A History of Colonialism & the Law: The Two Row versus the Indian Act

Guswhenta, or the Two Row Wampum Treaty, made between the Haudenosaunee and the Dutch in 1613 has been the basis of all subsequent treaties with European and North American governments. The Two Row states that:

We will not be like Father and Son, but like Brothers. This wampum belt confirms our words. These two rows will symbolize two paths or two vessels, travelling down the same river together. One, a birch bark canoe, will be for the original people, their laws, their customs, and their ways. The other, a ship, will be for the newcomers, and their laws, their customs and their ways. We shall travel the river together, side by side, but in our boat. Neither of us will make compulsory laws or interfere in the internal affairs of the other. Neither of us will try to steer the other’s vessel.

Canada has repeatedly broken this treaty, through the Indian Act, for example, and through various specific interferences such as residential schools, imposed band councils, the reserve system, as well as taking away voting and other legal rights.

The Indian Act has been described by anthropology professors Steckley and Cummins as “a tool of large bureaucracy created “to deal” with Indians,” which predates confederation, going back to 1755. In what is now Ontario (then Upper Canada), “native concerns” were the responsibility of the military until 1830, at which point control was transferred to the lieutenant governor of the colony. At this point, the reserve system was put in place to encourage Indians to become farmers (despite the fact that communities in present day Ontario and other regions were already proficient farmers). Agriculture and Christianity were considered the best way to civilize Indians. Full control of Indian affairs was given to the colonies in 1860 . Indians became a federal responsibility in 1867 under the British North America Act. The Indian Act of 1876 consolidated already existing federal and colonial statutes. According to professors Steckley and Cummins, “The essential thrust of the legislation was to centralize and codify all legislation and to solidify the position of Natives as wards of the state” directly in opposition to the original treaty which specified that neither nation would interfere in the affairs of the other

In 1880 John A. Macdonald set up a separate department to govern Indians: the Department of Indian Affairs. This department is known today as Indian and Northern Affairs Canada (INAC). At most recent count, INAC is one of 34 federal departments and agencies involved in programs and services for native people.

Various programs and policies have come out of this paternalistic governing of First Nations communities. While there isn’t enough space to go into each of these in detail, I want to at least give one detailed example—residential schools—to show the extreme injustice inflicted on First Nations people at the hands of the Canadian government.

From 1879 onwards, industrial and boarding schools for natives began, modeled on the Carlisle Indian school in Pennsylvania, which was established by Lt. Richard Henry Pratt in 1878. His purpose for establishing such a school with respect to the student was to “Kill the Indian in him and save the man”. This was done by removing native children from the influence of their homes and communities. By 1910 most children had been moved from industrial schools to residential schools. Attendance at residential schools became compulsory in 1920. The goal of these schools was to “fit the Indian for civilized life in his own environment,” as written within residential school statements, meaning that the students were to learn mainstream Canadian culture, but expected to return and live on the reserves, outside of mainstream cities and towns. In Canada, these schools were funded by the federal government, and run by the church. Funding was determined according to the number of children at a given school, and as such, the schools recruited sick, as well as healthy children. Several other factors in addition to this contributed to appalling death rates. The dormitories were overcrowded and poorly heated, and food was nutritionally inadequate . Tuberculosis was the leading killer. In 1904 Dr. P.H. Bryce was appointed medical inspector for the department of Indian Affairs. He reported death rates of 24% in 15 prairie schools. In the File Hills industrial school in Saskatchewan, 69% of the children died of tuberculosis over the course of a decade. According to one deputy superintendent general of Indian Affairs, “It is quite within the mark to say that fifty per cent of the children who passed through these schools did not live to benefit from the education which they had received therein.” According to Steckley and Cummins, “Nothing significant was done to improve the situation. Although the death rate would decline, death would become part of the residential school tradition” .

The emotional, physical, and sexual abuse that occurred in these residential schools has also been well documented. It has been suggested that part of the reason for this was the lack of funding: schools became careless when hiring, especially after 1945, and many schools ended up employing the “devoted and deviant” ranging from incompetent, to sexual predators, to sadists. Punishments could be life-threatening, or even life-ending. For example, for speaking ones native language, children had pins stuck in their tongues, were punched in the face, or scarred with studded belts. Punishment could also be humiliating, sadistic or sexualized.

