The New Trail of Tears

by Naomi Schaefer Riley

  Despite the vast amount of federal money that does usually flow to these communities, there’s little accountability. Though there were some reforms in the 1970s, many tribal governments are rife with corruption. And the lack of a private economy makes things worse. If all jobs are government jobs, then they become all the more important as prizes to be given to supporters or simply to extended family.

  Still, in every community I visited, a few people like Ivan Small understood that no amount of federal funds was going to stop the poverty and dysfunction. What they longed for wasn’t more money. They didn’t care for more apologies or hand-wringing from white folks in Washington. What they wanted was what Senator Dawes once promised their people – emancipation.

  The problem is the same in Canada, says Manny Jules, one of the leaders of the Kamloops band in the province of British Columbia: First Nations (as Canadian Aboriginals are called) don’t have real property rights. And property rights, he says, “are human rights.” Of course, the notion that Indians believe in property rights is contrary to everything that you hear about Aboriginal Peoples, he notes.

  A small, gray-haired man with a warm smile, Jules went to art school when he was younger, hoping to become a sculptor. But he put that pursuit aside to assume a leadership role, first as a councilor of the Kamloops band, then as its chief and one of the cofounders of the Shuswap tribal council, of which the Kamloops band is a part.

  The city of Kamloops (2011 population: 85,678) enjoys a gorgeous setting. In the same hotel I stay at are hikers, mountain bikers, and nature lovers. In the heart of Kamloops is the confluence of the North and South Thompson Rivers – the former flowing from the Thompson Glacier at the foot of the Caribou Mountains, the latter coming from Little Shuswap Lake (which, at 7 miles long and 5 miles wide, is not so little). In the summer, Canadian and international travelers eager to experience the region’s natural beauty come in busloads. The days are hot and dry, but in the evenings, when the temperature cools down, families gather at the well-kept public beaches and parks along the rivers.

  There are a few expensive restaurants in Kamloops whose menus emphasize “local ingredients,” but mostly the city has the feel of a middle-class oasis where people have found the right balance of work and play. Railway lines meet here, so the region is a hub of economic activity. There are coal mines and copper mines. Natural resources are plentiful.

  But if you want to see how the land question affects members of First Nations, drive at night to the top of one of the peaks overlooking the city. On one side of the river, there are lights everywhere – apartment buildings, homes, businesses, and hotels. On the other side – the land held by Jules’s band – there’s mostly darkness. It’s not quite as stark as the difference between North and South Korea in satellite images, but it comes remarkably close.

  The first thing you notice when you drive to the other side of the river is the waterfront. Right on the edge of the rivers is a trailer park with hundreds of homes so close together they might as well be on top of one another. A little ways back from that are some lumberyards and car dealerships interspersed with small homes, many of which are badly in need of repair.

  Much of this part of town has a feel of impermanence to it. And that’s no accident, explains André Le Dressay of Fiscal Realities Economists, a group that conducts economic research and analysis, develops innovative solutions, and advises and advocates for public, First Nation, and private sector clients. In the Kamloops area, Le Dressay estimates that a First Nation member-owned home is worth about 1/20th what it’s worth off reserve. “These are classic economic results.”

  “You don’t see big permanent structure leases for less than 15 years,” Le Dressay tells me as we drive around the Indian side of the water. On the side that’s not a reserve, homes sell for more than half a million dollars, but here the most profit to be made off the land is from a trailer park. Since the band has no money, they’re unable to create the public parks and other facilities you see on the other side of Kamloops. They’re barely able to keep up with the projects they do oversee. The cemetery holds victims of the 1860 smallpox epidemic as well as veterans of the World Wars, Korea, and Vietnam, but it looks overgrown. The local Catholic church is undergoing a much-needed renovation, but the houses around it are falling apart.

  In another attempt to work around the land problem, some First Nations have arrangements whereby a bank will give band members a mortgage, but if the members default, the band itself is on the hook for the money. The results are predictable: the Kamloops band is paying more than $2 million a year in arrears. And it’s not only the mortgage payments that are the problem, it’s the upkeep. Le Dressay tells me that the “average lifespan of a tribal home is 15 years.” That is, homes are so poorly cared for that they need to be completely demolished and rebuilt after only 15 years.

  There’s one large gated community on the Indian side of the river. The tribe came to a complex agreement with a developer for a 99-year lease on the land. The community has its own restaurant and golf course, and plenty of non-Indians have purchased homes here.

  But for every successful development project, there are several others that have fallen through. Twenty years ago, a plan for a big hotel and residential development brought together seven or eight landowners, Le Dressay recalls. “But it took so long to get the regulatory approvals and the environmental approvals that the lenders got nervous. One of the front men eventually committed suicide because of all the pressure. It never took off.” Studies by Fiscal Realities have found that development on the Indian side of the river takes, on average, four to six times longer than development on land off the reserve.35

  Jules supports a parliamentary proposal, the First Nations Property Ownership Act, which would address this problem by allowing First Nations to have title to their own lands instead of having the Canadian federal government hold those lands in trust. But “one of the biggest challenges we face in convincing people about [the First Nations Property Ownership Act] is mythology,” says Le Dressay. “The popular understanding of indigenous culture is that it’s almost like there was a socialist utopia for millennia.” But such a utopia never existed. As Le Dressay notes, “In any other circumstances such a society would have been impossible – unless you consider North Korea a success story.” But people continue to impose this history on First Nations, as if they’re exceptions to human nature.

