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Ten years ago Indian claims to aboriginal entitlement to vast tracts of land were scoffed at, but after the near-success of the Nishga settlement in 1973, the Government of Canada is now beginning to take Indian claims seriously.
Negotiations on land claims are presently underway in Quebec province where the ancestral fishing and hunting grounds of 2,000 Cree and Inuit people will be destroyed by the massive James Bay Hydro Project. A land claims settlement is being considered in the Yukon, but the proposed terms of settlement of neither of these claims would be acceptable to the Indians of British Columbia who claim their losses over a century are equivalent to $10 billion plus royalties on natural resources and a land settlement.
In the Northwest Territories, the Dene nation has been declared by the native peoples therein and they forsee themselves as a "nation within a nation". They want all the same rights of self-determination, which have been granted to Third World countries; they want to define citizenship as it will apply to their nation; and they want a settlement on the 450,000 square miles in the MacKenzie corridor.
Land claims by Indian people have been mounting since 1971, and promise to continue through the next decade or even longer depending on the success or failure of Indians in their battle with the politicians. No longer trusting the courts to deal with the issue, Indian people are seeking settlements in the political arena.
The importance of land claims, often affecting entire provinces, which were not covered or ceded by treaties, is self-evident. But reaction by white society has been basically one of indifference. Protest by Indians who feel they have been unjustly dealt with in this issue usually evoke such comments as: "Now what - are they protesting"; or, "Now what do they want"; and lately in B.C. during one peaceful demonstration, "They should all be shot!"
In 1971 the National Indian Brotherhood met in Quebec City with a group of lawyers to define exactly what they meant by "aboriginal entitlement". Although the President of the Brotherhood felt that Indian people should never have been put in the position where they had to prove their entitlement to the land, they did come up with a statement showing clearly how Indians view themselves in relation to the land called Canada. Mr. Sampat-Mehta, an International jurist who attended the meeting writes in his book International Barriers:
"The North American Indians were the original inhabitants of this country. They occupied the whole country, and they formed themselves into groups or tribes and each claimed a portion of the country for its people particularly for hunting purposes.
Before the advent of European discovery and subsequent dom-" The North American Indians were the original inhabitants of this country. They occupied the whole country, and they formed themselves into groups or tribes and each claimed a portion of the country for its people particularly for hunting purposes. Before the advent of European discovery and subsequent settlement of North America, the native people had uncontested dominion over their tribal territories and all the people therein. They could govern, make laws, wage war, and had their own political, social, cultural education, economic and property systems. Each tribe had absolute control over the resources and products of its own land. In other words, the tribes had political sovereignty. To native people, their title to tribal lands was explicit in this political sovereignty. The actions of the Colonial powers in entering into treaties with native peoples were an acknowledgement of sovereignty and a recognition of native rights to the land."
Although the treaties were never ratified by Parliament, they set legal precedents as to how Indian nations would be dealt with by-the Colonial government seeking to bring in settlers. However, as the Northwest Territory Brotherhood has pointed out, the treaties did not have the significance for the Indians that they did for the Colonial government. The Government felt the natives were ceding their title to the land, when in fact the Indian's agreed only to allow settlers to come into their territory peacefully in return for certain promises. Many of these promises, they say, have never been fulfilled.
It is also interesting to note that the 'Morrow decision in the North West Territories and the Malouf decision in Quebec added further legal weight to the Indian arguments.
How the Colonial government dealt with Indians and their claim to the land is further dealt with by Mr. Sampat-Mehta. "With the arrival of the European, the Colonial powers gradually assumed political control over the land and the native people with whom they came into contact. The Colonial legal system accepted the territorial boundaries established by the tribe, but imposed their own concept of native rights. In their pursuit of lands for settlement they imposed significant limitations centered around a government monopoly on land acquisition (by the Royal Proclamation of 1763) and the-description of the native title to the land as a 'usufructurary right' (see St. Catherine Milling Co. 1889)"
It is neither longer self-evident nor even acceptable that Indian peoples at the time of European settlement of this country were disorganized "savages" roaming the country. In fact, the Charter of the United Nations and even the concept of democracy itself was based on the Confederacy-of the Mohawk Nation. Political systems and the concept of well-defined tribal territories did
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exist, but these were gradually extinguished and replaced. The strongest legal arguments in favor of the recognition of aboriginal rights came from the 1973 Supreme Court of Canada judgement on the Nishga case.
The decision went so far as to recognize the Nishga's of British Columbia as a nation and split their decision on aboriginal entitlement 3-3 with 1 judge deciding against them on a technicality.
The term nation in International Law is interchangeable with the term state which is defined in More's Digest of International Law as: "For all purposes of International Law, a state may be defined to be a people permanently occupying a fixed territory, bound together by common law, habits, customs, into the-one body politic, exercising, through the medium of an organized government, independent sovereignty and control over all persons, and things within its boundaries, capable of making war and peace, and of entering into all International relations with the other communities of the globe."
The Nishgas as well as other independent Indian nations in the province of British Columbia, for, example, fulfilled this criteria prior to white settlement and "indeed up to the signing of the Treaty of Oregon of 1846. They and other British Columbia Indian nations share the common conviction that they have never relinquished their aboriginal sovereignty over the territory, nor had they ever submitted themselves voluntarily to any other system of government or administration." (Indian News, Vol. 15, No. 7)
The basis of claims in the courts has been the Royal Proclamation of 1763, but apparently in the case of British Columbia this does not apply. The argument used against the: Indian claim there when they try to use this document to back their claims is that they could not be included because in 1763 no one knew they existed. (See Nishga case) In straight point of fact, then, perhaps the claim of B.C. Indians should be directed to the United States government which ceded the B.C. territory to England or the Dominion of Canada under terms of the Treaty of Oregon in 1846. Without extinguishing Indian title, the U.S. government gave the territory to the British, who in turn did not extinguish title to the province except for a few minor treaties on Vancouver Island. As Sampat-Mehta argued in -his evaluation of the Nishga case after the judgement was handed down in 1973: "It cannot, however, be argued that because two bigger nations neglected to recognize the sovereignty of a smaller nation that the sovereignty did not exist, and consequently becomes extinguished. This would seem to do violence to the acknowledged norms of the sacredness of a state's sovereignty." (Indian News, Vol. 15, No. 7)
This argument applies also in the Jay Treaty where an agreement was signed between Britain and the U.S.A. defining state boundaries between Canada and the U.S.A. without consideration as to the Indian nations. The Indian nations" had fought on the side of Britain as equal allies against the U.S.A. and they had also been allies during the struggles between the French and the English with some fighting on either side. In war, they were equal and in peace they were ignored.
To Indian people land claims are serious and have a basis in common law and International law. What has fired them in their struggle is the fact they live at the bottom of the social ladder in this country. They have a 65-80 per cent unemployment rate; their mortality rate is the highest in the country; their incarceration rate is 50 per cent among males and 90 per cent among women (Schmeiser Report with the Law Reform Commission); the education drop-out rate is the highest among ethnic groups; their suicide rate especially among young people is out of proportion with the major society; and their housing by western standards is appalling, with many houses having no indoor plumbing- and some with no electricity. Studies on any of these subjects can be obtained through the National Indian Brotherhood, Suite 1610, 130 Slater Street, Ottawa, and Ontario.