Colonization as a Global Experience: Theories of Colonization, Conquest and Extinction 9/8/11 9:39 AM

← Movie Review:

Disease hit Wampanoag the hardest, so weakened their power in

relation to other First Nations groups in the areas, and so teamed

up with the Europeans to try and even out balance of power

Opened up space for Europeans to come in.

o Religious: Bible suggested their would be empty space, and

interpreted it as divine intervention

Religious

o European: Moral authority to act on behalf of the Wampanog,

claim jurisdiction on behalf of god and thus the church

Assimilation in Church camps, active conversion goals,

while not so much on the part of the Wampanog

Wampom:

o Viewed as currency by Europeans as a currency

o Wampom has important cultural role in agreement making,

that ensured that the agreement would be sacred, and not

able to be broken

o Different understanding of the nature of the agreement

o First example of treaty type agreements

Perceptions of threat

o Relationship between the women

o Europeans brought women and children which in Wampanog

society implies that they weren’t going to be violent, because

Wampanog wouldn’t involve women and children in war

o Europeans viewed as ‘savage’ because of pre-emptive raids

on entire communities

o Wampanog viewed as ‘savage’ due to lack of European style

clothing and abode

Surprises in movie:

o Wampanog initially pitied the Puritan settlers

o Speed at which settlers arrived

o European power dynamics:

Puritans couldn’t go back to England, they would either

make it or die

Huge population growth, where they weren’t totally able

to keep up

Lots of turmoil and power shifts between empires

French, English, Dutch, Spanish influences in the

south

Key points:

o One of the first English experiments with treaty making

Ambiguous how successful it is

Interplay between two impulses on English side

Assimilation, Conquer, Demand, Domination

Treaty, Compromise et

English never able to totally sort out which way

they are going to go

o Prof: This uncomfortable interplay between two sides

continues until today on behalf of the English “settlers”,

continues to be unresolved

←← Colonization

The acquisition by a nation of other territories and their peoples, in

the case of indigenous peoples in North America, we look at

European Colonization

← European Colonization

A political and economic phenomenon where European countries

explored, conquered, settled and exploited other territories

Not all countries did this in the same way

← Why do nations colonize

Exploit natural resources

o Out of it domestically, and go to seek it elsewhere

Create new markets for the colonizing country

o China market – so many people there, they will buy more of

our stuff

Expand living space for colonizer’s population

o Not enough room, so expand elsewhere (ie. North American

situation)

Extend colonizer’s way of life (more European)

o Eg. Puritans

Extend “civilization” to “backward” peoples (more European)

o Evangelical aspects of Christianity may be a pretty strong

drive of this aspect

← Types of Colonization

Exploitative

o Profit

o Expansion of power

o Religious conversion

Settler

o Expand power

o Profit

o Escape tyranny and oppression

o Religious conversion

The two broad categories overlap in many areas

← Different Models of European Colonization

Spanish

o Attempted to put themselves at the head of existing power

structures

o Hierarchical societies

o Local/centralized urban style areas – missions

Would ‘encourage’ people to move to these areas

o Mercantile economy

Came looking for gold

Set up sugar/slave trade

o Business, exploitative style

Portuguese

o Similar to Spanish

o More economically driven, less conversion/forced

assimilations

French

o South: large plantations, slave trade

o Quebec: integrationist

o Nature of the resources – there is no such thing of a beaver

“mine” so you need to work with local populations, because

you can’t concentrate the population in a single area

Dutch

o Very privatized, decentralized, high reliance on companies

o Dutch East India Company

English

o More decentralized, privatized, not necessarily sent by the

crown

o Hudson’s Bay Company

o Reliance on legal structures

Importance of honor codes to culture

Want a legal legitimacy to back them

Leads to the difficulty defining how they are going to

interact

← Doctrine of Discovery - one of the first international law

An international legal principle which enabled colonization

Provided legal justification for governmental and property claims

over territories and inhabitants

Justified by religious and ethnocentric ideas of European superiority

Europeans who arrived first in new territories gained property,

governmental, political and commercial rights

← Origins of the Doctrine of Discovery

Crusades -11th century

o Claim the holy land for Christendom

1400s – Series of Papal Bulls

o Spanish/Portuguese conflict over who has the right to which

territory, so they ask the pope to sort it out

o Which part of the world belongs to Spain, to Portugal

o Pope says: whoever got their first, whoever “discovered” it,

only Europeans counted

← Elements of Doctrine

First discovery – European

o Discovery creates titles, full sovereignty

Occupancy and possession

o IN order to establish claim of discovery, you had to stay there

and create a form of presence, to fully claim sovereignty

o If you could claim the mouth of a river, you could claim the

entire watershed

Preemption

o Who ever is in control, has the sole right to buy land from the

local people

Indian Title

o Related to #1 and #2

o After discovery, native people automatically lose full title and

sovereignty over their lands

o Retain rights to use and occupy the land, but no longer

sovereignty, and it could last forever, until there is an

agreement for succession

Tribal limited sovereignty and commercial rights

o Rights are only at the pleasure of the European power

Contiguity

o Watershed example

o You have dominion over reasonable amount of related land

Terra Nullius

o Aka. Vacant Land

o Basic Foundation of Doctrine: if Europeans aren’t there, the

land is legally empty

Christianity

o Pope defines it

o By European – meant Christian countries

o Some sense a duty to colonize

Civilization

o Civilized countries are Christian

o Superiority of European civilization, so its a blessing/privilege

that they bring their culture to other lands

Conquest

o Military victory is considered an automatic transfer of

sovereignty

← Importance of Flags (1490s)

Flag symbolizes all of the elements of Doctrine of Discovery

Become central to the European colonization experiences

← Peoples all over the world operated with the same set of values, but

the Europeans codified it

←← Efforts to Repudiate Doctrine of Discovery

Never been officially overturned

UN Declaration

Quakers

Episcopal Church

Presbyterian Church

Parliament of the World’s Religions

United Nations Permanent Forum on Indigenous Issues 2010

Terminology 9/8/11 9:39 AM

← Teacher- Nation: Anishinabe, Language: Ojibwe, Tribe/Band: Lake

Superior Band of Ojibwe, Reserve: Keweena Bay

←← Aboriginal – yes

In Canadian context includes First Nations, Inuit and Métis

← Native - yes

← Indian (status vs. non-status) – non-status in Canada

← Native American - yes

← American Indian – yes (older term)

← First Nation (s)/Inuit/Métis

← Capitalize or not??

Personal preference, just please be consistent

First Nations, Inuit, Métis, Aboriginal - Always

Indian – if talking about legal/political status

← Indigenous

Used in a global setting for a political purpose

←← Why is definition so difficult:

Everybody is indigenous somewhere, so why do some people qualify

while others do not.

Several indigenous groups haven’t been there all that long, or may

not be the original groups there

o Eg. Maori in New Zealand, only been there for 400 years or so

more than the European settlers

A universalizing term that overlooks individual experience, vast

variation in circumstances

Indigenous vs. ethnic minorities

Tribal vs. indigenous

Are settlers indigenous?

States want to narrow definition; Indigenous people want broad

definition

Difficult to figure out who arrived first in Asia, Africa and Europe

←← UN Declaration on the Rights of Indigenous Peoples

Passed in 2007, after 30 year struggle at the UN

No definition of indigenous in the declaration, entirely based on self-

identification

o State resistance to a lack of a definition

o HUGE victory of indigenous peoples

←← UN working definition of elements of indignity

1. Pre-colonial presence

o easy in North America, not in Asia/Europe/Africa

2. Continuous cultural linguistic and/or social distinctiveness

o more difficult in North America

3. Self-identification and/or recognition by other indigenous peoples

← All 3 categories are very subjective, and leads to very little clarity

on these issues

Missing category: connection to land/territory/geography, left out,

victory on the state side

←← Indigenous People of the World

More than 300 million people worldwide

6% of global population

Live on 6 continents

More than 5000 distinct peoples in 72 countries

←← Global Distribution from 1990

Asia 80%

South America 7%

North America 6%

Africa 4%

Australia/Oceania 3%

Europe 0.1%

←← Countries With Indigenous Majority Populations

Greenland

Guatemala

Bolivia

Mongolia

Vanuatu

Western Samoa

Kiribati Nauru

←← Indigenous populations over 1 million

Canada

USA

Much of Asia

Central Africa

Western S. American

←← What do they have in common

Discrimination/Marginalization

Assimilation

←←←

Discourse 9/8/11 9:39 AM

← Definition: a particular way of representing ideas and the relations

between them

A group of statements which provide a language for talking about

o i.e. a way of representing a particular kind of knowledge

about a topic

← A way of constructing knowledge

← Limits the way a topic can be constructed

←← Foucault

20th century French social theorist

Statements work together in “discursive formation”

Discourse implicates practice

“Discursive practice”

o the practice of producing meaning

All social practices have meaning, therefore all practices have a

discursive aspect

← There are no facts about the social, political or morals world

o Look for the meaning instead

o 1. Power has the ability to make things true

power produces knowledge

o 2. Discourse is one of the systems through which power

circulates

Discourse produces knowledge which constitutes power

o Those who produces discourse have the power to make it true

← Brantlinger

Social Darwinism

o The “doom” of “primitive races” cause by the “fatal impact”

with white Western civilization

o Disappearance is inevitable

Causes of Extinction

o 1. Violence

o 2. Disease

o 3. Savage Customs

Self-exterminating savage

←← Extinction Discourse

According to the discourse, the extinction of Indigenous peoples is

o Inevitable

o Self-fulfilling

o Universal

← Restall’s Challenge to Dominant Discourses Surrounding Indigenous

Peoples

Localized nature of native responses to the Spanish

Local identities remain paramount

Denial of native defeat, sometimes inverted it

Native exploitation of Spanish

Borrowing from Spanish characterized as local

Tenaciously sought ways to continue local ways of life and improve

the quality of life

Discourse of evolution, adaptation

Exclusion of Indigenous Peoples from Decolonization9/8/11 9:39 AM

← International law was both a universalizing discourse and a form of

cultural imperialism that defined the normative foundations for the society of

states creates by the expansion of Europe – Paul Keal

←← What does this mean?

