seek subsistence
As long as the areas weren’t enclosed and improved
upon
Hope to keep frontier violence to a minimum
1996 High Court Wik decision
o concluded that native title had never been extinguished on
pastoral lease land
o example of how 19th century Colonial Office policy may be
affecting 21st century land claims disputes
o native title continues to co-exist alongside lease rights on
pastoral leases
Future implications
o Uncertain of the legal concequences and practical
implications of the Wik decision
o 40% of Australia is covered by pastoral leases
o Important and pertinent issue as all the pastoral leases in the
state of Western Australia expire in 2015
Mistahi Muskwa – Treaty 6 Canadian Plains 9/8/11 9:39 AM
← Understanding Nehiyaw Political Organization
Difficulty in comparing European and Indigenous political bodies
worked
o Indigenous groups don’t have the same idea of sovereign
entity who speaks for everyone
Group continues to live a nomadic hunting lifestyle, relatively
independent of the Canadian state
← Research Question
What can we learn about the governance of contemporary Band
Council by looking at how Plains Cree peopl practive governance
directly before movement on to reservces
o Focused on Band led by Mistahi Muskwa (Big Bear)
← Power
Ability of people to affect the decisions and actions of others,
relational terms, shouldn’t be always associated with the negative
← Authority
The designation to make decision on behalf of an organization or
group – categorical, you either have it or your don’t
Legitmiacy
Discussion on Briefing Packet 9/8/11 9:39 AM
← 8 pages of text, add in necessary visuals that are relevant
← How to ensure that your packets work together
Paper must be turned in 3 ways: hard copy to class, emailed copy
as a PDF, TurnItIn
Governments can touch on a number of issues, but ensure that you
are approaching it from the government points of view. Write the
entire report (including history) as a representative of that
government
← Less of a template, more do what makes sense
Intro
History of colonization
3 issues – explain why this issues are important, can argue that
certain issues are important overtop of other actual legitimate
issues – why poverty trumps other concerns of human rights etc.
Recommendations
Conclusion
←← Sweden
Executive Summary
Table of content
History of the ......
o Who are the .....
o Colonial period
Modern issues.....
o On going battle
o Current issues and solutions
o Future
Works Cited
← Bangladesh: Responding to criticism, history of why these are issues,
what’s happened, and what the government intends to go
Overview
Introduction
Land Rights
Human Rights
Government Response to International Criticism
Summary
← Canada
Executive Status
Current Status
Historical context
Current Issues
Recommendations
← Japan
Introduction
Hisotrical Context – a few paragraphs
Indigenous Issues – bult of report
Government Position on how to resolve issues
And or government defence on current policies
Indigenous Resistance to Colonialism 9/8/11 9:39 AM
← Violent
Zapatistas
← Non-Violent
Global Indigenous Movement
Politics of Shame
←← Zapatistas
Mexican Government policy of land redistribution ended with NAFTA
First post-modern revolution:
o Hot conflict, but not for very long, because there was only
fighting for one day, not to overthrow the government, but to
be heard
Used websites - which was VERY new technology at the
time
Used global communications and technology to drawn
international attention
Encuentro
Gathering between idealists, indigenous rights
activists, left-wing activists, lost of non-indigenous
peoples went down there
Important, because it was an issue about
particular land rights in Chiapas, but went
much larger than that to get focus on the
area
Became about politics beyond guns
How did they show solidarity
o Language issues
Tactical Media – fairly new at the time
o Protection: international eyes
Lesson learned to be very careful, because violence
often escalates once the cameras leave
o Global message/Marie-Claire effect
Imagery
o Sound Bites
o Information politics/framing
Not reliant on government to get message across, able
to set the message and the facts
o Strategy
Choice of what information gets put out, and the only
message that gets put out is what the media is provided
with
o Symbolic politics
Linking their movement to history of Mexico, framed as
natural continuation of Mexican society
o Presumption that the state will have the upper hand in media
etc, so less about balanced coverage by individual sources,
but a balance media picture across the entire spectrum
Has been a hot war at times, and a war of ideas
o Usually goes hot when the feeling that there needs to be
more attention
Layered complexities of the insurgency
←← Non-Violent Politics of Resistance
Transnational Advocacy Networks (Keck and Sikkink 1998)
o Networks of non-state actors working internationally on an
issue, who are bound together by shared values, a common
discourse, and dense exchanges of information and services
Key: networks and non-state actors (NGOs, indigenous
nations, churches)
Common discourse –what is it, how did it develop when
such a large, varied, scattered group
Dense exchanges of information and services have
exploded recently through increased global
communication
o Multiply channels of access to international systems
More routes to access states, not just domestically, but
from other, including international directions
Multiplies power
o Goal: change the behaviour of states and international
organizations
o Boomerang Pattern
Transnational Advocacy Networks (TANs)
o Frame issues
How to frame a local issues so that it resonates with
other actors on a global scale?
