The New Trail of Tears. Naomi Schaefer Riley
this means the treaty process never ends.”46
Meanwhile the legal question of “Aboriginal title” is working its way through the courts as well: do First Nations have any claim to land that is not part of their reserves? After Calder, cases in 1984 and 1997 and most recently in 2014 expanded and solidified Aboriginal title as a concept in Canadian law.
Indeed, in 2014, in Tsilhqot’in Nation v. British Columbia, the Supreme Court granted title to First Nations on land that was off of their reserves. The Tsilhqot’in claimed that the government of British Columbia didn’t have the right to grant a commercial logging license on land that First Nations had occupied continuously for hundreds of years. And the court agreed.
Written by Chief Justice Beverley McLachlin, the unanimous ruling says that Aboriginal title “flows from occupation in the sense of regular and exclusive use of land. . . . Occupation sufficient to ground aboriginal title is not confined to specific sites of settlement, but extends to tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources and over which the group exercised effective control at the time of assertion of European sovereignty.”47
When I visited Kamloops several weeks after this decision was handed down, leaders of First Nations, including Manny Jules, were working furiously to come up with their response to this decision. How would it affect their willingness to participate in the treaty process? Would it change people’s support for the First Nations Property Ownership Act? If millions of acres of land were now in play, should First Nations really focus their efforts on gaining clearer title only to land on the reserves?
There was a great deal of disagreement among the leaders I spoke with about exactly what this decision would mean. In principle, it could mean that First Nations could claim the entire city of Kamloops, one of the top 50 metropolitan areas in the country. Would they be compensated by the tens of thousands of residents and businesses occupying land that First Nations once used for hunting? And which bands could rightly claim title? Some bands have claimed overlapping lands. Hunting lands in particular were hard to demarcate.
Although some Canadian Indians are hopeful that a claim to Aboriginal title will expand their claims on the land, others are concerned that this will only inject more uncertainty into the land question, which is the last thing that those interested in economic growth want to see. Though these disputes over land ownership and political autonomy have been around for more than a century, leaders of First Nations have good reason to want to see a resolution to these matters sooner rather than later. They know from numerous investors that the only way more money will flow to First Nations is if there’s some certainty about who owns and who’s responsible for the land on and off the reserves.
In their introduction to the book Beyond the Indian Act, Tom Flanagan, Christopher Alcantara, and André Le Dressay lay out the problems succinctly: “Aboriginal people are the least prosperous demographic group in Canada. In life expectancy, income, unemployment, welfare dependency, educational attainment, and quality of housing, the pattern is the same: aboriginal people trail other Canadians. And within the category of aboriginal people, another pattern also stands out: First Nations (status Indians) do worse than Métis and non-status Indians; while among First Nations, those living on-reserve do worse than those living off-reserve.” The future seems pretty bleak too. As the authors note, “These patterns have been more or less stable for decades. Aboriginal people and First Nations are progressing on most indicators compared to other Canadians, but the progress is painfully slow, and it will take centuries to achieve parity at these rates of change.”48
It’s worth noting the similarity of this situation with that of tribes in the United States. Observers often say that Indians are more visible in Canada because other racial minorities make up a smaller proportion of Canada’s population than America’s. In other words, the problems of blacks and Hispanics overshadow the problems of Indians in the United States.
But the land problems and the resulting government policies are at the heart of why both American and Canadian Indians are experiencing so many economic and social problems.
The reserve lands in Canada don’t have the “patchworking” problem that resulted from the policy of allotment in the United States. In Canada, bands themselves (as opposed to individual Indians) collectively hold much more of the reserve lands than is the case in America. But Canadian Indians still have the same underlying problem. First Nations technically have title to the land, but it can only be “alienated” – that is, it can only be sold – through the federal government, and, as Brock told me, “the Crown has a fiduciary duty to make sure the land fetches a fair price.”
But now the question is how to move forward. The first priority, Jules says, is to change or repeal the Indian Act. The Indian Act “freezes things in place,” notes Jules. It was “written when we were a dying people.” But if there’s to be change in policy at the federal level, First Nations need to be prepared to take over certain aspects of their own governance. If First Nations are eventually to be treated as another province – one possible outcome here – what tasks are they willing and able to take on?
The leaders of tribes in British Columbia commissioned a report looking at 200 different areas of governance. “We don’t want our own postal service or our own standing army,” says Jules. But they do want more responsibility for taxation and local services, including utilities and education.
One advantage that First Nations have over their American brethren is that they’re a significant political force. According to Canada’s 2006 census, Aboriginal Peoples compose about 3.6 percent of the Canadian population. Compare this proportion with only 1.7 percent in the United States.49 Because of their geographic distribution, Canadian Indians have significantly more political power as well. Indian politicians not only have been elected to Parliament but also hold the majority of elected seats in two provincial legislatures. American Indians, by contrast, have amassed no such power. And although they may be influential in, say, the election of a legislator from South Dakota, they’re not going to be able to sway many votes in Washington.
Also, the population of First Nations is growing rapidly. According to official estimates, between 1971 and 2011, it grew by 487 percent, while the total Canadian population grew by 52 percent. Although some of that growth is attributable to a greater number of people claiming Aboriginal ancestry, it’s true that the birth rate among Aboriginal Peoples is higher than among the rest of the population. According to the Canadian government, “Amongst the Aboriginal population, 46% of individuals are under age 25, compared to 29% for the rest of the Canadian population.”50
These numbers have started to make political leaders pay attention. In a book called Time Bomb, Doug Bland, former chair of Defence Management Studies at Queen’s University, argues that the conditions are ripe for an uprising by First Nations, whose economic and political aspirations have been stifled for so long. Bland foresees the potential shutdown of major means of transportation by protests and civil unrest. He told the Ottawa Citizen that he was “not predicting a revolution or an armed uprising.” But because the population of First Nations is disproportionately young and “concentrated in areas critically important to Canada’s resource industries and transportation infrastructure,” he said he sees the potential for a real standoff of some sort. He warns that a “confrontation” could occur if Canadian and First Nation leaders can’t solve some of their conflicts.51
But the difficulties in resolving these conflicts stem from more than intransigence on the part of the Canadian government. Because Canadian bands operate independently – some have fewer than 100 members – it can be very hard to get any kind of broad agreement among First Nations when lobbying for a particular policy.
Indeed, because some bands may not want these property rights, one selling point of the First Nations Property Ownership Act (Jules and his allies emphasize this repeatedly) is that any band can choose not to “opt in” to the legislation. Every band should at least have the opportunity to introduce property rights, however.
For all the concern about an imminent revolution on the part of First Nations and the groundbreaking high court decisions that have