← How can international law function as a universalizing discourse and a

form of cultural imperialism?

←← International Law and the Primacy of States

Treaty of Westphalia (1648) invented modern state system and

international law

International law privileges states over all other structures

International law as it emerged/been practiced over the centuries

was closely connected to narrative of empire, imperialism,

colonialism, racism – Henderson

Indigenous peoples as “primal anarchy”, “other” – Hobbes

Congress of Vienna (1814-15): Indigenous peoples as non-persons

in international law, they were exempted from it

← Modernization

Definition: the adoption of European ideas and values

Inevitable

Means throwing off tradition and adopting a market based

economy, nation state government, laws and Western culture

← Indigenous Peoples

Challenge the framework, worldview (the binary of state vs. other)

Want to maintain varied aspects of own traditions, values, etc.,

while still understanding that states are there in international law

← UN Decolonization

Adopted paradigm of the nation state

Blind to Indigenous systems of governance

Excluded Indigenous Peoples

Decolonization = Independent, territorial, sovereign statehood for

former colonies

Nation = state, still worked in the binary

← Early International Indigenous Activists

Deskaheh – First Nations group w/ treaties with USA and Canada

that weren’t being recognized, went to League of Nations to settle

dispute, told was not a state, and should go home and work it out

with Canada

T.W. Ratana – Maori activist from New Zealand

o Treaty signed in 1840 not being respected by 1850, so early

1920s, was told by League of Nations the same thing as re.

Canada

← History of Decolonization

League of Nations (1920s)

o Deskaheh (1923)

o Ratana (1925)

o Turned away – Domestic concerns

UN Charter (1945)

o “Peoples” have inherent right of self-determination

o inherent rights – govt cant give them or take them away

o “Peoples” left undefined

o Meant: self-determination means the right of peoples to

independent framework, maintaining statehood framework

o Belgian Thesis: Extend right of self-determination to

Indigenous peoples living within nation-states

USA, CANADA, NZ, AUS – no, we mean colonies outside

the territories

← The Indigenous Exclusion

1960: UN condemns colonization, launches decolonization efforst

Decolonization emanates from principle of self-determination

Salt Water Thesis

o Self-determination applies only to overseas colonies, those

lying over “salt water

o Indigenous peoples specifically exempted from decolonization

o Indigenous peoples not “peoples” but now domestic

“populations”

Movement to include Indigenous peoples in decolonization, with the

right of self-determination

Until today: Indigenous peoples use the term peoples,

governments use the term populations

Guest Speaker: Larry Grant – Musqueam Elder 9/8/11 9:39 AM

← Larry Grant - Musqueam elder and language instructor at UBC

Born & raised with a Musqueam identity

Gives a short speech in Musqueam: My name is Larry Grant, I come

from Musqueam, my ancestors were here to greet first people

← Land – Point Grey to Lions Bay to Indian Arm to Maple Ridge to Fort

Langley to Tsawassen

← Capt. Vancouver arrives ad sees many empty villages because of

disease which came across north America from the south and the southeast

During the 1500s-1700s

Explorer mandate to claim and occupy land

← People have been on delta since last ice age, starting from Fraser

Canyon and the mouth of the river used to be at the Port Mann bridge

St. Mungo site – Musqueam interpretation centre at the south

footing for the Alex Fraser bridge

← Identity

People can from the land and those colonizing

When south footing going in, asked for it to be moved to protect

archeological site, ignored to protect the “Sudbury House” colonial

era pub

Disregarding the importance of what was there, disrespect to first

peoples, not able to collect evidence to corroborate oral history

←← Maori – have stories of travel to arrive where they did

← Musqueam have no stories of travel, journeys to arrive where they are.

History of their people has them as always being there

← Oral society

Stories repeated many many ties to ensure history passed down

Chose to remember, disregard

← Every family has a historian who takes stories from older generations

and remembers them. Ability is recognized at a young age, child who is able

to remember and maintain those stories

Genealogy, cultural activity, geography

Not common practice in western society, oral history not accepted

unless it is written down

Everyone’s biases will come out in their stories, including Mr.

Grant’s. There are things that people forget, but there is no manual

to look them up in, people fact check against and collaborate with

other family members

← Meetings

Hang up your anger, your differences, outside the door, we are here

to learn something

When a speaker is designated at an event, they become the

historian by default, there to relay the message of the host

o Diplomatic

o Removed from the host’s concerns, so able to present them

calmly

o The host does not fill this role because they are too close to

the issue, and anger could more easily come out

Unlike the Speaker of the House, no agenda, no opinion. They are a

speaking tool Almost always male, because of the power of the

voice & presence of speaker, but it is occasionally a woman

o No a reflection of society, which is bilateral, not maternal or

paternal. Connections to many communities up and down the

coast

←← Larry Grant’s Story

Summer spent fishing with aunty and great uncle who didn’t speak

English. Spoke different dialect on mom’s side of the family

Not status, went to public school. Eng of grade 8 went to family for

2-4 years to learn about family. Wanted to make sure he could

continue to go to school

o When he came home he was speaking the other dialect and

got in trouble. Told to speak Musqueam instead because

language is an important part of identity and who you are

o English doesn’t define who you are if it isn’t your first

language

Defines what resources you have in your territory,

plants, animals, stories, creation stories. Able to

scientifically tear both apart but they are important to

all peoples

← Orative stories

Myths. Musqueam stories have them always here.

Great-grandparents still alive with their stories

o Many young people not aware of them, as it takes a complete

community to raise a child, not just an individual family

o This is what the residential school system did, assimilation to

English boys and girls

Outlawed language – central identity factor

o Post-residential school, kids would come home and argue with

elders about the truth of their stories

No words for god, angel, devil, heaven, hell in the Musqueam

language

o Society has been around 7000 years more than the bible,

there is no identity with a single person-god-creator

o There are stories about many different things, all

transformation stories are in a sense creation stories

Wreck Beack transformation story

o Site of fresh water and someone divided them, wasn’t going

to share it

o 2 rocks there, 1 larger, 1 smaller

← NAIPA – North American Indian Phonetic Alphabet used for writing

because ther are unique Musqueam sounds

Must be spelt properly or ignoring identity

Eg. Robby Burns and his moon licht nicht (moonlit night)

← Musqueam Story

Don’t go to the boy at now 25th and Camosun

o 2 headed serpent that will try to entice you, sounds like a

mallard duck

o if you hear the loud duck, don’t go near

o eventually runs out of food because the local people don’t go

there

o went to the sea to ear, so heavy it created Musqueam creek

o its poop killed all plants, and new ones grew a year later

← Little nuances get lost in translation, lost parts of identities there too

←← Personal identity

I am from Musqueam

Born in Agassiz in the middle of the night during hops harvesting

o 2-3 months premature, unusual to live at the time

Everyone worked for Grandfather, all money went to him to care of

all

o Put in a shoebox, mom allowed to stay with him 24 hours a

day, normally would go right back to work after birth

Grew up with grandparents in Musqueam

Spent a couple of year in reserve on south side of New West

o Only aboroginals could live on reserve

Dad is a farmer from China, arrangedish marriage, courted in-laws

o Dad couldn’t live with mom on the reserve because of Indian

Act. Grew up in a family kept apart by law, essentially a single

parent family

o When parents married (4 years old), became non-status and

didn’t go to residential school, went to public school

o Went to school in China town at the Chinese Presbyterian

church, then Strathcona (DTES), VanTech grad 1955

Fairly long commute to Van Tech from Musqueam

2 kinds of discrimination

o Musqueam identity (family, stories, culture)

Canadian governent said not Indian, but Chinese, no

residential school for you

Now viewed as a god-send, and going to public

school with a wide selection of different

immigrants

o Saw all types of social stratification (much in part of

colonization)

Purpose: individual affluence and empire powers akin to

today’s multinational corporations, benefit of the few,

not the many

o Before Residential schools, egalitarianism central to

Musqueam teachings. Rich person is the one who shares the

most

2 types of riches – physical resources, oral traditions

o If it was all about me, I wouldn’t be here to share my story

with you

How to understand government control of identity

o Asked mom: you’re considered different

o Looking Asian during WWII, cowboys & Indians dynamic

(wanted to be John Wayne, why always on the losing side)

