Lighting A Candle or Exploding Bombs for Humanity?
Ethnic Cleansing and Genocide in
North America and Kosovo:
by Dr. Anthony J. Hall
Associate Chair, Department of Native American Studies
University of Lethbridge
(as of 5pm Mountain Time, 23 April, 1999)
I
Connecting the Events, Ideas and Personalities
What is to be said of the irony of bringing in Apache helicopters, or
tomahawk cruise missiles to rain down NATO’s bombs of fury on the
Milosevic regime in Yugoslavia? The unself-conscious ease with which
the United States and its NATO allies use the names and symbols of
Indigenous North American peoples to describe the weaponry in their
arsenal, surely speaks to the paradoxes of this
bring-in-the-new-millenium war.
Where George Bush christened his UN-sanctioned attack on Iraq in 1991 as
the initiating event of a New World Order, it seems this holy jihad was
only a prelude to the far more complex and formative conflict to come.
Once again, the Balkans are at the the centre a conflagration that
tenaciously defies all efforts to contain its sweeping global
ramifications. As every national government on the planet, including
Russia and China, quickly staked out vital geopolitical turf on the
conflict, NATO’s strike on Yugoslavia very quickly established what has
become for all intents and purposes a virtual World War IV, if we take
take the so-called Cold War as what was, in retrospect, World War III.
Like World War I and II, World War IV has its origins in yet another
renewal of Europe’s old genocidal hostilities within itself. The rapid
realignment we are witnessing in global geopolitics is bringing to the
surface many of the most fundamental forces in the human condition whose
real dynamics remained hidden throughout most of the Cold War-era and
the uncertain decade which followed it. As NATO daily blasts away at
what remains of Yugoslavia, it also blasts away at the last vestiges of
the fiction that nation states are sovereign within their own
boundaries. No one in charge of this war, however, seems willing to
take responsibility for articulating its full juridical and ideological
significance as an event that formalizes the end of the era of national
sovereignty as we have known it; nor have any of the public relations
consultants who effectively run governments in this era of telegenic
heads of state, offered a clear vision of the alternatives we have to
choose from in the months and years ahead.
There is no saying at this point, therefore, if the international shifts
triggered by the most recent explosion of the Balkan powderkeg are
leading to global anarchy, to a global police state or to some new
paradigm of global geopolitics that presents a viable alternative to the
nation state as the fundamental unit of legal authority and
self-determination. Accordingly, if we are to prevent this war from
spinning totally out of control and pushing aside what remains of the
fragile and tenuous pillars of the rule of law in the global community,
we need quickly to clarify the nature of the unit of decision making
that will replace many of the functions previously performed by the
nation state
The principle of peoplehood seems best poised to replace the reign of
nationalism, whose genocidal proclivities have once again been
demonstrated in a flareup whose brutal complexities are too easily
papered over by the crude demonization of the Serbians. Only by
emphasizing the self-determination of peoples as a higher ideal than
the sovereignty of nation states, can NATO bring its actions more in
line with its rhetoric. This emphasis on the self-determination of
peoples, a polity with roots far deeper than nation states, was first
emphasized by American President Woodrow Wilson in 1918 as a way to move
beyond the clash of imperialisms that characterized World War I.
After World War II the principle of the central juridical importance of
peoples was entrenched in the founding constitution of the United
Nations. In the preamble to the world body’s founding charter, “WE THE
PEOPLES OF THE UNITED NATIONS” outline an agenda to protect the
“dignity” and equal worth “of nations large and small.” Another American
president played an instrumental role in advancing the proposal to move
the world from a framework of nation states based on the theoretical
sovereignties of “we the people,” towards a global regime still light
years away from the ideal of a planetary rule of law based on the
authority of “we the peoples.” That leader was Dwight D. Eisenhower. In
1960 he ended his presidency by warning of the impending tyranny of what
he called the military-industrial complex. The vision he proposed to
pre-empt a global police state was some sort of global confederacy of
equal peoples - “a confederacy of mutual trust and respect.”