o New ideas, norms and discourses
How do you connect something new to something
already agreed upon by the international community?
o Information and testimony
What sort of information, testimony do you disseminate
o Norm implementation
How do you start an international movement to put
pressure on a nation that doesn’t really want to change
its position
o Major actors include: NGOs, foundations, media, churches,
trade unions, consumer organizations, intellectuals etc.
Who supports this campaign, where does the money
come from?
What types of media?
o Ability to do all these things will determine how successful the
movement is able to be.
Indigenous Resistance as a TAN (Politics of Shame)
o International Level
Collective vs. individual rights
Brand new, had been attempted during cold war
unsuccessfully
Meaning of self-determination (independent nation-
states)
Shift away from nation-states as the central
understanding of the international system
Decolonization exclusion
o Domestic Level
Legal systems of states either inadequate or
inappropriate for redress
Use of human rights law and principles from the
international level to get domestic implementation
Where to boomerang model comes into play
Existing Human Rights Framework
o Universal Declaration of Human Rights (1948)
o Declaration on the Elimination of All Forms of Racial
Discrimination (1963) – Convention (1965)
o -------------------------------------------------------------------
o International Convention on Economic, Social and Cultural
Rights (1966)
o International Convention of Civil and Political Rights (1966)
o Youtube video: teaming up with another movement
(environmental movement) and going to the UN to make their
case
Organizational Beginings
UN Declaration on the Rights of Indigenous Peoples9/8/11 9:39 AM
← UN Working Group on Indigenous Populations
Drafted the UNDRIP
Established in 1982, Geneva to draft UNDRIP
Countries and indigenous organizations met
Open participation by indigenous peoples
o Participation by indigenous peoples was open, if you could get
there, you could participate
o Dynamics have changed now that in New York, visas, 9/11
etc.
Purposes
o 1. Information gathering
o 2. International standard setting
Draft Declaration on the Rights of Indigenous People
(1994)
Similar but no identical to the final draft
← Remember that the document is 100% compromise
← 1994-1997 the draft declaration negotiated
Doesn’t pass the UN General Assembly until 13 September 2007
← DRIP
Bare minimum international standard of indigenous peoples’ rights
o Some states view as a goal to reach for
o By drafters, looked at as the floor
Morally binding, but not legally binding
o Not hard law (treaties, conventions) with a compliance
mechanism, and the security council can act on it
o Soft Law – not legally binding in an international legal sense,
but are morally and politically on the whole world whether
signed on or not.
Global consensus on indigenous rights
o Then should guide how states and indigenous peoples should
relate to each other
Individual and collective rights
Land rights, self-determination rights
o Important because there are certain states that are
threatened by the implications of this component
o What does self-determination mean? Now different from just
territorial sovereignty
Document of compromise – each article and as a whole
o Negotiated from 1982 until the last weekend in 2007
← Changes made:
Enhance state sovereignty, concerns about what does fair
compensation/redress mean. USA, Can etc. couldn’t politically come
forward and speak against a HR document, so asked Africa to do so
on their behalf, as Africa was also not in favour, but could also
support the concerns.