Status

o 1975 status reinstated after 20 year court battle

Dr. Coulthard’s Lecture - Recognition 9/8/11 9:39 AM

← Indigenous peoples and the politics of recognition in Canada

←← The turn to recognition: a political history of aboriginal rights in Canada

← Arguement

Since 1969, the colonial relationship as shifted from a

domination/assimilation structure to one that is maintained through

granting aboriginal rights in a very limited way

o Colonial relationship is facilitated through the granting of

rights to aboriginal people

What the state structure gives to people, not

necessarily what the want/require

Rights in 3 areas

o Rights to lands

Territorial rights

o Rights to self-government

Political rights

o Economic rights

Economically benefit from land development

What is a colonial relationship

o Chracterized by domination

o Power (economic, gender, racial and state power, capitalism)

has been secured into an unequal relationship between

indigenous and non indigenous people, as represented by the

state

o End goal : disposition of indigenous peoples of their lands and

self-governing authority over that land

Canada needs land for state-formation, economic

development, settlement

o Canada has to gain land from indigenous peoples

Originally through state muscle (1800s onwards)

Unilateral action on/over indigenous peoples for

the purpose of dispossession

Now through treaties

Land central to the relationship in Canada

Indian Act

o End goal: creates legal category of Indians, and then proceeds

through its policies to eliminate them as a distinct entity. Get

rid of Indians

o Get rid of them through assimilation as legally and culturally

different

o Once you get rid of Indians, you don’t have the Indian land

question anymore, and then you can proceed land settlement

o Indian people didn’t want to assimilate, which is why it wasn’t

the quick process as anticipated by the government, but still

an issue today

← The turn to recognition – more subtle colonial relationship

The White Paper -1969

o Get rid of the Indian Act (Trudeau and Chretien)

Protection of individuals as equal under the law

Dangers: group rights in Quebec and First Nations,

collective self-determination rights

Super-individualist understanding with rights and

liberalism

Problems of Indigenous communities stemmed from the

fact that Indians were treated unequally in the law

Saw Indian act as discriminating against Indian

people (true) and that this was the source of their

trouble

Views as a simple legal discrimination issue

Simplistic terms = simplistic solutions

o Blanket Legal and Political Assimilation for Status Indians

Indian Act and constitutional basis for differentiation

would be eliminated

Remove Indian act

BA 1867 amended so Indians no longer seen as

government responsibility

Canada would publicly recognize First Nations

contribution to Canadian culture

Within the framework of Canadian state

First Nations should receive services from the same

channels as all other Canadians

91.24 of BNA – Federal govt has jurisdiction over

Indians and land reserved for them

eliminate this

Control of Indian lands (reserves) handed over to

Indians in the form of private property

o Get ride of legislation that legally distinguishes them from

other Canadians, and absorbing them

o Maybe positive in theory

Trudeau viewed as making people more equal, promote

equality

Repeals a bad, racist, colonial piece of legislation

o Potential bad

First Nations people not consulted, dominant culture

assumes what is best for the “childlike” native

population

o First cause for First Nations political unilateral action, as

ultimate endgame of assimilation and dispossession

Amount of political pressure, white paper formally

shelved in 1971

The Calder Decision -1973

o Supreme court decision about Nishga’s Nation in north-

western British Columbia

About aboriginal title: ownership and jurisdiction over

land

Deciding if the Nishga hold title to their lands

SCC rules against the Nishga 4-3

o The Nishga lost, but the way they lost is important

3 rules that they had title, but it had since been legal

extinguished by the crown

assumption that native peoples aren’t equal, and

don’t have the same rights as European peoples

Doctrine of Discovery/Terra Nullius

3 rules that they still held title to the lands in questions

because it had NOT been legally extinguished by the

Crown

No treaties

Canada: Real estate transactions

Natives: Establishment of nation-to-nation

relationships

1 ruled against Nishga based on a technical question

not specifically related to the content of the case

o Question that remained open:

There was such a thing as aboriginal title that needed to

be dealt with in some way

Explicitly recognized as something

The Paulette Decision and the Mackenzie Valley Pipeline – 1973

o Like Calder, but in NWT

o Put forward by the Indian Brotherhood of the NWT (now the

Dene Nation)

To stop a pipeline going from tar sands up the

Mackenzie valley

Filed caveat with land registry in NWT

We have some interest in the land proposed for

development

Crown felt it had already been dealt with in earlier

treaties

Justice felt that they weren’t going to resolve this in

court, so put together a commission about the nature of

treaties and their nation-to-nation relationship

Still fresh oral history of Treaty 11 and 8

o Ruled that Dene have interest in land claims and have

indigenous rights

o Suggested that Dene title was never extinguished by signing

Treaties in 8 and 11 (1908 and 1921)

o Re-opened the question of existing Aboriginal land rights in

the NWT

o Went back to the Supreme Court

Lost, but only because it shouldn’t have made it to the

Supreme Court, but didn’t mention any issues of land

claims, so that remained valid

The Mackenzie Valley Pipeline Inquiry 1975-1977

o Big oil/gas reservoir discovered in Alaska during oil crisis

Gov’t wanted access and decide to build a pipeline to do

so

Same issues as with the Keystone pipeline now

Evironmental, outside influence etc.

o Established to look into the environmental/social intersts of

the proposed MPV

Because of Calder and Paulette, gov’t needed to

address these issues actively

o Appointed Berger to investigate issues about the pipeline, and

held consultation around the territory

Combined with scientific evidence and indigienous

testimony about social, cultural impact and

environmental impact

Called for a 10 year moratorium on the construction of

the MVP

Goal that it would give enough time to deal with

land claims

o Forced the issue of land claims into the public eye

The Comprehensive Claims Policy: In all Fairness

o Fundamental change in how Canada treats First Nations

peoples

Treaty Process in BC offshoot of this

o Established in 1973 to address issues of land rights in rights of

previous decisions and reactions

Deals with claims to land, where title has yet to be

formally extinguished through historical treaty or other

means (much of Canada)

o Seek certainty over land ownership and jurisdiction, by

exchanging ambiguous Aboriginal rights and title for benefits

clearly detailed in the text of the settlement

o Purpose: Conspiracy Treaty

Create a political and economic environment suitable to

capitalist economic development of Indigenous lands

o BC on finally participated once there was an economic threat

Exchange the uncertainty for the land claims provision

Historically serve the same purpose as treaties do

Land claim agreement makes sure that there is a stable

investment climate over the land

First Nations under existing treaties don’t have access to the land

claims process, except in the NWT where the Paulette decision

applies in recognizing that the federal government committed fraud

re the nature of the treaty

o Why do First Nations participate in land claims when it is such

an unequal relationship

Better than nothing, we can either participate in the

established system and get something, or not, and be

left out of the process

Economic necessity – extreme poverty and lack of

economic resources, which are often aided through the

land claims process

Greed on behalf of some native leaders

The effect of participating on understanding of the

process

← Recognizing Aboriginal Rights in the Canadian Constitution - 1982

Repatriation of Constitution

o Aboriginal peoples needed to have their rights in the

constitution

Via direct pressure on gov’t, the queen and

international venues

You can’t transfer power from the UK to Canada without

recognizing their relationship with Aboriginal peoples

Section 35.1,2,3,4

o Section 1

Recognition of existing Aboriginal and treaty rights

Important because it eliminates historical rights

that are no longer recognized (ex. Native title for

treaties)

Gives the state wiggle room on what is and

is not protected

o Section 2

Who are aboriginal peoples?

o Section 3

For the purposes of Section 1, land claim negotiations

will also be included

o Section 4

Guaranteed equal male and female rights re Section 1,

2 and 3

← Federal government given 3 years to ensure all legislation complied

with constitution and charter

Section 15 of charter compelled changes in Indian Act

←← Recognition of self-government rights – 1995

Constitution doesn’t say what existing aboriginal and treaty rights

are?

o First Minster conferences to establish what these are through

negotiation, this time included major Aboriginal political

associations

o 4 conferences between 1984-1985

o Unable to get any clarity

1995 Decided to recognize in policy

o attempt to stave off litigation

o claimed as an inherent right, but not true, because would

imply it existed before Canada existed, but in practice they

are dictated by the federal government

akin to slightly more jurisdiction than

cities/municipalities

That makes it not very inherent, but more of a power

relationship

← Recognition issues re colonialism

Terms of recognition granted will always be determined by and in

the interest of the colonial power

Over time, these unequal terms of recognition often get “internalized:

by the colonized thus rendering the inequality less pronounces or

even identifiable as inequality

Recap of Identity Guest Speakers & Film 9/8/11 9:39 AM

← Glen: How to get at the resources occupied by the land. The Indians

are in the way of those resources, and so they need to be delt with, to

eliminate that problem. Indian act was the “legal” tool to do this

←← Distinction between Canada/US: Glen said Canada was more subtle,

Sheryl argues that they were similar. Competing motivations between

conquest and treaty making. End goal still to “deal with the Indians”.

Differences maybe better along east-west axis AND the temporal differences.

←← Very important date: 1969 – White Paper. Government proposed

legislation to get rid of any sort of differentiation because it’s discriminatory

- everybody would be equal. Eliminate Indian Status – so there would be no

point to have reserves anymore.