A number of residential school survivors have been diagnosed with post traumatic stress disorder, with symptoms including panic attacks, insomnia, uncontrollable or unexplainable anger, alcohol and drug abuse, sexual inadequacy or addiction, and eating disorders, to name a few. In the late 1980’s legal charges were brought for the first time against the schools, a few years after the last of the residential schools closed down. Steckley and Cummins raise implications for the three generations of parents that came from these schools:

When the students left the schools, they often had little experience of the caring parenting traditional to the people. Instead, they had been “parented” by outsiders, a few of them “nice,” some of them “nasty,” much more of them strict and impersonal. Three generations of parents would be influenced by these models when they became parents.”

Residential schools are one aspect of colonial intervention in Canada. This is one example of Canada’s colonial violence towards First Nations peoples. There are many more examples, such as the “Sixties scoop”, in which children were taken from their homes and communities and raised by white families, many of whom were sent to the states and , or policies of enfranchisement, in which to gain full rights as a citizen, one had to give up one’s identity and status.

These particular projects and policies ended in the 1980s, however their effects are still felt and a paternalistic attitude of governing natives as wards of the state is still evident. INAC’s mandate today is still to “improve social well-being and prosperity”; to “development healthier, more sustainable communities” and to encourage Aboriginal people and Northerners” to “participate more fully in Canada’s political, social and economic development—to the benefit of all Canadians”. This is a far cry from the original treaties which recognized the Haudenosaunee as an autonomous nation, and vowed that neither would interfere in the internal affairs of the other. In addition to this, colonialism continues through appropriation of the land and resources of First Nations people.

Recent Six Nations Activism in the Context of Ongoing Colonial Interference

An important document in current struggles is the Haldimand Proclamation of 1784, which was granted by Sir Frederick Haldimand to Mohawk allies for their service to the British during the American Revolution. The Haldimand Tract consists of six miles on either side of the Grand River from the mouth to source, originally covered 955,000 acres. This land was granted as compensation for the loss of the six-million-acre homeland taken by the United States in upstate New York after the American War of Independence.

Shortly after the granting of the Haldimand Proclamation, John Graves Simcoe, Governor General of Upper Canada issued the Simcoe patent, limiting the Haldimand Tract to 275,000 acres for the exclusive use of Six Nations, and allowing the other 720,000 acres to be leased, surrendered, or sold. Much of this land was sold outright, including 125,000 acres without any full record by the Crown. Additionally, much of the land was mortgaged or leased “to create an annual source of income for the care and maintenance of the Six Nations” (as reported in Windspeaker, June 2006). Much of the money from leased and mortgaged land was used by the Crown, and never repaid, such as the $14,717.58 used to offset government debt in 1845, with no record of repayment, or the $8,000 used by the the municipal council of Haldimand in 1851, again, with no record of repayment (Winspeaker, June 2006). In addition to this, loans were used by the Law Society of Upper Canada, McGill University, the City of Toronto, Simcoe District Council, Pulblic Works Canada, and additional Crown debts, all without repayment.

In 1907, Six Nations hired legal assistance to investigate in particular the Grand River Navigation Company, for accessing Six Nations’ funds held in trust by the crown without Six Nations’ permission. The Crown stalled these attempts for legal redress, until passing Section 141 of the 1927 Indian Act, which made it illegal for Indians to hire a lawyer, and prevented anyone from being able to create a fund, or provide any money to Indians to pursue claims. Section 141 of the Indian Act remained part of Canadian law until it was finally repealed in 1951. Between 1951 and 2006, Six Nations has filed 29 claims. Of these, only one claim, that against Canadian National Railway, has been finalized. The other 28 are recognized by the Crown as legitimate, but have yet to be resolved.

In spite of these legitimate claims, much of the contested land within the Haldimand Tract continues to be settled and developed, without permission by Six Nations. Additionally, the federal government has a policy of not negotiating the return of settled land. Thus, in response to continuing encroachment of land, in February of 2006, members and allies of the Six Nations community set up barricades and began ‘occupying’ a portion of land known as Kanonhstaton. Kanonhstaton is loosely translated as “the protected place” and is also known as Douglas Creek Estates, in Caledonia—it is situated within the borders of the Haldimand Proclamation of 1784. This action was supported by the Clan Mothers, who issued a statement on March 20th, 2006, reaffirming Haudenosaunee sovereignty and calling for nation-to-nation negotiations. Shortly after the reclamation the Henning brothers, developers of the Douglas Creek Estates subdivision filed an injunction to remove protestors from the site. The injunction was granted by Justice T. David Marshall, who owned land within the Haldimand Tract, and served to the protestors on March 3rd, 2006. Protestors burned the injunction, and refused to vacate the site.