As the War in the Balkans expands its magnetic field to suck almost
every factor of global geopolitics toward its vortex, commentators reach
for suitable points of reference in history to explain the conflict. To
my way of thinking the very fundamental character of the moral
principles at the core of this battle necessitate that we situate this
tragedy in a very broad context. The end of the Cold War, or even the
legacies of World Wars I and II, hold only very limited parts of the
explanation of what is taking place. To me, rather, it is the symbolism
of the date 1492 that best puts in perspective the true nature of the
crimes againt humanity that the NATO powers will have to address as we
strive for some new vision of international law capable of securing
peoples their lands, their identities and their lives from the kind of
brutalities we have seen in Kosovo and elsewhere in the Balkans.
How different is the complex web of crimes against humanity in the
Balkans from the fate visited on, for instance, the real Apaches whose
spirited resistance to the armies of their conquerors is now
commemorated in the name of one of the United States’ most lethal
fighting machines? How can we avoid noticing the bold hypocracy of NATO
as its flexes its military muscle powers in the name of its alleged
aversion to genocide and ethnic cleansing, while its governors
studiously evade questions of complicity in this same genre of
international crime that is so integral to shaping the character of the
western part of the North Atlantic world?
Many of these central issues of global geopolitics found surprisingly
clear and succinct expression in the circumstances surrounding a
carefully stage managed professional assault on one of this continent’s
most insistent witnesses to the reality that North America is no
stranger to the crime of ethnic cleansing. Early in April of 1999, just
as NATO’s war planes screamed into Yugoslavia, the Law Society of Upper
Canada, the association representing Ontario’s lawyers, elected to
disbar Dr. Bruce Clark. Shortly following this pre-emptive attack,
meant in my view to prevent Dr. Clark’s controversial theory from making
its way into the procedural mechanisms of Canada’s courts, the law
society’s professional assassination was followed up by a crude
journalistic effort to keep the lid on a profoundly significant legal
theory. If Dr Clark’s legal hypothesis was to be given a genuine,
sympathetic hearing in a appropriate judicial venue, I believe it might
very well blow the lid off the most basic assumptions underlying NATO’s
new self-declared role as the world’s global enforcer of international
prohibitions against ethnic cleansing.
Along with Doug Saunders, Thomas Berger Tony Mandamin and several
others, Clark was prominent among those talented Canadians who helped
bring about in the late 1960s and early 1970s a major re-opening of
North America’s oldest and most complex area of law. Unlike many of his
contemporaries, however, most of whom settled into comfortable and
lucrative careers exploiting their expertise in one of the legal
profession’s biggest growth fields, Clark found himself increasingly at
odds with his colleagues.
The acrimonies tended to develop as Clark was drawn more and more to
study the criminal ramifications of what he increasingly saw as
generation upon generation of stealing land from the Indians in clear
violation of the imperial laws which remain entrenched in Canada’s
constitutional foundations until this day. The remedies for this alleged
theft, Clark came increasingly to believe, belonged more in
international law than domestic law.
Moreover, given the genocidal consequences of these recurring patterns
of dispossession, displacement and sometimes the outright killing of the
Indians of North America, Dr. Clark looked increasingly to
war-crimes-type tribunals as the appropriate form of court to deal with
what has happened, and, by some accounts, what still continues to
happen, to some Native Americans in less blatent, but no-less-lethal
ways. It is thus that Dr. Clark arrived at his elaborate and very
unsettling legal theory alleging “treason, fraud and complicity in
genocide” on the part of the so-called “legal establishment,” for their
very instrumental role in pronouncing on what will or will not be
permitted in imposing the laws, jurisdictions and economies of the
newcomers on the Indigenous peoples of North America.