←← What is recognition as described by Glen: in a colonial conquest, they

need to be recognized by the colonial power, uneven situation to begin with.

Granting of rights, on state terms. Being defined on the terms, from the

perspective, using the framework prescribed by the colonial power

structures.

Rights and title can be ceded by agreement with the state. An

exchange in made. Aboriginal title in exchange for some agreement

with the Canadian state.

After these agreements with the state are made, the set of

rights/scope of rights are very limited and are dictated by the

Canadian state. Land and self-determination rights are NOT on the

table, cultural etc. ones are.

The whole process is very problematic, but people still do for a

whole set of real life, practical reasons.

← Violence – not necessarily physical violence, but some sort of political

trouble

←← Australian residential schools and the film

Yes film about Australia, but the same things was happening in

Canada and the USA at the same time with the same thought

processes and motivations.

← Reaction paper – is it cohesive, arguing a particular point. Talk about

something that struck you and how it relates to what you’ve learned in class.

Please take license with it.

Time for about one big question

← Film text citations, just use it in text, same thing with presentations. If

you are doing something from the other readings, please cite formally.

←← Apologies

Australian PM – Feb 2008

Canada 2008

Action that is a progressive motion in a positive way. But doesn’t

come near to enough re policy change

Land 9/8/11 9:39 AM

← First Nations Property Ownership Act

Tom Flanagan has offered this proposed act a s a solution to the

First Nations land problems in Canada

Quick Write – are you in favour of his proposal or opposed (didn’t

actually happen)

o Privatization/Fee simple title. Get of trust status completely on

the reserves

New System

o Full ownership of property, individually and collectively.

Converts to fee-simple title for nations and individuals

o Voluntary

o Removes a First Nation from the Indian Act

Loss of official status and all the benefits that that

includes

o Land can be bought, sold, mortgaged and taxed

Taxes – A person of Indian status is living on reserve,

they are “exempt” from certain taxes

Arguments For:

o Control

o No one else involved

o Terminates a racist legal distinction

Arguments Against:

o Form of assimilation

o Removes some responsibility from the federal government for

the REAL problems on reserve

o The size of the reserves are really small

o People cant afford the taxes, so they have to sell it to cover

the taxes

← USA Case

1871: US Congress unilaterally ends treaty0 making with Indian

tribes

1998: Dawes Act / General Allotment Act

survey tribal land and divide into individual allotments

individual could select or be assigned parcels from 40-

100 acres

what ever not allotted could be sold to non-“Indian”

Surplus Land

Lots and lots and lots sold

1906: Burke Act

o Secretary of Interior decide in an Indian was competent to

manage land and own affairs

Yes - land removed from trusts and declared taxable

With or without individuals knowledge

Land loss through tax foreclosure

o Land held by deceased could be sold off to non-heirs by

secretary

Total land lost under policy – 90 million acres

1928: Merriam Report

o Heavily criticized the allotment policy due to land loss

1934: Wheeler-Howard Act

o Ended allotment policy

o Established banc council government

Remaining effects

o Fractionated heirship

o Checkerboard land ownership pattern

o Landloss

Areas of Concern 9/8/11 9:39 AM

← BOLDLEY READING:

←← Herman Merivale (1861)

←← Categories of Tribal Customs

“Violations of the eternal and universal laws of mortality” (need to

go immediately!!!)

o Cannibalism

o Human sacrifice

o Infanticide

“Less horrible” but still “pernicious” (more time could be taken to

deal with these issues)

o Tribal kinship and social order (ind. Govt)

o Indigenous languages

Simply “absurd”

o Styles of dress

o Innocuous customs

←← Bodley Methods of Cultural Modifications:

← Direct Force (outlaw things)

← SOCIAL ENGINEERING

Help others to help themselves

Education

o Language (colonizer’s or indigenous)

o Remove children from education in indigenous knowledge

o Creating individuals out of collectives (removing children

Religion/Spirituality (outlaw)

Change the ecological climate/environment – removing the source

of food aka remove the buffalo from the prairies

Change the economic climate

← SMITH

Convince members of that culture of the positional superiority of

Western Knowledge

Things get uncomfortable here…

Appropriation of indigenous knowledge

o Contemporary issue

Indigenous knowledge:

o Definition: “cumulative body of knowledge and beliefs handed

down through generations by cultural transmissions about the

relationships of living beings (including humans) with one

another and their environment” – from Royal Commission on

Aboriginal Peoples

o *** note: indigenous languages are vital to indigenous

knowledge

o if no language, impossible to transmit knowledge***

← AREAS OF CONCERN brought to UN by indigenous groups (5)

unauthorized copying

infringement of individual copyright

appropriation of indigenous themes and images

culturally inappropriate use of images and styles

expropriation of traditional knowledge without compensation

← WATCH YOUTUBE CLIP on Issue of Eco Tourism – look at benefits

and their connection to the 5 messy areas listed above:

-Masai in Kenya

-called “New: Tourism ____”

-complexities in this case: commodification of their culture,

bifurication of culture (what the tourist wants to see and what

actually happens – are those cultural practices still happening, etc?)

-showed us some of the big debate – alive and well on both sides

(ind. And non-ind societies)

← International Initiatives to try to address these complexities:

o universal declaration on human rights

o convention on biological diversity

o declaration on the rights of indigenous peoples

o international labour org convention no. 169

o international covenant on Economic, social and cultural rights

o UN agencies

←←← Debate: Indigenous Peoples and Intellectual Property Rights

←-extend intellectual property rights to

included traditional knowledge

-patenting

-arguments for:

-will provide innovation

-incentives for conservation

-moral obligation to protect a particular set

of cultural property

-against extending intellectual property

rights to include ind. Knowledge

-would destroy the social basis necessary

for generation and managing knowlsge

-*ind knowledge is non-capitilist is essence

they believe in collective ownership

-can’t fit ind. Knowledge in western

framework

-is the term “appropriate” applicable to knowledge?

← -you can’t “take someone’s knowledge away”

←← Cases

What is the issue surrounding indigenous knowledge or cultural

property?

What is the indigenous knowledge at stake?

What is the source of the information?

Who are the winners and losers in the case?

Appropriation or protection?

←← Asia: The Bethma Practice in Sri Lanka

Water sharing/trading scheme between communities

o Several thousand years old

World bank studied it, and is not presenting the model to other

seasonally arid areas around the world

o World Bank didn’t ask, and didn’t compensate

← Africa: Hoodia

Weight loss supplement from cactus in the Kalahari dessert

Compensation for limited food source, is by chewing Hoodia

because it’s an appetite suppressant

How do they compensate the San (bushmen) people because this is

there knowledge

← South Africa: Rainforest Plants

Plant effective in destroying malignant cancer cells

o Serious global gain

Plants come from a particular area, how do you protect/patent that

knowledge?

← Arctic: Inuit & Arctic Animals

Seal hunting, not viewed positively in international arena

Part of Inuit cultural traditions, knowledge

← Australia & New Zealand: Indigenous Designs

Tattoos gained through particular acts

Patterns used in popular culture (fashion spreads, hello kitty etc)

Other people’s tattoos

How do you copyright patterns

← North America: Wild Rice

From N. Minnesota, S. Ontario etc

Naturally occurring grain from swampy areas

Harvested by hand

University of Minnesota could make GM rice that grows more

effectively

o Spores move into other paddies and don’t allow natural plants

to reproduce

So sell the Natural rice as distinct from GMO

o Which community gets the proceeds from this, who get the

pattents it?

Commodification of cultural herritage product

Midterm - Exam Prep & Recap 9/8/11 9:39 AM

← Give back test or lose 10 points

Section 1 – short answers (40%)

o Paragraph 1 – define

o Paragraph 2 – discus relevance

5 points each part

make point cohesive and analytical

may argue a side, or present an overview

Section 2 – essay question (60%)

o Choice of 2 fairly broad questions

o 4-5 paragraphs

o structured around a thesis statement

o show me what you know – structure around an argument, but

put in lots of information

all readings, lectures, films etc. are in play here

use evidence

may agree/not agree with what we’ve learned, but

please present a convincing argument

Here is the debate, this what is unresolved, here are

implications

o Use case information presented in class, readings, etc.

o If you can remember the author, great – if not give

contextualization to explain where you got your information –

still better if you can rememeber

Will probably take the entire class – make sure you budget time well

Review:

o Major terms and concepts from the notes and readings

o If it was important enough to do a quick write about it – its

probably on the exam – she will post the questions because

she’s awesome

Court cases – not a law class, so please understand the concepts,

but not what is going on.

Things in both readings and lecture – very important

o In only one or the other – still quite important

←← Recap

Very clear, explicitly stated thesis statement.

