Trust. Integrity. Reputation.
Trust. Integrity. Reputation.
Top News - October - 2002
After a one-week ride beginning in Browning, Montana, First Nations riders arrive at Blackfoot Crossing on the Siksika Nation in southern Alberta on Sept. 20 to take part in the 125th anniversary of the signing of Treaty 7.
Photo by: Yvonne Irene Gladue'Certainty' model causes concern
OPP's Deane resigns-Seven years, no inquest'Disgraceful' management of trust account, judge charges
Extinguishment or not extinguishment? - Editorial
Recovering without the needed help - Guest ColumnCheck out Ontario Birchbark
THE ENTIRE CONTENTS OF WINDSPEAKER'S OCTOBER ISSUE
ARE ONLINE IN THE ARCHIVES - ACCESS IS RESTRICTED TO SUBSCRIBERS ONLY.
CLICK HERE FOR ONLINE SUBSCRIPTION INFO.
'Certainty' model causes concern
Paul Barnsley, Windspeaker Staff Writer, Lac La Martre N.W.T.
Young people belonging to Treaty 8 nations are fighting with Treaty 11 members in the streets of Yellowknife, because of a boundary dispute and rights issues raised by the signing of a major self-government agreement.
The Tlicho Agreement was initialled Sept. 4 by the chief negotiators of the Dogrib Treaty 11 council, the government of the Northwest Territories and the government of Canada.
It is the first combined land claim and self-government agreement in the N.W.T.
Under the agreement, the Tlicho First Nation would own approximately 39,000 square kilometres of land in a single block surrounding or adjacent to the four Tlicho communities of Behchoko (Rae-Edzo), Wha Ti (Lac la Martre), Gameti (Rae Lakes) and Wekweti (Snare Lake). Tlicho lands would include both the surface and subsurface resources. The Tlicho would also receive about $90 million that would be paid over a number of years, and a share of the resource royalties received by the government annually from the Mackenzie Valley.
The Tlicho government would succeed the Dogrib Treaty 11 council and the Indian bands in the Tlicho communities. The Tlicho government would have law-making powers over a wide range of matters, including the protection and promotion of Tlicho language, heritage and culture, and the management and protection of Tlicho lands and resources. Tlicho laws would apply, generally, to all persons on Tlicho lands and to Tlicho citizens off Tlicho lands.
But the Tlicho's First Nation neighbors in the northern reaches of Treaty 8 territory say the agreement extends over their traditional lands. In a scenario that is reminiscent of the conflict between the Nisga'a and Gitanyow people in British Columbia, the Akaitcho people say their interests have been ignored by a federal government that wants a deal so badly it's not playing fair.
Paul Boucher, a negotiator for the Akaitcho First Nation in Treaty 8, blasted the deal.
"First and foremost, it's the worst deal in Canada," he said. "Look at the certainty clause. It extinguishes rights that you wouldn't believe. I wouldn't sell out my land for that kind of certainty clause. To me, to get a certainty clause like that in the agreement, someone must be bought out."
A federal government press release said the Tlicho agreement "would provide certainty with respect to Tlicho rights, title and obligations. The Tlicho would agree not to exercise or assert any Aboriginal right, other than any right set out in the agreement, or any Treaty 11 right, other than rights respecting annual treaty payments and the payment of teachers' salaries."
Boucher and other observers say there's no difference between extinguishing a right and requiring the First Nation party to agree not to exercise or assert that right. The right is still dispensed with.
Robert Nault, minister of Indian Affairs and Northern Development, told Windspeaker that's not the way it works.
"Well, I think the new certainty model that we're using is a recognition of the reverse, that there are certain rights that are not defined that may be defined in the future and the way the certainty model is structured is that it allows for an orderly process to bring those rights to the treaty," he said.
"And so what's being suggested to you is the exact opposite. This model has recognized that in government we can't assure ourselves completely that everything you put in that you need will be all that's needed down the road in the future. So we've allowed for this orderly process and, in particular, if the courts rule on a particular right down the road, it gives us an opportunity to negotiate putting it into the treaty in an orderly way without having it upset, as Marshall did, the whole structure of government as we know it.
"But in fairness, I think the question should be asked of the Dogrib themselves. They're the ones that have been pushing and now supporting the certainty model. Governance is a fluid thing; it changes over time. What governance looked like in Canada for non-Native people a hundred years ago is a lot different than what it looks like today and that's the recognition in this treaty."
Boucher believes that this, like the agreements that have been negotiated under the British Columbia treaty process and then rejected by the grassroots people, is one that grassroots Tlicho people will not agree with.
"I don't think that agreement was ever explained to the people," he said.