←← Les Melezer, Chairperson of the Global Indigenous Caucus
The declaration on the rights of indigenous peoples constrains no
new provisions of human rights. It affirms many rights already
contained in international human rights treaties, but rights that
have been denied to the Indigenous Peoples
Prof: agree mostly except for the introduction of group rights
←← What UNDRIP does do
Emphasizes the right to maintain and strengthen cultures, traditions
and institutions
Prohibits discrimination
Asserts collective rights of Indigenous peoples to remain distinct
form their surrounding societies, pursue own visions of
development, promote full and effective participation in decision-
making processes on issues that may affect them
← Voting Record
143 votes in favor
11 abstentions:
o Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia,
Kenya, Nigeria, Russia, Samoa, Ukraine
36 absent:
o Chad, ivory cost, equatorial guinea, Eritrea, Ethiopia, Fiji,
Gambia, Grenada, Guinea-Bissau, Israel
4 againts
o Canada, United States of America, New Zealand, Australia
o Aka CANZA’s group
Prior to Stephen Harper, Canada was supportive of and a leader in
negotiations of the declaration
←← Canada’s Objection
Lack of inclusiveness and transparency in process
o Open to all since 1982
Does not reflect current state practice or current obligations under
international law
o Yeah, that’s the point
Not legally binding
o Esp. because they didn’t vote for it
Commitment to indigenous rights through existing international
mechanisms and its domestic constitutional guarantees
o Looks at all other human rights documents they take part of
No objection to collective rights
Land rights would be incompatible with parliamentary system
Will continue to rely on domestic legal instruments
o Because didn’t vote for it, self-exempting
First time Canada ever failed to support an international human
rights document
← USA’s Position
Lack of transparency
Text is confusing, fundamentally flawed
Objects to self-determination, land and resources rights, redress
Opposed to collective rights
Rely on domestic law
← New Zealand
Does not reflect current state practice
Fully supports principles and aspirations – aspirations key word
again
Text is discriminatory and incompatible with democracy
Land rights
o Unworkable as could encapsulate entire country
Inequality
Redress unworkable
Not legally binding
← Australia
Sef-determination (impairs territorial and political integrity)
Land rights
Inequality
o Sets up indigenous Australians with different rights than
everybody else
Notion law applies
Places indigenous customary law in superior position to national law
Not legally binding
←← Australia Changes Position
April 2009
Incoming Rudd government announced change of position to
“support”
But...
o Document is aspirational
o Non-binding
Does not affect existing Australian law
←← New Zealand Changes Position
April 2010 – after a shift in government
Opening ceremony UNPFII
Minister of Maori Affairs, Dr. Pita Sharples (Maori Party in coalition
with National Party)
o youtube
But...
o Declaration is aspirational
o Not legally binding
←← Canada Changes Position
March 2010: speech from the thone, move towards endorcement
(thinking about thinking about), but would be in a framework totally
consistent with Canada’s laws
Novermber 2010: Canada will be formally endorcing the declaration
in a manner fully consistent with Canada’s Constitution and laws
o Not legally lbinding
o Aspirational
No public ceremony
No change in goverment (unlike in Australia and NZ)
←← USA Changes Position
April 2010: Following NZ announcement , USA announces a
reconsideration, tribal consultation process
December 2010: Obama announces US is “lending support” in
remarks to the White House Tribal Nations Conference
o Youtube
Follow-up statement released by the White House later that day (16
page document) explaining why document is aspirational, non-
binding and wouldn’t change US domestic law in any way
←← Lightfoot (2012) International Journal of Human Rights
Selective Endorsement
o 1. Removes concerns over process legitimacy
transparency concern
o 2. Underscore normative importance of the rights while also
qualifying their status
o 3. Strategically, collectively and unilaterally attempted to
write down the norms so that they align with current policies
and practices
Thus, the states assert compliance with the rights norms without
having to change domestic laws and practices
← 1981 Geneva Conference – more global
1. Idea of secession taken off the table ,pragmatic choice
2. Using international system
← 1977 Geneva
1. Western/ Global – IITC, WITC
2. Term indigenous comes form this , idea of self-determination
o declaration of principles
9/8/11 9:39 AM
← International Law most applicatble to internationl struggle
- UN Charter – friendly development of relations between nations
and peoples
Peoples – s selfdetermination, vs. population or issues at DRIP
←← Beginging of DRIP
1. Standing rock south dakota – IITC
2.WCIP – 1975, shared history of global issues
←←← Transnational Advocacy Network
Collective and individual rights and self determination, shift in
understanding of what self-determination, collective rights
Domestic, many state legal systesm are inadequate
o Need hums rights to have state implementation
←← 1)Constructive Engagement
1. Content – emphasis on equity, inclusiveness, here for the long all,
every one has legit claims
2. Negotiation
← Indigenouspeople sovereign by vitrue of being there first, and never
gave it up, repairing relations, people with rights, not minorities with
problems
-taking indigeneity seriously
power sharing, rethinking citizenship
new rules of agreement and reconiliation
dialgoue
←← Obvious Biases in constructive engagement – validity of existing state,
irights with crown not other way, politicization
States: biases – need based vs rights based, jr not equal partner,
conformity, universal citizenship, ethnic of miinoiryt v IP
← Realities – politics gets in teh way, states really enjoys it power to
establish agendda, fear of national unity threat to, constitutuional change,
globalization and profit engagement.