Follow this structure

o Thesis statement

o 3-4 major arguments, all linked to thesis statement

o some form of evidence for each statement, perhaps 2 pieces

readings, lectures, media experienced

Recognition argument paper

o Problem: strong tendency to reify the state

Turning the state into a solid object, rather than

considering it’s multifaceted nature AND the people the

make up the state

o Recognitions is a fairly new approach by the state, replacing

explicit assimilation

o Glen is trying to say the politics and language of recognition

will not fundamentally/substantially alter the colonial

relationship

← Should have included why not having a definitive definition at the

UN was a victory for IP

← Knowledge: collective nature, how it has been appropriated without

the consent of IP, and how it is a difficult system to rectify in

capitalism

← Self-determination: right of IP to make its own decisions,

relationship to self-governance, relationship to sovereignty, some

authors and what they have to say about theses issues

← Salt water and Belgian thesis: discussion on decolonization in the

UN, not groups internal to the land mass, should have mentioned in

some manner, IP weren’t included in the concept of self

determination, there were viewed not as a peoples, but as a

population

←← Include main points, debate and readings in all answers.

Self-determination, self-government and sovereignty9/8/11 9:39 AM

← What is the difference between the three concepts for indigenous

peoples (my thoughts)

Self-govt – practical, on the ground institutional practice, within the

existing sovereign state structures, not too different from municipal

or provincial power. They do not have sovereignty in Canada, but

they do have this

Self-deter – inate right, not needing to be granted from others

Soveg – based on state systems, the international relations

program: exclusive, recognized by other states, rights to

unchallenged rule of law over a territory

←← These terms are confusing and politically contentious

Aotearoa/New Zealand: Maori flag controversy

o 2008/2009 push by from Maori people to have the Maori flag

flown on the auckaland harbour bridge on their national day

(Waitangi day) – day of treaty signing

o 2 flag poles, and on major national holidays they fly the

applicable country’s flag (bastille da – france)

o Viewed treaty as a partnership, not subservience, most NZ

don’t feel this way

Tino Rangatiratanga – Maori word: sovereignty

o Waitangi Treaty in 2 languages

Maori version – sovereignty NOT seceded to the crown

English – sovereignty is seceded to the crown

o How much separatism is being asked for?

In international law – when a treaty says 2 different things in 2

different languages, common law says that the treaty should be

interpreted as to what the indigenous believe understood it to mean

at the time. – In practice this doesn’t happen, but there are

examples of it being applied in all common law colonial countries

←← Why were the treaty terms between Maori and the England so much

more “generous” towards Maori?

At the time Maori very powerful, fearsome warriors, the English

people were not in a position of as much power as in other colonies

←← Politics, Identity and Politics

Until the 1980s there was no universal Maori identity, but rather to

the individual tribes

Use of the Maori flag definitely originated as protest flag

←← Sovereignty

International law understanding

o Absolute power or authority

Over a particular territory

o Independence of a nation state, statehood

o ‘Totality of international powers’ (Crawford 1979)

o External sovereignty

Internal sovereignty = political and legal authority within nation-

states (DePuis 1987, Lashi 1921)

o Federalism

Shared within the state with the provinces etc.

NEW ZEALAND is NOT a federal state, so the concept of

internal sovereignty is more contentious

o Exists within a sphere of authority

←← Indigenous Sovereignty

Asch (Aboriginal Self-Government)

o Indigenous nations had equal sovereignty at contact

o Does not extinguish without consent, negotiation

English context: treaty

o Passage of time does not provide legitimacy

Macklem (Distributing Sovereignty)

o Best justification for indigenous sovereignty lies in distributive

justice argument

Eg. Comes down to social justice/poverty aliviation

o Claims are weak if made on claims of prior occupancy, and

cultural relativism or distinctiveness

This is vulnerable to the state coming in and taking it

away

o Critiques

Indigenous people are not indigenous people because

they are poor

Alfred

o Indigenous critique of the concept

o Incompatible with indigenous notions of power

o Maintains colonial structure

o By indigenous peoples aiming for sovereignty, they are aiming

for a western understanding of power, and that is an example

of further assimilation

o Critique

Suggests that indigenous peoples can continue on

exclusive of what is going on in power structures in the

world/of what else is going on.

←← Indigenous Self-Determination

Thuen (Saami Peoplehood)

o Protects cultural distinctiveness

o Right to decide their own affairs (like a self-government

arrangement without that language)

o No territorial demarcation

o Crosses borders

o Control of resource management

Alfred would probably like this model because it is moving away

from the eurocentric nation-state model

←← Aboriginal Self-Governance

Definition

o A degree of exclusion from the main polity (state govt)

Most, if not all, indigenous people have a desire to exercise some

measure of political, economic and cultural decision making for

themselves, separate from the surrounding state (Wilkins)

o When Wilkins is writing Self-Governance includes groups

which are ok operating within the state model, those who are

totally independent of it, and those who are on the border.

Alfred/Coulthard critique

o problem is that it is delegated from the state rather than an inherent

right

←← Self-Determination

United Nations meaning

Appears in

o UN Charter

o Universal declaration of Human Rights

o International Convention on Civil and Political Rights (ICCPR)

Other human rights instruments

"All peoples have the right of self-determination"

o Inherent, not a delegated, right

← Self-determination & UN Decolonization

Associated with decolonization regime (from 1950s)

Inherent right of all peoples

o Formerly colonized peoples can choose their relationship to

other political communities or states (Wilmer)

Usually interpreted as a discrete moment when an

aboriginal peoples decides what to do

Salt water thesis exclusion

o Only colonies that were separate from the mother county by

salt water all eligible for decolonization

Usually meant independence, sometimes joining another state

←← UN Declaration on the Rights of Indigenous Peoples

IP wanted to have the salt water exclusion removed

Recognized indigenous peoples as having right of self-determination

Protection for existing state sovereignty

o Decoupled sovereignty from self-determination

Changed UN’s meaning of self-determination

o Shifted away from sole state centric construction

←← Indigenous Self-Determination

Indigenous peoples have the right to freely determine their own

affairs as well as the degree of integration within a state (Lightfoot

2009)

Can be secured through a standards that exist either within states,

and/or outside the bounds of Westphalian states

o Negotiations must be done on an individual basis with states

More pluralism, multi-faceted view of self-determination

Increasing use of term among indigenous peoples

Diff way of interpreting sovereignty

o Less problematic in federations, where this distinction already

exists, less of a problem

o In states without a concept of divided sovereignty, this

becomes much more problematic

o BIG international challenge as is a different way of

approaching international relations for the past several

hundred years

Challenge to recognize equality

← Diff communities in diff parts of the world have diff perspectives on

what the ideal final outcome would be

Concept of sovereignty very much European, royalty based concept

Difference between the concepts of Nation and of the State

Maya Tailfeathers – Guest Lecture 9/8/11 9:39 AM

← From the Blood Reserve in s. Alberta, part of the Blackfoot confederacy

Largest land reserve in Canada

← Saami from N. Norway

← Chief and Band Council

Signed a deal with 2 oil companies without consulting/informing any

of the 10,000 Blood members, got a 50 million dollar signing bonus

Tribal members have no say in what happens to that 50 million

dollar signing bonus

o 10 days before Christmas an 800 dollar cheque was given out,

and what poor person would turn down 800 before Christmas?

50% of land for the next 5 years

200 wells will be built using fracking techniques

o chemicals used by these companies are patented, so they

don’t have to release information about what it is in them

o Ruins ground water

← Band members decided that they needed to do something, and left in

a legal no mans land

Companies – signed a deal with your representatives, so this is an

internal issue

Difficult situation, as there is very little recourse as to what the

options are

← Very high unemployment in the community, so thought that Band

would have signed deal with the goal of economic improvement for Band

members

Not the case

o Of the 30-40 people working on the site, none were band

members

Protestors preventing access to the site

o Arrested and put in tribal jail cell for 10 hours

o 2 court dates, 1 one yesterday

o Extensive international support

← Goal

Have criminal charges dropped

o Charged with intimidation

Big trucks and male oil and gas employees

Injunction against oil companies until the process is done in a

consultative, inclusive matter

←← Challenges

Apathy – people are in survival mode, and don’t have the energy to

fight this, have been beaten down for a long time

Fight the oil companies – not served best by the chief and council?

o Very recent right (June 2011) where Chief and council can be

held accountable for their actions and brought before courts,

but not a universal mechanism or option for recall

Financial mismanagement a serious issue on reserves with councils.

Treaty in 4 Anglo Countries 9/8/11 9:39 AM

← 10 min class presentation on Thursday

←← Why have there been treaties, and primarily in English speaking

counties?

Has been used to exercise some sort of nationhood, exchange,

sovereignty, some sort of consent between colonizers and

indigenous peoples

To what extent has it been used as a tool for colonization

← British Law Precedent

Royal Proclamation 1763 – North American

o Where we haven’t bought it, they can use it and be left alone

o Sense of British sovereignty, and that Aboriginal use

1873 Report of the Parliamentary Select Committee on Aboriginal

Tribes – New Zealand

o No private person can buy from indigenous peoples, but can

only be bought by the Crown

outlined how indigenous peoples should be treated

what has precedent meant for British law moving forward?

o It is the only way that settlers can legitimately occupy land

while at the same time recognizing the historic and ongoing

presence of indigenous peoples is via treaty

Cross-cultural law and/or colonialism?

o British common law understanding seems to cover both

Several ways to interpret treaty – not necessarily one or

the other

←← What does it mean to make a treaty?