The Akaitcho say that between 230,000 and 250,000 square km of their territory are affected by the agreement. They have initiated court action to challenge the inclusion of this land in the agreement.
Boucher said this agreement doesn't recognize what's best for First Nations people in the region.
"It's about the government's own agenda," he said. "Why do you think the government initialled. Because they have a big land mass now and [the government says] 'We extinguish' and then we're secondary. No, it's not that way. We have legitimate treaty, traditional land use rights up there that our people have used that land since time immemorial," he said.
He said his people hope to work out their differences with their Tlicho neighbors.
"It's First Nation to First Nation and we have to work it out," he said. "But then the government put in their own agenda."
He pointed out that there were two First Nation parties in the region and the government could have chosen to negotiate with one or the other.
"And guess who they chose? The ones that wanted to extinguish. There's no doubt that this is extinguishment," he said. "What does fee simple mean? What happens when you don't pay your taxes? The government's going to take it back."
Boucher said his community doesn't want to interfere in the affairs of the Tlicho people.
"They can have their agreement as long as it's not a land grab against another First Nation," he said. "We agree that people should have an agreement and whatever they agree to, they have to live with it. But they also have to respect us and not grab all our lands that actually belong to us."
Much like the legal action launched by the Gitanyow after the Nisga'a final agreement was signed, the Akaitcho lawsuit accuses the government of bad faith bargaining.
"They're trying to sell the same car to two people and whoever comes up with the best deal for government; the government will go for that," he said. "The government does not want to deal with the historic treaties. It's not about doing modern treaties. It's about implementation of the treaties that have been negotiated already and living up to those expectations."
The fact that young people are fighting over a political issue is a sign that there are very strong feelings on both sides of the issue, he said.
"It's going to get worse. Elders going to bingo, they're not even talking to each other."
Copies of the agreement are being made public for information and comment. The information period will last about three months. Communities will be advised of opportunities to learn more about the agreement and provide their comments. It is at this stage that changes to the agreement can be considered, government sources say.
After the information exchange period, the agreement will be taken through the ratification process by each of the three parties. It is expected that this will occur before the end of the year.
OPP's Deane resigns-Seven years, no inquest
Paul Barnsley, Windspeaker Staff Writer, Toronto
On the day Ontario Provincial Police Acting Sgt. Kenneth Deane was scheduled to appear before the Ontario Civilian Commission on Police Services (Sept. 23), he announced his resignation from the police service.
He had been ordered by an OPP adjudicator to quit his job or be fired after being convicted of criminal negligence in the death of Dudley George.
Pierre George, Dudley's brother, was in Toronto to attend the commission hearings. He said a sign was posted on the hearing room door announcing that Deane's appeal had been withdrawn. Hours later, news reports began to circulate. They were short on information, but all said Deane had resigned from the OPP.
All of this occurred as the George family begins the eighth year of its wait for a public inquiry into the shooting.
While activists marked the seventh anniversary of the death of Dudley George at the hand of Deane on Sept. 6, Pierre George stayed home.
He told Windspeaker he wanted to mark the anniversary quietly. He also asked that we relay his thanks to all the people-Native and non-Native-who have adopted the call for justice for his late brother.
Pierre George has not participated in his family's multi-million dollar wrongful death lawsuit against former Premier Mike Harris and other government and police officials. He believes it is the wrong approach. He has been working to persuade Ontario government officials to look into the events of that night, appealing to their sense of justice. George is still waiting to see if the province's chief coroner will call a coroner's inquest into the death. He believes that inquest would reveal information that would force the government to call a full-scale public inquiry.
Sam George, another brother of Dudley who has been the family's main spokesman regarding the lawsuit, spoke at a vigil at Queen's Park-the Ontario legislature-on the evening of Sept. 6.
Church and labor groups have joined First Nations people in pressuring the government for a full accounting. Even journalists have joined the battle.
Toronto Star reporter Harold Levy wrote a 30-minute radio play that depicts the events of that fateful night in 1995. He contacted this publication to tell us where to find it.
"My present goal is to let as many people in Canada and the U.S. and elsewhere know that the play exists and that it can be found on the Web," he said. "Especially since we are approaching the seventh anniversary of Dudley George's death and neither the Ontario or federal government have ordered an independent inquiry. Nor is there any sign that they intend to call one."
The play entitled "Death at Ipperwash" can be found
on the Internet at www.virtuallyamerican.com. You'll need to click under the drama section. It was written by Levy, directed by Alanis King and produced by Sherry Shute.
Levy and his partner Peter Edwards, author of One Dead Indian have been reporting the Ipperwash story from the beginning when, they remind people, it was depicted by the OPP as an attack on police by armed Natives. It was later demonstrated in court that the Native people were unarmed.