At first glance, then, there might seem to be little connection between
NATO’s war on ethnic cleansing in the Balkans and the disbarring of a
lawyer in Ontario Canada. Indeed, news of the Law’s Society’s strike on
Bruce Clark’s professional reputation was presented like a small
footnote to history-- a kind of wierd curiosity of the modern-day Indian
wars that was to have put the last nail in the coffin of a man painted
as a colourful, but fatally misguided zealot. As Paul McKay wrote of
Clark in The Ottawa Citizen (4 April, 1999) in his gloating announcement
of the outcome, “an obsessive, in-your-face messenger with a taste for
martyrdom... has used up his ninth legal life.... The ruling
effectively kills the Canadian courtroom career of the only lawyer on
the planet to combine a banker’s suit, Ph.D., conehead haircut, Star
Wars glasses, and self-penned writs to arrest judges hearing his cases.”
Permission to ridicule Dr. Clark’s clothing, eye wear, shaved head and,
if any column space is left, his legal theories as well, came right from
the very top. “You are a disgrace to the bar,” Canada’s Chief Justice,
Antonio Lamar, told Clark in a heated courtroom exchange in 1995. Since
then the professional crucifixion has proceeded methodically, with minor
obstacles along the way such as when Law Society governor, Clayton Ruby,
dropped a little bomb shell. In a report emanating from the law body’s
disciplinary proceedings, Mr. Ruby declared that “the genocide of which
Dr. Clark speaks is real.”
Apparently, however, Ruby’s cautionary plea was not enough to sway the
Law Society. Its officers gave their coneheaded, Ph.D. colleague with
the Star Wars glasses and a penchant for upsetting polite company too
often with the word “genocide,” the martyrdom he allegedly so lusts
after. And now that the Law Society inquisitors have exorcised their
former colleague, the Southam chain, by far the largest newspaper
conglomerate in Canada, seems to have taken the lead in continuing the
ritual slaughtering of the messenger of North America’s most
uncomfortable message. The Citizen chose to run Mr. McKay’s
McCarthyesque professional obituary not as an opinion piece, but rather
as a news story that has been picked up by many other information
services, including Reuters.
On the face of it, words like genocide, treason and fraud do sound
excessive, to say the least, when referring to the joint role of police,
lawyers, judges and jail guards in applying the laws of Canada, as well
as those of the United States, to Indigenous peoples. After all, if
there’s supposed to be genocide in North America, where are the ovens
and the concentration camps? Where are the wave after wave of refugees
fleeing from their homes in the fashion of the terrible pictures we have
been witnessing, as the regime of Slobodan Misolevic “cleanses” what his
government calls the “soul of Serbia” of its Kosovar Albanian
population. Where are the Guatemala style, para-military death squads
that killed and thus dispossessed tens of thousands of Mayan Indians
under the guise of anti-communism. In remarking on this very fresh
instance of North American genocidal campaign, undertaken with the full
backing and support of the government of the USA in the 1980’s, Eduardo
Galeano recently commented that this massacre “produced one hundred
times more dead than in Kosovo, and twice the number of displaced
persons.”
Now let’s pull the zoom lense of historical conceptualization back
further to reveal the inescapable reality that Canada and especially the
United States could not exist in their present form if it wasn’t for the
harshly successful application of some of the most expansive, methodical
and enduring operations of ethnic cleansing the world has ever seen.
All the North Atlantic Treaty Organization countries in western Europe
have participated actively in the formative phases of ethnic cleansing
in North America. This transformation of a vast, pluralistic Indian
Country into a Europeanized adjunct of so-called western civilization,
was realized not only through outright killing or displacing Indigenous
North American peoples, but also in subjecting their Aboriginal
territories to alien laws, alien economies, and alien languages..
The transformation of Indigenous languages into alien languages in
Canada and the United States serves to illustrate the totalitaruian
intensity of the legacy of ethnic cleansing in North America. The
European languages so dominate, that only French and English have
official status in Canada whereas the languages and dialects of many
dozens of imperilled Indigenous groups have no official legal status
whatsoever. In the officially monocultural melting pot of the United
States, only English has official status. Until well into the 1970s,
the Canadian government paid the major Christian churches in Canada to
conspire actively in the coercive silencing of these Aboriginal
languages and preventing Indian children from honouring the Great Spirit
in the way of their ancestors.