  A lot of the literature on First Nations’ history and traditions was written in the 1960s and 1970s – a time when environmentalism and socialism were surging in the West. More was contributed in the 1980s, a time of political correctness, when scholars pushed the notion that traditional cultures were far ahead of the dominant Western one because of their communalist impulses.

  After engaging in extensive research on his own communities and others in Canada, the United States, and Mexico, Jules has come to the conclusion that this is all bunk. “Property rights are part of indigenous culture,” he tells me in no uncertain terms. As he explains, “In my community, we have some of the oldest pit house sites.” Pit houses were permanent structures requiring considerable time and resources to build. “They were nice and toasty warm in the winter. In the summer we went out and gathered salmon, berries, wild vegetables, and hunted game. In the winter we came back to settled villages. There is no way we would have left and come back to allow some other family to live in our pit house.”

  And yet political leaders and educators continue to offer sentimental myths in place of this history. Michelle Obama recently told a gathering of Native American youth, “Long before the United States was even an idea, your ancestors were harvesting the crops that would feed the world for centuries to come” and “Today on issues like conservation and climate change, we are finally beginning to embrace the wisdom of your ancestors.”36

  Mrs. Obama hasn’t discovered some ancient Indian text that predicted the melting of the glaciers. And there’s little evidence that Indians had any fundamental
ly different understanding of the environment than any other people on Earth. Which is to say, when resources were scarce, Natives worked to conserve them. When resources weren’t scarce, they didn’t.

  Take, for instance, the oft-repeated notion that Indians would “use every part of the animal” – because of their concern for nature and their desire not to waste its treasures. History doesn’t back that up. In a 2002 article called “Buffaloed: The Myth and Reality of Bison in America,” historian Larry Schweikart notes that some Indian tribes cleared large amounts of forest with “controlled burns” for hunting purposes. They would divert game into small, unburned areas to make it easier to hunt the animals.37

  As if that weren’t bad enough from an “environmental” perspective, Schweikart says, the intentional fires “often got out of control, and without modern firefighting equipment, flashed through forests, destroying everything in their path. Deer, beaver and birds of all sorts were already on a trajectory to extinction in some areas, because over and above the hunting done by Indians, natural predators and disasters thinned herds.” Other hunting methods included the “buffalo jump,” in which a man would drive an entire herd over a cliff. As Schweikart notes, this “led to horrible waste and inefficient use of resources.” When buffalo were plentiful, they were hunted without regard to waste. When their numbers dwindled, things changed.38

  To the extent that Native Americans of old cared about conservation, it was when they owned things. Jules notes that the same is true of the Natives who lived in Canada, saying, “The teepees were owned by individual women.” He leans in to emphasize the point. “The concept that we never had private property has been foisted upon us.” It’s interesting that in revisionist academics’ attempts to suggest that First Nations are more advanced due to their communal attitudes, they’ve actually “reinforced the notion that we are not as advanced as somebody else, as Western culture.”

  Jules believes that the time for passively accepting the status quo is over. During three decades of involvement in tribal leadership, he has tried to significantly alter federal policy toward Indians, creating greater political and economic autonomy for First Nations. He has worked with other leaders to develop political clout, so that the Canadian government can’t ignore them.

  Self-sufficiency has become Jules’s mantra for the Kamloops band and for all the First Nations of Canada. He seems to have the right combination of experience and optimism to make changes happen in his community. Jules’s father, a logger and a cowboy who could, according to Jules, “ride from the time he could walk,” set up the first industrial park on a Canadian reserve. In 1963, 14 businesses opened there, but the logistical problems of doing business on the reserve immediately became obvious: Jules’s father had a tough time getting anyone to plow the roads in winter. The province claimed that snow removal was the federal government’s responsibility – because the reserve was federal land – but the federal government said it was the province’s responsibility because the province collected taxes on the land.39 This controversy led to a decades-long fight with the Canadian government – specifically over issues of taxation, but more broadly about political and economic autonomy for First Nations.

  In 1988, thanks to Jules’s leadership in calling for reform, Parliament passed “The Kamloops Amendment,” the first-ever First Nation–led change to the Indian Act. The Indian Act has regulated the 614 First Nation bands in Canada ever since it was passed in 1876. The Kamloops Amendment established the power of governments of First Nations to levy property taxes on reserves, including taxes on leasehold developments like the industrial park Jules’s father helped launch. It also allowed governments of First Nations to set land aside for leasing and economic development without that land losing its reserve status. This was the first step in gaining more fiscal and political autonomy for First Nations.

  The First Nations Property Ownership Act would create the legal framework for individual members of First Nations to access capital through secure property rights. This legislation would make First Nations like small provinces or cities. Just as land belongs to the city of Quebec even though residents of the city can buy and sell it among themselves, so people in the Kamloops band would be able to have individual title to their land (to do with as they wish); at the same time, the land would be taxed and its public facilities would be maintained by the band.