While many Native people have welcomed the reporters' work as an important part of the drive to force the Ontario government to confront the unanswered questions about Ipperwash, Pierre George feels they are making money off his brother's death.
Levy denied that his radio play was an attempt to profit from the tragedy.
"No one made a cent from Death at Ipperwash. In terms of myself, I must have spent at least a couple of hundred hours working on the play. I paid all of the costs-including producing 400 copies of the CD-out of my own pocket," he said. "It was one thing to advance the news story, as Peter Edwards and I have been trying to do for years, but another to tell the story in a way that people could connect with their hearts. None of us took a cent. None of us wanted a cent. We all felt a higher purpose, and I expect you will find that purpose reflected in Death at Ipperwash."
Even as the anniversary approached, more news surfaced that suggests a cover-up in the case. In an article that appeared in the Toronto Star on Sept. 5, Edwards and Levy reported that documents filed in court revealed a "senior OPP officer ordered the destruction of records of a telephone conversation from the police operation at Ipperwash Provincial Park the night Native activist Anthony (Dudley) George was shot to death."
The allegation was made in an anonymous letter filed in court the day before by George family lawyer Murray Klippenstein. The family believes the letter was written by an OPP officer who was at the park in 1995.'Disgraceful' management of trust account, judge charges
Paul Barnsley, Windspeaker Staff Writer, Washington DC
Gale A. Norton, department of the Interior secretary, and Neal McCaleb, assistant secretary for Indian affairs, were ruled to be in contempt of court by a federal court judge on Sept. 17.
U.S. District Court Judge Royce C. Lamberth is presiding over the Cobell case, a demand for an accounting of Indian monies held in trust. Saying Norton and McCaleb had committed fraud on the court in four different ways, the judge also held them in contempt for failing to observe a 1999 court order to begin major reforms of the trust.
The Individual Indian Money (IIM) trust was set up in 1887, a time when many tribes were moved off of about 90 million acres of their land. They were granted royalties from the leasing of oil, mineral or access rights to a remaining 11 million acres. Royalties were put into the IIM trust, which is now generating about $500 million (US) a year for approximately 300,000 shareholders.
In 1996, Elouise Cobell, treasurer of the Blackfeet tribe in Montana, sued the government saying the fund had been mismanaged. The lawsuit claims that at least $10 billion has been lost or stolen.
In his 267-page opinion, the judge Lamberth blistered the government for its actions in this case.
"The Department of Interior's administration of the Individual Indian Money (IIM) trust has served as the gold standard for mismanagement by the federal government for more than a century. As the trustee-delegate of the United States, the secretary of Interior does not know the precise number of IIM trust accounts that she is to administer and protect, how much money is or should be in the trust, or even the proper balance for each individual account," the judge wrote. "In fact, the Interior department cannot provide an accurate accounting to the majority of the estimated 300,000 trust beneficiaries, despite a clear statutory mandate and the century-old obligation to do so. As the court observed more than two years ago, 'it is fiscal and governmental irresponsibility in its purest form.'
"Equally troubling is the manner in which the department of Interior has conducted itself during the course of this litigation. In February 1999, the court held Bruce Babbitt, then-secretary of the Interior, and Kevin Gover, then-assistant secretary of Interior for Indian Affairs, in civil contempt for violating two of the court's discovery orders
"Among other things, the court found that almost immediately after proposing a clear and unambiguous order that the court signed, 'the defendants disobeyed that order and successfully covered up their disobedience through semantics and strained, unilateral, self-serving interpretations of their own duties.'"
The judge said the new Bush administration officials have carried on the same behavior.
"The defendants' misconduct did not end there. Since holding then-secretary Babbitt and then-assistant secretary Gover in contempt, the court has had to sanction the department of Interior for filing frivolous motions, enter several temporary restraining orders to prevent the department from taking potentially adverse actions, and appoint both a special master (to oversee discovery) and a court monitor (to review the defendants' trust related activities). Moreover, there are several motions currently pending before the court regarding alleged misconduct by the Interior department. In short, the department of Interior has handled this litigation the same way that it has managed the IIM trust-disgracefully," he wrote.
The decision is of interest to Native people in Canada as well. Six Nations of the Grand River First Nation in Ontario has a similar court case against the Canadian government. The band filed suit in 1995 asking for an accounting of its trust monies. Lawyers representing the band have said the government has tried to stall progress in this case as well. And the Samson Cree Nation and Ermineskin Cree Nation in Alberta are also suing Canada over what they allege is missing money in their oil and gas revenue accounts.