Nation to nation negotiated treatment, and we shouldn’t think of

indigenous treaties as any different, but under colonial settings,

often used to coerce or negotiate the entrance of settlers into a

territory

Long history among indigenous peoples, different understanding of

how they are binding, sacred, lasting agreements

What happens with sovereignty?

o Whose sovereignty, what is exchanged, what kinds of

sovereignty exchanged

o British – sovereignty absolutely ceded and exchanged, does

not match up with many indigenous perspectives

Case

o Was sovereignty negotiated? What kind? How much?

← Typologies of Treaty

1. Treaty of Conquest

o military action with a clear winner/loser

o peace treaty to negotiate end of violence

o complete capitulation or surrender

2. Treaty of Cession or Sale

o land exchanged for money, ongoing rent, annuity

3. Treaty of Co-existence

o 2 distinct peoples or nations determine how they’re going to

live side by side

eg. 49th parallel between British Canada and USA

4. Treaty of Sharing

o 2 nations or peoples come together and agree how they are

going to live together, perhaps in a single nation state

structures etc.

Remember, not discrete categories, but a fair amount of overlap

←← How have treaty rights been shaped?

What is the history of treaties used in settling/colonizing this

country?

o How would you describe the relationship? Typology or original

relationship, and what has come out of that now

Hostiles relationship, no use of treaties – Banks gave 2

reasons, settlers felt they were the aggressors and

proved conflict

o Examples?

Contemporary status of treaty?

o Still in play? Current issues re treaty? What are they? Current

event example?

o

How are some of these treaty issues being addressed?

← History section

← Contemporary most recent

Pastoral lease

Mabo v. 2

commission

Group Presentations 9/8/11 9:39 AM

← New Zealand

1800s – First Contact

o late

o wanted to avoid many of the conflicts in North America

o New Zealand company and the British Crown did not agree, as

they both felt they had rights of pre-emption (very important)

Treaty of Waitangi

o Cnflictin interpretations: English vs Maori translation

British felt they had soveriegnty

Maori felt that this meant they were granted protection,

some benefits, but complete rights to self-determination

Company Territory

o High Price of Land + Settlers with Little Funds = Squatters

Major political voice

o Wakefield System

Land lottery – designed to be a fair system

Land distributed to individuals by lottery, Maori

guaranteed 10%

Land given was bad land, no one was happy

1852 NZ Constitution Act

o No actual constitutions

o Just sets up that NZ exists

o Maori lands guranteed, but never provided

1858 Fort Acre System

o Many new settlers found that there 40 acres were not

useable, and wanted Maori land

1845-1872

o Maori Wars

Maori rebelled, and the Crown lost

Land was taken anyways

NZ Settlements act said they were in rebellion against

the state, so the state could take their land

1865 Native Land Act

o Squatters on Maori land want legal title to “their property’

o Maori ended up losing lots of land this way

1863

o Australia Waste Land Act

Provided pastoral leases to farmers

Outside of the Wakefield system

No one happy with how everything worked out, haphazard system,

treaties undermined and language manipulated

← Current Issues

o Historical problems = current conflict

o Growing Maori population, no longer enough land

o Land claims process very cumbersome

o Gov’t historically used language to work around treaty

provisions

Addressed Now

o Govt recognizes that action needs to be taken

o Waitangi Tribunal

Appointed by government and must be reappointed

Originally dealt with environmental issues

1985 got retroactive authority to make

recommendations to prior treaty agreements, shift to

land issues, during claims process government was

selling land to private owners

o Govt considers Maori one nation, not historically that case

Treaty nature

o Based on British law

o Coercive and manipulative (different terms in different

language)

o Continued erosion of Maori lands

←← Canada

Perceived to be the most peaceful of the colonization process

Trends etc.

o First contact – perceived to be one of mutual dependence and

mutual benefits

o As settler pop’s increased in Lower Canada, shift in powers,

increased marginalization of aboriginal people

o Treaties 1-7

Competition between Canada and US, as to claims to

territory

Clear the way for Canadian settlements

o Treaties 8-11

More about resource access than competition with US

o 1) increased government dependency

no compensation provided, became dependent on the

government law for their existence

government service promises not fulfilled

o 2) process of marginalization

no longer equal, bilateral negotiations

1-11 still exist because constitution act acknowledged all pre-

existing treaties

BC the most complex treaty process

Type of agreements

o 1. Framework

o 2. Agreement in principal

o 3. Final agreements

Process slowed down because of definition conflicts etc.

o Government tries to conclude agreements within 3 years

o Native peoples disagree because there is not defensible to

reason to conclude negotiations

o Very one-sided power agreement

Current treaties

o More about land issues that other issues right now

o Govt sees them as keeping an ongoing relationship with

indigenous peoples

o Treaties are legal, but probably not fair

←← USA

Shift from cooperation to conquest

o Indian wars – treaties of peace

o Cession treaties – access to resources etc, land

Unique

o Tribal nations given sense of sovereignty not seen elsewhere,

immune from state legislation, given own judiciary, police,

education

Still subordinate to federal government

Still built around the idea that goal was assimilation

o Feds reserve the right to dissolve the treaty, terminate the

existence of the nation and the tribe if the government

decides that they are “assimilated enough”

Treaties follow and east to west pattern

o 1871 – decision to have no more new treaties

US govt and Native groups have very different perspective on the

treaties

o Govt: supposed to be one step in the assimilation process,

and now that they are old, considered out of date, and have

few qualms about circumventing

o Tries: govern all aspects about relations with government,

and so are very concrete, current and relevant

Black Hills Claims

o S. Dakota & Wyoming

1979 US courts ruled that act seizing land violated 5th

amendment and rewarded lost of money

didn’t accept because they thought that meant that

they would be selling there lad

1982 – new case filed, saying they wanted the land

back, because the government has admitted that they

took it illegally

Fundamental difference in how to resolve these

situations

o Lawyers were granted 10% of money, but Tribal council said

no, because they don’t represent our interests

Enforcement of agreements

o No neutral third party enforcer

All colonial institutions, thus biased to their perspectives

Unequal power relationship

o Agreements are only effective if they are enforced

Treaty process will be one-sided and messy

Not all tribes are covered by treaty process, so some groups are

then classified as non-existent and assimilated into culture, so have

no rights, even if they exist in fact, but not in historical

documentation

Supreme Court

o Where treaty disputes are resolved, handled, thus one sided

o 1830s – Domestic Dependent Nations (Marshall Court)

Recognized some measure of internal sovereignty –

term used

Domesticated every single tribe under federal

sovereignty umbrella

Unique in USA recognition of sovereignty

Unresolved issue of HOW MUCH sovereignty tribal nations have

← Pastoral Leasing Talking Points

Pastoral leases

o Large tracts of lands owned by the crown and leased for

extended periods of time to ranchers to be used mainly for

grazing, in exchange for rent

o Preserved the Crown’s prescence in remote frontier areas

Kept land from passing into control of individuals who

could set up as “shepard kings” in their own fiefdoms

After 1850

o All pastoral leases had to include a reservation that would

provide Aboriginals with basic right to entre at all times to

seek subsistence

As long as the areas weren’t enclosed and improved

upon

Hope to keep frontier violence to a minimum

1996 High Court Wik decision

o concluded that native title had never been extinguished on

pastoral lease land

o example of how 19th century Colonial Office policy may be

affecting 21st century land claims disputes

o native title continues to co-exist alongside lease rights on

pastoral leases

Future implications

o Uncertain of the legal concequences and practical

implications of the Wik decision

o 40% of Australia is covered by pastoral leases

o Important and pertinent issue as all the pastoral leases in the

state of Western Australia expire in 2015

Mistahi Muskwa – Treaty 6 Canadian Plains 9/8/11 9:39 AM

← Understanding Nehiyaw Political Organization

Difficulty in comparing European and Indigenous political bodies

worked

o Indigenous groups don’t have the same idea of sovereign

entity who speaks for everyone

Group continues to live a nomadic hunting lifestyle, relatively

independent of the Canadian state

← Research Question

What can we learn about the governance of contemporary Band

Council by looking at how Plains Cree peopl practive governance

directly before movement on to reservces

o Focused on Band led by Mistahi Muskwa (Big Bear)

← Power

Ability of people to affect the decisions and actions of others,

relational terms, shouldn’t be always associated with the negative

← Authority

The designation to make decision on behalf of an organization or

group – categorical, you either have it or your don’t

Legitmiacy

Discussion on Briefing Packet 9/8/11 9:39 AM

← 8 pages of text, add in necessary visuals that are relevant

← How to ensure that your packets work together

Paper must be turned in 3 ways: hard copy to class, emailed copy

as a PDF, TurnItIn

Governments can touch on a number of issues, but ensure that you

are approaching it from the government points of view. Write the

entire report (including history) as a representative of that

government

← Less of a template, more do what makes sense

Intro

History of colonization

3 issues – explain why this issues are important, can argue that

certain issues are important overtop of other actual legitimate

issues – why poverty trumps other concerns of human rights etc.