The history of these Indian residential schools, which existed in the
United States but were forced on Indian Country with a singular
intensity in Canada, illustrate the very clear existence of government
laws, policies and institutions that generated outcomes which clearly
lie within the United Nations Convention on Genocide, which was first
ratified in 1948 but was not adopted by the USA until 40 years later.
Article 2(e) of the Convention defines genocide to include “forcibly
transferring children of the group to another group.” That is precisely
what the Indian residential schools did, the receiving group being the
Christian churches that ran these organizations.
Moreover, given the high rate of physical and sexual abuse which took
place in these institutions, and the fact that the whole purpose of
these Christian institutions was to teach Indian children to despise and
renounce their own Abriginal heritages of language and religion, they
easily meet definition 2(b). That provision refers to “causing serious
bodily or mental harm to members of the group.” Section 2(c) is also
applicable. It defines genocide as “deliberately inflicting on the
group conditions of life calculated to bring about physical destruction
in whole or in part.”
The legal proceedings presently underway in Canada vividly illustrate
how the issue is being divorced from its true context as a crime that
easily fulfills the UN’s definition of genocide. After denying for
decades that it had any responsibility whatsoever for what happened in
the Chritian residential schools it sponsored and oversaw, in 1997 the
Minister of Indian Affairs Jane Stewart finally apologized, but only to
those former students who have been raped or physically abused. To this
day the Canadian government has not addressed the issue of the
psychological abuse that was integral to a education system whose very
purpose was to alienate children from their own cultural background in
the name of what was called at the time, a “civilizing” policy.
The Genocide Convention also details that people are guilty of genocide
not only if they are directly involved in doing it themselves. The
Convention also makes it a crime for those people who know about
genocide, but who actively deny it exists, or merely keep silent and do
nothing about it. That crime is descibed in section 3(e) of the
Convention as “complicity in genocide.”
>From Dr. Clark’s perspective there are many forces which perpetuate
genocide, the largest one being a persistent pattern of theft of
Aboriginal lands and resources that violates even the newcomers’ own
laws. The record, he would argue, is quite clear that this theft and
extinguishment of Indian Country is never criminalized in the domestic
courts of Canada and the USA. Who has ever been charged, let alone
convicted, let alone incarcerated, for violating what is described in
the constitution of Canada as an”existing Aboriginal and treaty right?
The contemporary modes of human destruction may be expressed among
Indigenous peoples in all sorts of internalized ways, including in high
rates of suicide, drug and alcohol abuse, and domestic conflict, all
phenomena that can easily be connected, for instance, to the abuses that
characterized the operation of the Indian residential schools. And the
most culpable agency of all in maintaining the conditions of genocide
are, in Dr. Clark’s judgment and experience, the courts, which regularly
sanction continuing procedures to extinguish Aboriginal rights and
titles to the lands and resources of North America.
Thus Dr. Clark’s whole career, at least since he left in the early 1970s
his successful practice in general law in Haileybury Ontario, can be
interpreted as an effort not to be complicit in genocide, which in his
view is genuinely perpetuated by the legal establishment. For Dr. Clark
not to express to the judiciary his conviction that genocide permeates
the way the laws have been interpreted and enforced in North America,
would not only violate his personal conscience. It would also make him
complicit in the crime of genocide as defined by the United Nations
Convention.
II
Ethnic Cleansing as a Persistent Theme
in North American History
The boarding schools were but one small part of the dehumanizing
indignities heaped upon the survivors of what David Stannard has called
in his book of the same name, The American Holocaust. In both Canada
and the USA the survivors were almost universally rendered as wards of
the state without the capacity to vote, to make contracts, or to
participate in the very limited and imperfect democracies beyond the
boundaries of their constrained “reserves.”