←←← Treaty – restitution based treaty (comprehensive land claim, treaty)
Goverment offers compensation and control in exchange for full and
final settlement, no more opportunities for renegotiation at a future
date.
← Interpersonal, social, government and intrinsic proposittions of
recognition (NEED ALLL)
Interpersonal: encounters free of racism, understanding, empathy,
inclusiveness
Social: inclusive social policies
Governments rediristribution of powers b/t elecetd and non-elected
Intrsinsitc; recongiton of sovg and self-d rights
←← Reconsiliaton from IP
Rgth wrongs
New partnerships
Full = participation in
Work throught differences
Respect indineity
←← Difffernt perceptions of colonialism
Anger bsesd on past dispossession
Guilt on settler behalf
Proud of colonizatoin, no point on dwelling in the past
←← Reconciliation – politics of
1. Attonment – righting of historical wrongs
2. Renewal
sorry, practical, land rights, restoring as institutional partners
←←← Comprehensive Land Claims
Exchange of rights, resources of and obligations
Extinguish aboriginal title in exchange for various land rights,
comanagments, payouts, self management
1. Problems:
o politics of partnership )0 sum game
o adviersarial w/ state
o rivaly in comeptition for resources
o contractural reliance – litigation as problem solver
o reliance on past and rhetoric
o aspirations within Eurocentrcic framework
o issues as an end vs. a struggle
2. Negatives
o adminstrative quick fix
o conducive to partnership?
o Recipe for conflict btween competeing claims
3. Benefits
o identity building
o resource mobilization
← Waitangi
Not any formal implication now
Treaty esttlement focues, compensation of
Different languages
DRIP – resasons for refusal
←← Constiutional Approach v. Indigenous Approach
Engagment v entitlement
Relationship v. rights
Interdependence v. oppostion
Cooperation v. competition
Reconcilation v. resitution
Power sharing v. power confict
←← Ongoing issues
Crown resistant to foundational changes
Sever colonial bonds
Frames on colonial discourse with a more human face
o Viewed as a problem peeople
o Indigeneity no t taken srious
o Contsitutionl appraoch still persists
←← Shifts in Indigenous Affairs
1. Promote I driven capacity v. state programs, with not for, effort to
improve economic development
←← Approach to improve indigenous politcs
Increaesd indigenization of policies
Restiutionall settlement
Statutory amendments
Develiution fo power
Decentralized services
Lmited self government arrangements
←←← Why is indigenous lobbying when exported
Western Europe: few concerns have local residents, not threats to
own jobs/secutiry.
o Cree to Europe to international meeting, canoe to
amerstadamm, increasing awareness
o Evironmentalism as a facade
Jury raised attention to surpirse of inconsistency of
human right
←← International organization most important driver for change
← - add/remove credibility
← Politics shame
Creative way the UNHRF does politics, public denunciations,
attention of protest, can sometimes bring a reluctant government to
the table, sometimes an agreement can result
BAD: must meet public expectation to qualify for help (wise,
environmental etc), end up adopting core values of western state to
have an effect, must focus on issues where majority will agree to, as
the more central ones will have already. Compassion fatigue,
ordinary when compared to genocide
States of maximum level of recognition, soft rights, cultural
diversity, when you reach that point, no more
Contrastic deffinition fo self-determination (land, injustice, language
etc?)