  The First Nations Property Ownership Act could be a political and economic game-changer for Aboriginal Peoples. But to understand why, it’s necessary to know more about the history of First Nations in Canada, as well as the ways in which the Canadian “reserve system” is different from the U.S. reservation system.

  The Canadian and American systems have common origins in the Royal Proclamation of 1763. As Kathy Brock wrote in her contribution to Canada and the United States: Differences That Count, “Embedded in the [British] proclamation is an ambivalence that gave rise to two very different histories of Aboriginal governance in Canada and the United States. On the one hand, the proclamation recognized that Indian nations were independent and should be dealt with through treaties by central authorities. The document established the basis of treaty and reservation land systems, and provided a basis for current land claims. On the other hand, the proclamation confirmed that Indian tribes possessed a limited sovereignty and were subject to British rule. Thus, they were not seen as equal to European nations, and limits were imposed on their actions when practically possible.”40

  Although Brock, a professor in the School of Policy Studies and Department of Political Studies at Queen’s University, argues that the U.S. government has largely allowed tribes to govern themselves – for better or for worse – as long as they stay within their reservation borders and live without any property rights – the Canadian policy has been characterized by micromanagement of tribal affairs. In addition to the forced assimilation carried out by the residential schooling programs (to be covered in chapter 4), which also existed in the United States, but to a much smaller extent, Brock says, “almost every conceivable facet of First Nation life and culture was subject to scrutiny and regulation by Indian Affairs officials.”41 Although Indian agents were largely absent from American reservations after the first decade of the 20th century, Indian agents (also known as superintendents) weren’t removed from Canadian reserves until 1975, and then it was because members of First Nations “occupied” these offices and kicked them out.

  Remarkably, the Canadian government even determines who is and who isn’t a member of a First Nation. If your bloodline is too diluted due to intermarriage, Ottawa will not regard you as Indian. (In America, as long as a person is claimed by an officially recognized tribe, he or she is treated as American Indian.)

  Ironically, the fact that so much power rests with the federal government means that significant policy changes have been much more forthcoming in Canada than in the United States. These shifts began in the 1960s, Brock explains to me, “as part of dialogue around the world about the importance of self-government.” In 1973, the Canadian Supreme Court recognized Aboriginal title to the land in Calder v. British Columbia.

  The landmark Calder case clarified matters only so much, though. Three of the justices claimed that Indian title to the land existed at one point but had been extinguished by virtue of the government’s exercise of control over the lands. Which is to say that since the Canadian government had been in charge of their lands for so long, Indians could no longer claim title. The other three justices said more evidence had to be presented to show that the title was extinguished.

  Even though the practical results of Calder were unclear, says Brock, “it proved to be a catalyst.” A lot of administrative arrangements were transferred to Indian bands. The opening up of oil and gas resources in western Canada brought many of these issues of economic independence to a head. In 1982, when the Canadian government “patriated” the constitution from Britain, it also adopted a charter of rights, which included a section on Aboriginal la
nd and titles. Prior to this, the Canadian constitution was technically part of British law. This new stage of Canadian law provided an opportunity to alter and clarify the Canadian federal government’s relationship with First Nations.

  Starting in 1984, a series of court decisions advanced the claims and rights of First Nations. There were a number of talks between the prime minister, leaders of First Nations, and provincial leaders to try to define Aboriginal rights. Talks broke down in 1987, with no clear definition emerging, but as Brock tells me, “Aboriginals were established as the rightful leaders for the community.”

  Much of the impetus for these court decisions and political negotiations came from the province of British Columbia. In part, this was because so many British Columbian tribes never signed official treaties with the colonial British or French government, unlike tribes in the eastern parts of Canada. And so their relationship with the Canadian government was even more ambiguous than that of their peers to the east. With the wealth of natural resources up for grabs in British Columbia, the area was ripe for litigation.

  The only bands in British Columbia that did have agreements with the former British government were the groups on the southern part of Vancouver Island that had signed the Douglas Treaties. Between 1850 and 1864, Sir James Douglas served as representative of Hudson’s Bay Company and then as governor of Vancouver Island and British Columbia. He was primarily interested in maintaining a peaceable environment for trading and, as such, sought to purchase land from the First Nations in the area.

  Douglas seemed to recognize that Indians thought of the land as their own – not as belonging to everyone or to the gods or Nature, broadly speaking, as is often assumed. On March 25, 1861, Douglas wrote to the Duke of Newcastle, who was then secretary of state for the Canadian colonies, “praying for the aid of Her Majesty’s Government in extinguishing the Indian title to the public lands in this Colony.” He wanted money to pay the Indians for their land, arguing that the natives had “distinct ideas of property in land, and mutually recognize[d] their several exclusive rights in certain districts.”42 The First Nations varied in size, and some of them were effectively extended families, whereas others divided up their land among different families within the band. The point is this: even before Europeans arrived, the First Nations in the area had divided the land among themselves and didn’t think of it as collectively held or, alternatively, unowned.