Recommendations

Conclusion

←← Sweden

Executive Summary

Table of content

History of the ......

o Who are the .....

o Colonial period

Modern issues.....

o On going battle

o Current issues and solutions

o Future

Works Cited

← Bangladesh: Responding to criticism, history of why these are issues,

what’s happened, and what the government intends to go

Overview

Introduction

Land Rights

Human Rights

Government Response to International Criticism

Summary

← Canada

Executive Status

Current Status

Historical context

Current Issues

Recommendations

← Japan

Introduction

Hisotrical Context – a few paragraphs

Indigenous Issues – bult of report

Government Position on how to resolve issues

And or government defence on current policies

Indigenous Resistance to Colonialism 9/8/11 9:39 AM

← Violent

Zapatistas

← Non-Violent

Global Indigenous Movement

Politics of Shame

←← Zapatistas

Mexican Government policy of land redistribution ended with NAFTA

First post-modern revolution:

o Hot conflict, but not for very long, because there was only

fighting for one day, not to overthrow the government, but to

be heard

Used websites - which was VERY new technology at the

time

Used global communications and technology to drawn

international attention

Encuentro

Gathering between idealists, indigenous rights

activists, left-wing activists, lost of non-indigenous

peoples went down there

Important, because it was an issue about

particular land rights in Chiapas, but went

much larger than that to get focus on the

area

Became about politics beyond guns

How did they show solidarity

o Language issues

Tactical Media – fairly new at the time

o Protection: international eyes

Lesson learned to be very careful, because violence

often escalates once the cameras leave

o Global message/Marie-Claire effect

Imagery

o Sound Bites

o Information politics/framing

Not reliant on government to get message across, able

to set the message and the facts

o Strategy

Choice of what information gets put out, and the only

message that gets put out is what the media is provided

with

o Symbolic politics

Linking their movement to history of Mexico, framed as

natural continuation of Mexican society

o Presumption that the state will have the upper hand in media

etc, so less about balanced coverage by individual sources,

but a balance media picture across the entire spectrum

Has been a hot war at times, and a war of ideas

o Usually goes hot when the feeling that there needs to be

more attention

Layered complexities of the insurgency

←← Non-Violent Politics of Resistance

Transnational Advocacy Networks (Keck and Sikkink 1998)

o Networks of non-state actors working internationally on an

issue, who are bound together by shared values, a common

discourse, and dense exchanges of information and services

Key: networks and non-state actors (NGOs, indigenous

nations, churches)

Common discourse –what is it, how did it develop when

such a large, varied, scattered group

Dense exchanges of information and services have

exploded recently through increased global

communication

o Multiply channels of access to international systems

More routes to access states, not just domestically, but

from other, including international directions

Multiplies power

o Goal: change the behaviour of states and international

organizations

o Boomerang Pattern

Transnational Advocacy Networks (TANs)

o Frame issues

How to frame a local issues so that it resonates with

other actors on a global scale?

o New ideas, norms and discourses

How do you connect something new to something

already agreed upon by the international community?

o Information and testimony

What sort of information, testimony do you disseminate

o Norm implementation

How do you start an international movement to put

pressure on a nation that doesn’t really want to change

its position

o Major actors include: NGOs, foundations, media, churches,

trade unions, consumer organizations, intellectuals etc.

Who supports this campaign, where does the money

come from?

What types of media?

o Ability to do all these things will determine how successful the

movement is able to be.

Indigenous Resistance as a TAN (Politics of Shame)

o International Level

Collective vs. individual rights

Brand new, had been attempted during cold war

unsuccessfully

Meaning of self-determination (independent nation-

states)

Shift away from nation-states as the central

understanding of the international system

Decolonization exclusion

o Domestic Level

Legal systems of states either inadequate or

inappropriate for redress

Use of human rights law and principles from the

international level to get domestic implementation

Where to boomerang model comes into play

Existing Human Rights Framework

o Universal Declaration of Human Rights (1948)

o Declaration on the Elimination of All Forms of Racial

Discrimination (1963) – Convention (1965)

o -------------------------------------------------------------------

o International Convention on Economic, Social and Cultural

Rights (1966)

o International Convention of Civil and Political Rights (1966)

o Youtube video: teaming up with another movement

(environmental movement) and going to the UN to make their

case

Organizational Beginings

UN Declaration on the Rights of Indigenous Peoples9/8/11 9:39 AM

← UN Working Group on Indigenous Populations

Drafted the UNDRIP

Established in 1982, Geneva to draft UNDRIP

Countries and indigenous organizations met

Open participation by indigenous peoples

o Participation by indigenous peoples was open, if you could get

there, you could participate

o Dynamics have changed now that in New York, visas, 9/11

etc.

Purposes

o 1. Information gathering

o 2. International standard setting

Draft Declaration on the Rights of Indigenous People

(1994)

Similar but no identical to the final draft

← Remember that the document is 100% compromise

← 1994-1997 the draft declaration negotiated

Doesn’t pass the UN General Assembly until 13 September 2007

← DRIP

Bare minimum international standard of indigenous peoples’ rights

o Some states view as a goal to reach for

o By drafters, looked at as the floor

Morally binding, but not legally binding

o Not hard law (treaties, conventions) with a compliance

mechanism, and the security council can act on it

o Soft Law – not legally binding in an international legal sense,

but are morally and politically on the whole world whether

signed on or not.

Global consensus on indigenous rights

o Then should guide how states and indigenous peoples should

relate to each other

Individual and collective rights

Land rights, self-determination rights

o Important because there are certain states that are

threatened by the implications of this component

o What does self-determination mean? Now different from just

territorial sovereignty

Document of compromise – each article and as a whole

o Negotiated from 1982 until the last weekend in 2007

← Changes made:

Enhance state sovereignty, concerns about what does fair

compensation/redress mean. USA, Can etc. couldn’t politically come

forward and speak against a HR document, so asked Africa to do so

on their behalf, as Africa was also not in favour, but could also

support the concerns.

←← Les Melezer, Chairperson of the Global Indigenous Caucus

The declaration on the rights of indigenous peoples constrains no

new provisions of human rights. It affirms many rights already

contained in international human rights treaties, but rights that

have been denied to the Indigenous Peoples

Prof: agree mostly except for the introduction of group rights

←← What UNDRIP does do

Emphasizes the right to maintain and strengthen cultures, traditions

and institutions

Prohibits discrimination

Asserts collective rights of Indigenous peoples to remain distinct

form their surrounding societies, pursue own visions of

development, promote full and effective participation in decision-

making processes on issues that may affect them

← Voting Record

143 votes in favor

11 abstentions:

o Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia,

Kenya, Nigeria, Russia, Samoa, Ukraine

36 absent:

o Chad, ivory cost, equatorial guinea, Eritrea, Ethiopia, Fiji,

Gambia, Grenada, Guinea-Bissau, Israel

4 againts

o Canada, United States of America, New Zealand, Australia

o Aka CANZA’s group

Prior to Stephen Harper, Canada was supportive of and a leader in

negotiations of the declaration

←← Canada’s Objection

Lack of inclusiveness and transparency in process

o Open to all since 1982

Does not reflect current state practice or current obligations under

international law

o Yeah, that’s the point

Not legally binding

o Esp. because they didn’t vote for it

Commitment to indigenous rights through existing international

mechanisms and its domestic constitutional guarantees

o Looks at all other human rights documents they take part of

No objection to collective rights

Land rights would be incompatible with parliamentary system

Will continue to rely on domestic legal instruments

o Because didn’t vote for it, self-exempting

First time Canada ever failed to support an international human

rights document

← USA’s Position

Lack of transparency

Text is confusing, fundamentally flawed

Objects to self-determination, land and resources rights, redress

Opposed to collective rights

Rely on domestic law

← New Zealand

Does not reflect current state practice

Fully supports principles and aspirations – aspirations key word

again

Text is discriminatory and incompatible with democracy

Land rights

o Unworkable as could encapsulate entire country

Inequality

Redress unworkable

Not legally binding

← Australia

Sef-determination (impairs territorial and political integrity)

Land rights

Inequality

o Sets up indigenous Australians with different rights than

everybody else

Notion law applies

Places indigenous customary law in superior position to national law

Not legally binding

←← Australia Changes Position

April 2009

Incoming Rudd government announced change of position to

“support”

But...

o Document is aspirational

o Non-binding

Does not affect existing Australian law

←← New Zealand Changes Position

April 2010 – after a shift in government

Opening ceremony UNPFII

Minister of Maori Affairs, Dr. Pita Sharples (Maori Party in coalition

with National Party)

o youtube

But...

o Declaration is aspirational

o Not legally binding

←← Canada Changes Position

March 2010: speech from the thone, move towards endorcement

(thinking about thinking about), but would be in a framework totally

consistent with Canada’s laws

Novermber 2010: Canada will be formally endorcing the declaration

in a manner fully consistent with Canada’s Constitution and laws

o Not legally lbinding

o Aspirational

No public ceremony

No change in goverment (unlike in Australia and NZ)