Requires development of instutions that are moden,
←←← UN Working Group – Value
Meet annually
Connection between UN and IP
Broad topic
Self defined attendance, international attention
No states
← Host of annual forum in Geneva, new models of self determination,
bring about UN ratification to establish interantional standards for protection
to rights, became the permanent forum in either 2000 or 2002
←← States in favour of v. states opposed africa
←← Main features of indigenous global politcs
Grounded in indigenous cultural practives, traditon style and
decision making
Open indigenous participation, tool for justice, incraeses in scope
and clarity of over;
←← Positive DRIP
Big step forward
Collective rights are new
Take and a whole and more
Article right to, right of aspiration v inherent, night before, article
too
←
← Drip
Reights to maintian culture
No discrim
Collective rights
←← Georgraphy and Political Issolation
If technology -> more interction
← Global level – wider audience and support and new stratgies, don’t like
looking bad. Local leve – admin inconvenie, less support
←← Written Law to express self-determination
Reconsituting sovg in ways understanding
No experience of communal memory in western legal art, how to
make the state
←← Types of self-determination
Non discrim
Cultural iteg
Control over land
Social welfare
UN – political statu, control of resources, sustinance, cultural
development
←← Important Points of Agreement btwn states and ip
Qwill to establish forum
High in UN, EOSC
Reveals: UN largely controled by states
←← UNPFII
1. Centrepiece of decade of interpal people
o a. states would appoint reps, rejected
o b. more experience in intl politics, so they should trust their
formula
o reference to the charter of the UN – didn’t know if they
wanted to mention is, forced to, wasn’t binding
← Challenges state sovg
International - reforms in intl law
Pluralistic forces within the states, nations within natios
← Written law
New chances to use written law to their benefit
←←← Geogrge Manual – shuswap leader in BC, ground work in 1970s for
globlization, threat
←← Hall, Anthony. – Reconliliation in Aus & Zapatista movement
Reconciliaton is now a nation-class-wide thing
o Auss: terra nulia, white supremicits, Mabo & Wick,movemet to
reshape
o Zap: local located, globally orientaed, trans
← Niger – Agoni activitst, against evironmental desicration. Clearest
examples of abo group on cutting edge of protest v. globalizatoin. Silenved
by government, critique of shell, government tried to treat problem as
domestic much international attention
←
← IP v. Ngo. Ip dont’ have consultative status, only 20 w/ consultative
status, rep nations.
←← 5% of world’s population, 80% of world’s cultural diversity, 20% of land
surfface, 80% of world’s biodiversity, 70+ nation states.
←← Stavehagen deffinition of indigie
Chronology not as important
Type of unjust relationship
←← Peoples: group who have an objectively distinct indentity and
subjectively perceive themselves as differnt. Problme is matter of
perspective and degree.
←
← TANS:
Networkds of non state actors (NGOS, inna, curhc) workin intl on an
issue who are boudn together by shared value, common discourse,
dense exchanges of information
o Coming at teh state from multiplie directions, not just below,
mutltiple channels access, goals to chang state behvious
Actors: NGO, foudations, meida, churrch, unions, intellectuals,
consumer organizaton
Boomerang pattens
o Not working through domestic pattersn
Importance of framing.
o Frame local issues so that they resonate globally
o Connect the new with the norms
o What kind of information you let out – Zapatistas
Tactical media
o
←←
← Only live when in use, 46 articles, almost all individual rights, took 30
years to wrtie.
←← Negotiation of nation to nation relationship at inernational level, less
1. Conquest – beat teh other person, end of the war (peac)
2. Sale/Cession – money, rent
3. Coexistance – determine how to coexist – 49th parallel
4. Sharing – overlap
Talk about comprehensive landtreaties
←← Are treaties cross cultural negotiaton. Colonialism.
Process, treaty used to exercise nationhood, exchange, consent
←← British Law of precent – only way that settlers can occupy land
←← Chitagong Hilltracts – Bangladesh
Causes of conflict: autonomous state under autonomous rule, given
to pakistan, dams forced relocation, identiy crisis forced to
assimilate, imposed national identity, asiimilation policies, military
as conflict resolution, human rights violations, minority in own lnd
o Peace accord signed, but never implemented
1. Treated at national issues.
←
9/8/11 9:39 AM
←