In Canada, one of the British empire’s so-called “White Dominions,”
registered Indians often needed government passes to leave their home
communities, an innovation that authentically was replicated in South
Africa. In South Africa, which also identified itself as a White
Dominion, the country’s so-called Ministry of Native Affairs long
maintained a close and intimate bureaucratic collaboration with the
Department of Indian Affairs in our own country. What else is a
“reserve,” which in the provinces of Canada cover less than one per cent
of the total land mass, than monuments to, and effective facilitators
of, the ethnic cleansing that constitutes the essential geopolitical
framework within which Canada and the USA have developed?
Now these little snippets of history only begin to paint the picture of
the origins and genesis of the society from which Bruce Clark, as well
as you and I, all emerge. This only begins to paint the picture of the
legal background that has created the basis for a large and thriving
“Indian law” industry among the practitioners of the self regulated and
unaccountable Law Society of Upper Canada, as well as of all the other
law societies in Canada and the USA. And hey buddy, if you think these
guys break the law sometimes, take it to the judge.
Let’s try to keep this as succinct as we can. Let’s leave aside all
the horrors of New Spain-- genocidal horrors that became more gross and
pervasive once the Americans took over California, the site of some of
the most gruesome episodes of ethnic cleansing on the face of the earth.
Let’s make short work of the fact that Spain’s infamous conquistadorial
feats are being revisited, if in a more covert way, on Mayan peasants as
the Mexican government duplicates some of the right-wing, para-military
tactics of their Guatemalan neighbours. A principle objective of the
corrupt and notoriously murderous PRI regime in Mexico, is to enforce
the gringos’ North American Free Trade Agreement on territory where an
active Canada and U.S.-backed killing war is being waged on Indian
resisters in Chiapas.
We need to devote more attention to The Trail of Tears, which helps to
put in perspective the tragedy in Kosovo. Moreover, this episode well
illustrates Bruce Clark’s allegations that North American legal
establishments often systematically violate their own laws in the
expropriation of Indian land, right up to this day. In the early
nineteenth century powerful Indian nations, including the Creeks, the
Cherokee and Chickasaw, dug in their heels and constructed elaborate
constitutions and successful agricultural economies to hold onto ground
against the notorious Indian fighters and their politician friends in
the slave-owning states of Georgia, Tennessee, the Carolinas and
Kentucky.
The Cherokee won all their key cases in the Supreme Court of the United
States. But the Indian fighters who ran the federal government, from
the President, “Old Hickory” Andrew Jackson, on down, refused to respect
their country’s own laws, setting a precedent that Bruce Clark and many
other scholars of repute have demonstrated time and time again,
continues, right down to the present day. “Chief Justice John Marshall
made the law,” said Old Hickory referring to the famous federalist judge
who was his enemy. “Let him enforce it.”
So the so-called Five Civilized Tribes--- they must be civilized, some
of them owned Black slaves--- were uprooted from their ancestral lands
and marched to the so-called “Indian Territory” west of the Mississippi
in an act of militarily-enforced ethnic cleansing easily as brutal, or
moreso, than anything being experienced by Kosovar Albanians. The Trail
of Tears in 1837 was just one part of a larger legislated regime of
ethnic cleansing in the USA that declared all registered Indians who
persisted in staying on lands east of east of the Mississippi, to be
illegal aliens-- aliens that frequently were killed by sports murderers
or lynch mobs with impunity.
Meanwhile grand promises were made and entrenched in international
treaties made by the USA that the territories west of the Mississippi
would be retained as a protected Indian Country forever. Without doubt
the Indian removal policy initiated by the regime of President Andrew
Jackson was the most ambitious project of apartheid ever tried on the
planet, before or since. And this apartheid scheme proved to be just a
ploy to purchase time. As soon as the American government had the
military, financial and technological power through their railways to
push their regime of ethnic cleansing outward to the Pacific, they did
so. As in most of their dealings with brown skinned people in their own
country or elsewhere on the planet, the United States choses to
disregard the artifaces of international law in extending its vision of
democracy to the peoples of Europe at the genocidal cost of destroyed or
crippled First Nations.
