The other side of the story

Page 6

On July 6, 1995, Judge F. Muldoon of the Federal Court trial division dismissed our claim that sections of the Indian Act are unconstitutional as being inconsistent with section 35 of the Constitution of Canada by infringing the Aboriginal and treaty rights of Indian Bands or First Nations to determine their membership.

We will appeal this Judgement in the Federal Court of Appeal.

Judge Muldoon's 124-page decision can only be described as the most anti-Indian pronouncement of recent judicial history. The plaintiff bands-Sawridge First Nation, Ermineskin First Nation and Tsuu T'ina First Nation-view this judgement as insulting, degrading, without legal merit and amounting to a judge's personal statement of political beliefs rather than a reasoned determination of legal issues.

Of greatest concern is the extinguishment of community rights covering band membership and use, possession, occupation and control over reserve land.

There is a litany of complaints to be heard about the judge's bizarre comments and apparent lack of reasoning, examples of which include:

Judge Muldoon stated that "membership, use, occupation and benefit of Indian lands was not asserted by the plaintiffs' putative ancestorsin the least degree." Despite the fact that Indian nations were the original inhabitants of this land, which they agreed to share by treaty with others, they now are being told, by an exercise in judicial revisionist history, that they never controlled their societies or their territories;

Judge Muldoon found that Indians "lost" their societies upon the coming of Europeans, and experienced "false, puppet chiefs and social granulation." He says that this caused the Indians themselves to request "The government to assert control, for and on their behalf, as in the statutes, so in the treaties." So he finds that any aboriginal or treaty right to control Indian reserve community membership or the use and occupation of reserve land are forever extinguished in law;

Judge Muldoon's focus is on the statutory return to Indian status and band membership of the women who lost their status under the old section of the Indian Act. He incorrectly treats Indian status and band membership as synonymous, even though he never challenged a return to Indian status of anyone, to band membership to the extent that the government rather than the bands made the decision to grant membership. Moreover, the judge totally ignored the fact that the women returning to membership represent only a tiny fraction of the total new membership population of 118,00, being forced into the bands by the government.

He went on to refer to Indian peoples as "more primitive" and "adolescent" compared with the others (non-Indian) "adult state";

According to Judge Muldoon, the ancient oral history of Indian peoples and their tradition of handing down to each generation the stories of their culture and histories provides information which is "so unreliable," amounting to what he sees as "skewed propaganda, without objective verity";

He described the oral history evidence given at the trial by Elders as "ancestor advocacy or ancestor worship," which he sees as "one of the most counter-productive, racist, hateful and backward-looking of all human characteristics," and at odds with government-created documents alone which he calls the "authentic historical record";

His expressed opinions insultingly deny the obvious truth that Indian peoples had their own distinct organized societies before European contact, and that each had a clear cultural identity and internal rules of membership and organization;

He denounces the legal concept of the "honor of the Crown" in dealings with Indian communities, stating it to be "nothing amore than a transparent semantic membrane for wrapping together Indian reserve apartheid" and perpetual dependence on Canadian taxpayers";

We believe they very existence of Indian bands in Canada is threatened by the Federal Court's ruling. It cannt go unchallenged.

Ed. note: This is the main text of a July 24 joint press release of the Sawridge, Tsuu T'ina and Ermineskin First Nations.