←← USA Changes Position

April 2010: Following NZ announcement , USA announces a

reconsideration, tribal consultation process

December 2010: Obama announces US is “lending support” in

remarks to the White House Tribal Nations Conference

o Youtube

Follow-up statement released by the White House later that day (16

page document) explaining why document is aspirational, non-

binding and wouldn’t change US domestic law in any way

←← Lightfoot (2012) International Journal of Human Rights

Selective Endorsement

o 1. Removes concerns over process legitimacy

transparency concern

o 2. Underscore normative importance of the rights while also

qualifying their status

o 3. Strategically, collectively and unilaterally attempted to

write down the norms so that they align with current policies

and practices

Thus, the states assert compliance with the rights norms without

having to change domestic laws and practices

← 1981 Geneva Conference – more global

1. Idea of secession taken off the table ,pragmatic choice

2. Using international system

← 1977 Geneva

1. Western/ Global – IITC, WITC

2. Term indigenous comes form this , idea of self-determination

o declaration of principles

9/8/11 9:39 AM

← International Law most applicatble to internationl struggle

- UN Charter – friendly development of relations between nations

and peoples

Peoples – s selfdetermination, vs. population or issues at DRIP

←← Beginging of DRIP

1. Standing rock south dakota – IITC

2.WCIP – 1975, shared history of global issues

←←← Transnational Advocacy Network

Collective and individual rights and self determination, shift in

understanding of what self-determination, collective rights

Domestic, many state legal systesm are inadequate

o Need hums rights to have state implementation

←← 1)Constructive Engagement

1. Content – emphasis on equity, inclusiveness, here for the long all,

every one has legit claims

2. Negotiation

← Indigenouspeople sovereign by vitrue of being there first, and never

gave it up, repairing relations, people with rights, not minorities with

problems

-taking indigeneity seriously

power sharing, rethinking citizenship

new rules of agreement and reconiliation

dialgoue

←← Obvious Biases in constructive engagement – validity of existing state,

irights with crown not other way, politicization

States: biases – need based vs rights based, jr not equal partner,

conformity, universal citizenship, ethnic of miinoiryt v IP

← Realities – politics gets in teh way, states really enjoys it power to

establish agendda, fear of national unity threat to, constitutuional change,

globalization and profit engagement.

←←← Treaty – restitution based treaty (comprehensive land claim, treaty)

Goverment offers compensation and control in exchange for full and

final settlement, no more opportunities for renegotiation at a future

date.

← Interpersonal, social, government and intrinsic proposittions of

recognition (NEED ALLL)

Interpersonal: encounters free of racism, understanding, empathy,

inclusiveness

Social: inclusive social policies

Governments rediristribution of powers b/t elecetd and non-elected

Intrsinsitc; recongiton of sovg and self-d rights

←← Reconsiliaton from IP

Rgth wrongs

New partnerships

Full = participation in

Work throught differences

Respect indineity

←← Difffernt perceptions of colonialism

Anger bsesd on past dispossession

Guilt on settler behalf

Proud of colonizatoin, no point on dwelling in the past

←← Reconciliation – politics of

1. Attonment – righting of historical wrongs

2. Renewal

sorry, practical, land rights, restoring as institutional partners

←←← Comprehensive Land Claims

Exchange of rights, resources of and obligations

Extinguish aboriginal title in exchange for various land rights,

comanagments, payouts, self management

1. Problems:

o politics of partnership )0 sum game

o adviersarial w/ state

o rivaly in comeptition for resources

o contractural reliance – litigation as problem solver

o reliance on past and rhetoric

o aspirations within Eurocentrcic framework

o issues as an end vs. a struggle

2. Negatives

o adminstrative quick fix

o conducive to partnership?

o Recipe for conflict btween competeing claims

3. Benefits

o identity building

o resource mobilization

← Waitangi

Not any formal implication now

Treaty esttlement focues, compensation of

Different languages

DRIP – resasons for refusal

←← Constiutional Approach v. Indigenous Approach

Engagment v entitlement

Relationship v. rights

Interdependence v. oppostion

Cooperation v. competition

Reconcilation v. resitution

Power sharing v. power confict

←← Ongoing issues

Crown resistant to foundational changes

Sever colonial bonds

Frames on colonial discourse with a more human face

o Viewed as a problem peeople

o Indigeneity no t taken srious

o Contsitutionl appraoch still persists

←← Shifts in Indigenous Affairs

1. Promote I driven capacity v. state programs, with not for, effort to

improve economic development

←← Approach to improve indigenous politcs

Increaesd indigenization of policies

Restiutionall settlement

Statutory amendments

Develiution fo power

Decentralized services

Lmited self government arrangements

←←← Why is indigenous lobbying when exported

Western Europe: few concerns have local residents, not threats to

own jobs/secutiry.

o Cree to Europe to international meeting, canoe to

amerstadamm, increasing awareness

o Evironmentalism as a facade

Jury raised attention to surpirse of inconsistency of

human right

←← International organization most important driver for change

← - add/remove credibility

← Politics shame

Creative way the UNHRF does politics, public denunciations,

attention of protest, can sometimes bring a reluctant government to

the table, sometimes an agreement can result

BAD: must meet public expectation to qualify for help (wise,

environmental etc), end up adopting core values of western state to

have an effect, must focus on issues where majority will agree to, as

the more central ones will have already. Compassion fatigue,

ordinary when compared to genocide

States of maximum level of recognition, soft rights, cultural

diversity, when you reach that point, no more

Contrastic deffinition fo self-determination (land, injustice, language

etc?)

Requires development of instutions that are moden,

←←← UN Working Group – Value

Meet annually

Connection between UN and IP

Broad topic

Self defined attendance, international attention

No states

← Host of annual forum in Geneva, new models of self determination,

bring about UN ratification to establish interantional standards for protection

to rights, became the permanent forum in either 2000 or 2002

←← States in favour of v. states opposed africa

←← Main features of indigenous global politcs

Grounded in indigenous cultural practives, traditon style and

decision making

Open indigenous participation, tool for justice, incraeses in scope

and clarity of over;

←← Positive DRIP

Big step forward

Collective rights are new

Take and a whole and more

Article right to, right of aspiration v inherent, night before, article

too

←

← Drip

Reights to maintian culture

No discrim

Collective rights

←← Georgraphy and Political Issolation

If technology -> more interction

← Global level – wider audience and support and new stratgies, don’t like

looking bad. Local leve – admin inconvenie, less support

←← Written Law to express self-determination

Reconsituting sovg in ways understanding

No experience of communal memory in western legal art, how to

make the state

←← Types of self-determination

Non discrim

Cultural iteg

Control over land

Social welfare

UN – political statu, control of resources, sustinance, cultural

development

←← Important Points of Agreement btwn states and ip

Qwill to establish forum

High in UN, EOSC

Reveals: UN largely controled by states

←← UNPFII

1. Centrepiece of decade of interpal people

o a. states would appoint reps, rejected

o b. more experience in intl politics, so they should trust their

formula

o reference to the charter of the UN – didn’t know if they

wanted to mention is, forced to, wasn’t binding

← Challenges state sovg

International - reforms in intl law

Pluralistic forces within the states, nations within natios

← Written law

New chances to use written law to their benefit

←←← Geogrge Manual – shuswap leader in BC, ground work in 1970s for

globlization, threat

←← Hall, Anthony. – Reconliliation in Aus & Zapatista movement

Reconciliaton is now a nation-class-wide thing

o Auss: terra nulia, white supremicits, Mabo & Wick,movemet to

reshape

o Zap: local located, globally orientaed, trans

← Niger – Agoni activitst, against evironmental desicration. Clearest

examples of abo group on cutting edge of protest v. globalizatoin. Silenved

by government, critique of shell, government tried to treat problem as

domestic much international attention

←

← IP v. Ngo. Ip dont’ have consultative status, only 20 w/ consultative

status, rep nations.

←← 5% of world’s population, 80% of world’s cultural diversity, 20% of land

surfface, 80% of world’s biodiversity, 70+ nation states.

←← Stavehagen deffinition of indigie

Chronology not as important

Type of unjust relationship

←← Peoples: group who have an objectively distinct indentity and

subjectively perceive themselves as differnt. Problme is matter of

perspective and degree.

←

← TANS:

Networkds of non state actors (NGOS, inna, curhc) workin intl on an

issue who are boudn together by shared value, common discourse,

dense exchanges of information

o Coming at teh state from multiplie directions, not just below,

mutltiple channels access, goals to chang state behvious

Actors: NGO, foudations, meida, churrch, unions, intellectuals,

consumer organizaton

Boomerang pattens

o Not working through domestic pattersn

Importance of framing.

o Frame local issues so that they resonate globally

o Connect the new with the norms

o What kind of information you let out – Zapatistas

Tactical media

o

←←

← Only live when in use, 46 articles, almost all individual rights, took 30

years to wrtie.

←← Negotiation of nation to nation relationship at inernational level, less

1. Conquest – beat teh other person, end of the war (peac)

2. Sale/Cession – money, rent

3. Coexistance – determine how to coexist – 49th parallel

4. Sharing – overlap

Talk about comprehensive landtreaties

←← Are treaties cross cultural negotiaton. Colonialism.

Process, treaty used to exercise nationhood, exchange, consent

←← British Law of precent – only way that settlers can occupy land

←← Chitagong Hilltracts – Bangladesh

Causes of conflict: autonomous state under autonomous rule, given

to pakistan, dams forced relocation, identiy crisis forced to

assimilate, imposed national identity, asiimilation policies, military

as conflict resolution, human rights violations, minority in own lnd

o Peace accord signed, but never implemented

1. Treated at national issues.

←

9/8/11 9:39 AM

←