This apartheid scheme is clearly marked on the map of modern North
America. There are almost no Indian reseves east of the Mississippi
and relatively large reserves, compared to Canada at least, west of the
Mississippi. All the reserves in Canada combined wouldn’t fill half of
the territory encompassed by the Navajo reservation in the American
southwest, in the lands taken through war from Mexico and lands now
being reclaimed by the influx of migrants from Mexico. This influx,
legal and illegal, has raised almost hysterical reaction among many
Americans that their country’s Eurocentric orientation is at risk of
being overwhelmed by a largely Indian, Chicano population. This
hostility towards northward migration into the USA from Central America
can be seen as a fear that the results of the ethnic cleansing that made
the USA into what a Siouian delegation to Canada once called, “the new
White nation,” might be reversed.
The leading proponents of this expansionary movement of American
Manifest Destiny, also coveted the vast Indian Country of Canada. In
the drainage basin of the continent’s northward-flowing rivers, the
Hudson’s Bay Company made profit by doing business with First Nations,
rather than by killing them and incarcerating the survivors on
reserves. How different was American Manifest Destiny than what the
Germans called Lebensraum in their eastern push to subjugate the slavs
and expropriate their lands-- a push leaving legacies and scars that
haunt the Balkans and feed their hatreds and resentments until this day?
How can we focus so-self-righteously on the hideous outcomes of the
injuries done to the psyches of some Slavic people from their past as
victims and perpetrators of racism, without confronting our own legacy
from the war crimes that shaped the countries in which we all live.
What awesome hypocracy! When society become as plagued with amnesia as
this one-- when journalists like Paul McKay can dance so self
confidently on what he sees as the professional corps of a man whose
major crime has been to implore us not to blind our eyes in our own
complicity in the crime of genocide-- then all the ingredients are in
place to repeat the mistakes of the past, perhaps on even a bigger, more
global scale.
Those who doubt the racial rationales of the USA’s westward push-- the
position that ethnic cleansing was justified because the displaced or
murdered peoples were racially and culturally inferior and unworthy of
survival-- need only flip through the pages of the Historian-President’s
multi-volume The Winning of the West. The author, “Rough Rider” Teddy
Roosevelt, publicized himself in the first of many subsequent U.S.
invasions on Cuba. A student of social Darwinist and racist par
excellence Francis Parkman, Roosevelt was anything but an original
thinker. His glorification of the war on Indian Country as a kind of
testing ground for the global conquest of the “Germanic race,” gave
clear articulation to what passed as the orthodox wisdom of his time,
group and place.
To try to pin on Roosevelt the deeply racist cast of American Manifest
Destiny, the most potent ideological vehicle of one of the world’s
pre-eminent campaigns of ethnic cleansing, makes about as much sense as
trying to attribute all the war crimes of Naziism on one little
mustached vegetarian whose master-race fantasies were in no way unique
to Germany in the glory days of European imperialism. In the years
leading up to Naziism’s rise to global prominence, let it be remembered
that Rudyard Kipling poetically implored the leaders of the dawning
American empire, to “Take Up the White Man’s Burden” from the twilight
power of the British empire.
Let it be remembered that in many jurisdictions in North America Native
women and men were subjected to a disproportionately high rate of
involuntary sterilizations until well into the 1970s. As Bruce E.
Johansen documents in the winter, 1998 issue of Cornell University’s
Native Americas, estimates place the number of involuntary
sterilizations on Native American women in the United States somewhere
between 3,500 and 70,000.
In Alberta, a major centre of state-sanctioned eugenics, there has been
no popular push for a thorough public investigation into this province’s
undoubted crime against humanity as formalized by the existence and
application of a draconian Sterilization Act until 1971. That was
twenty-six years after the big Nazi eugenics program had demonstrated
the brutalities lurking behind legal terminology such as, “mental
hygiene,” a close verbal and conceptual cousin of ethnic cleansing. In
the case of Alberta, the provincial government tried to use the Canadian
constitution to protect itself from being sued by the its sterilized
victims. As Angus McLaren details in Our Own Master Race, in its final
years Native people were put involuntary under the surgeon’s knife of
ethnic cleansing at a rate ten times that of all other groups in
proportion to their overall numbers in the population.