At 5am on April 20, 2006, about 150 Ontario Provincial Police raided the site, armed with tasers, batons, tear gas, and pepper spray against unarmed Six Nations protestors. The OPP raided after promising Six Nations that they would not enter without notification. The raid occurred right around the same time as the release of the Ipperwash inquiry, an investigation into the the shooting and killing of unarmed native protester Dudley George by Sergeant Kenneth Deane during the OPP raid at Ipperwash. Sixteen arrests were made at Kanonhstaton, with charges including assault with a weapon, mischief to public property, intimidation, resisting arrest, creating a disturbance, and assaulting police. Charges of assaulting police officers, according to first hand accounts and witnesses, resulted from self-defence. Hazel Hill writes that upon being restrained and kicked by five police officers, she instinctively defended herself by kicking back. Her son came and tried to pull the police off of her, and was shot in the back with a taser. Unlike at Ipperwash, nobody was seriously injured, and the OPP were eventually driven off the site by Six Nations protestors, non-native supporters, and the nearby Six Nations community, who immediately flooded to the site. Hazel Hill, one of the spokespeople at the time, in her “Report from the camp on police raid” wrote, “we had hundreds of Six Nations people gathered at the site within the hour, and had the police surrounded at the back gate; and finally, the police agreed to withdraw. We marched them off the back gate, many women linking arms together walking police off our land followed by the rest”.

Struggles for the land at Six Nations go hand in hand with struggles for sovereignty and autonomy. To show the long history of struggle to reestablish autonomy, and the context of this struggle, it is useful to consider a brief history of Six Nations political activism.

Deskaheh (also known as Levi-General, 1873-1925) was a Cayuga sachem and the official speaker of the Six Nations Iroquois. At this time, the community was still governed by the hereditary form of government set down by the Great Law of Peace (Kaianere’kό:wa). In 1920 and 1923, Deskaheh attempted to persuade the League of Nations regarding the matter of Iroquois sovereignty. In 1923, when he went to the League of Nations in Geneva with this plea, he received support from a number of nations, including Estonia, Ireland, Panama, and Persia. However, Britain intervened, and the proposal was dropped. The following year Deskaheh took his case to the King, but with no effect.

In Deskaheh’s absence, the Canadian federal government ruled that Six Nations could no longer be governed by traditional means of governance and imposed the elected council system, without consulting the community. The RCMP occupied the confederacy council house at gunpoint, and changed the locks, so that traditional council could no longer meet there.

On January 1st, of 2007 Six Nations celebrated the new year by returning to the confederacy council house. Six Nations people and supporters were invited to share what Linda Powless, of the Turtle Island News called, “a turning point in their collective history” and “a peaceful movement to begin the healing process and restore Haudenosaunee identity to Six Nations.”

Traditional Haudenosaunee government is being recognized in ongoing talks with the federal government in Caledonia regarding struggles for the land. At the time of writing, Six Nations Haudenosaunee are ‘negotiating’ with the federal government regarding compensation for Six Nations land that has been settled, unpaid leases, as well as the return of unsettled land belonging to Six Nations. I have the word ‘negotiating’ in quotation marks, as negotiation implies ‘bargaining in good faith’, which is something Six Nations community members do not see as happening. In fact, not much has been settled since negotiations began two years ago.

Despite the flashpoints of 2006, municipalities continue to push development, and once land is developed, the federal government will not negotiate its return. Land activists block development, and then are criminalized. These same activists are viewed as terrorists and criminals and subjected to much hostility, fear, and racism by those ignorent of the complex and ongoing history of injustice, including Canada’s selective adherence to its own laws, leading up to land based direct action. In addition, these activists are criminalized within a racist court system, in which municipal courts issue injunctions to block Haudenosaunee protesters for standing up for the land, and bail conditions include the caveat that activists are no longer to return to the development site in order to be released from jail. This is a political diversion, and is a strategy to silence those who are standing up for the land, despite continuing colonialism—the development of land that belongs to Six Nations, and continuing interference with sovereignty through criminalizing Haudenosaunee land defenders within the Canadian legal system.

(last updated Dec 2, 2009)

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