This crime against humanity clearly fits section 2(d) of the Genocide
Convention. That provision stipulates that “imposing measures intended
to prevent births within the group” falls within the crime of genocide
as defined by international law.
No, we are not all Naziis. To our society’s credit, we eventually
opposed Naziism with the full energy of our military, industrial and
ideological energy. Moreover, with some few exceptions the leading
lights of the ethnocentrically misnamed “West” (whose dominance of
America is actually based on the invasion of Indian Country from the
east) tried to steal themselves against allowing any repeats of the
horrors visited on jews, on gypsies on communists and on homosexuals--
all condemned targets of the vast eugenics scheme that was the major
biotechnological pillar of the Third Reich’s social policy.
As we leave the twentieth century, with the ghastly horrors of Rwanda,
East Timor, Tibet, Guatemala, Cambodia and now the Balkans to
demonstrate how unsuccessful we have been in suppressing genocide or in
holding those who commit genocide accountable, let us remember how we
entered the century. Let us remember World War I and the origins of
word, “balkanization.” The ethnic horrors of the unglued Yugoslavia puts
us face to face with the burdensome legacy of the White Man’s propensity
for murderous ethnic hatreds This propensity is well understood by
Indigenous peoples around the world, peoples who have never had some
sort of equivalent of a war trial at Nuremberg to render a judgment of
history on the systematic murders of their children, of their parents
and of the desecrated ecosystems that violate the future health and
happiness of all our babies, born and unborn.
It would be a serious mistake to underestimate the growing resentment
among Indigenous peoples around the world that there has never been any
real reckoning with the crimes against humanity that have been so
integral to the process of privatizing and commodifying Mother Earth.
“What if the Holocaust had never stopped, so that for the State’s
victims, there was no vindication, no validation, no justice,” writes
Oneida psychiatrist Dr. Roland Chrisjohn together with Sherri Young in
their study of the Canadian Indian residential school system. What if,
as they wrote in The Circle Game “no compassionate throng broke down the
doors to dungeons to free those imprisoned within? No collective outcry
of humanity arose as stories on the State’s abuses were recounted? And
no Court of World Opinion seized the State’s leaders and held them in
judgment as their misdeeds were chronicled.”
The vast double standard, that seems consistently to protect those who
commit war crimes against Indigenous peoples, was a strong and pervasive
theme in the Declaration that emerged from the gathering of Indigenous
peoples’ delegations at the Rio Earth Summit in 1992. In a manifesto
entitled the Kari-Oca Declaration and Indigenous Peoples Earth Charter,
the authors asserted, “There are many examples of genocide against
Indigenous peoples.” A number of proposals were made to widen and
enforce international sanctions aimed at forcing the rule of law on
those who commit crimes against Indigenous peoples, often by
transforming their Aboriginal lands in ways that deprive them of their
health and their livelihoods. “The persons responsible,” the authors
proclaim, “should be tried before a World Tribunal, with a balance of
Indigenous peoples set up for such a purpose. This should be similar to
the Trials held after the Second World War.” Elsewhere the demand is
made that “The World Court must extend its powers to include complaints
by Indigenous peoples.” Moreover there is a proposal that “the United
Nations should be able to send Indigenous peoples’ representatives, in a
peace keeping capacity, into Indigenous territories where conflicts
arise.”
If there was to be another round of war crimes trials on the Nuremberg
model to address what has happened in the Balkans while leaving these
persistent assertions from Indigenous peoples unaddressed-- assertions
which Dr. Clark has attempted to carry forward against great resistance
into the domestic courts of Canada and the United States-- what other
conclusion could be reached than that there is a vast double standard at
work. It would hard not to conclude that the only kinds of war crimes
that really count are those commited against Europeans and their
far-flung progeny. What other conclusion could be reached other than
that genocide commited against Indigenous peoples, or against all
brown-skinned peoples of the planet for that matter, is somehow more
permissable than when ethnic cleansing is directed at White people?
Is this the profoundly racist signal that Canadian Judge Louise Arbour
and the other would-be architects of the new international court on war
crimes propose to convey to the world as the symbol of what they are all
about? Where would a judiciary for such a body be found whose members
had authentically demonstrated the true dignity, independence and
worthiness that can only come from truly grappling in a disinterested
way with the issues arising from complicity in genocide in their own
societies? What light might the procedures leading up to Dr. Clark’s
disbarment shed on the readiness of the likes of Ontario Appeal Court
Justice Louise Arbour to sit in jugment as a third-party arbiter on the
alleged perpetrators of ethnic cleansing in the Balkans, when the same
issues in North America have been almost completely sidestepped?
III
Holocaust Denial, North American-Style
When Columbus arrived in America, there were in the vacinity of 2,200
languages spoken on this hemisphere, by far the densest concentration of
linguistic diversity on the planet. The death of most of those
languages aids and facilitates the holocaust deniers that would say our
home and Native land in North America is not a place of ethnic
cleansing. The reality of genocide in North America and the elaborate
subterfuges to hide it, downplay it, or rename it, is the subject of a
major book by the prolific Ward Churchill. The work was published in
1998. It is entitled is entitled, A Little Matter of Genocide:
Holocaust and Denial in the Americas, 1492 to Present.
In 1997 a publication entitled Genocide in Canada, the Roseau River
Anishinabe First Nation Government in Manitoba Canada, published an
anthology of sources detailing allegations similar to those advanced by
Dr. Clark in his legal representations for his clients. A pioneering
work on the applicability of the UN Convention on Genocide to North
America is The Genocide Machine in Canada, by Mark Davis and Mark
Zannis. It was published in 1973 by Black Rose Books in Montreal.
These titles represent a small part of the huge mass of primary and
secondary sources that support the legal arguments aggressively brought
forward by Dr. Clark from the realm of the social sciences into the
adversarial forum of the courts. Given the extent of the
extremely-elaborate and well-grounded nature of the documentary backing
for his positions, how is it that his former colleagues have succeeded
in depriving this legal advocate of his status as an officer and friend
of the domestic law courts of Canada?
One way to interpret the persecution of Dr. Clark by the Law Society of
Upper Canada particularly, and by the media and legal establishment more
generally, is to see the effort to discredit him as a small but
revealing part of a very concerted and co-ordinated plan of
psychological warfare in North America to deny that the crime of
genocide has been integral the way this continent has developed. It is
this dark prejudice against the truth that in my opinion makes Mr.
McKay’s report of Clark’s disbarring, written on behalf of Canada’s most
powerful media monopoly, so illustrative of larger patterns.
At the very inception of the mobilization of the fighting forces of NATO
to make war, we were told, on the widening war crimes of ethnic
cleansing in the Balkans, the Southam chain subjects Clark to today’s
media equivalent of a public flogging. In my opinion, Clark rates this
treatment because of his untiring persistence, against all manner of
assaults to his person, his family, his colleagues and his reputation,
in raising the question of complicity in genocide as a genuine issue
that truly does cast a shadow over many legal establishments, even in
our own hemisphere, or, perhaps, more true to say, especially in our
own hemisphere.
In this fast stride through some of the more repressed episodes in our
own society’s unbroken heritage of ethnic cleansing, let us not forget
the year 1871. That was the date when the Congress of the United States
passed a law stating that no more treaties would be made with First
Nations-- that year even the fiction of obtaining some kind of official
consent for the appropriation of their ancestral lands would henceforth
be eschewed. From this date forward, Indian Country became a
thoroughgoing totalitarian regime under the power of the Bureau of
Indian Affairs, whose authority came from nowhere else other than the
end of the guns of the US cavalry. Will the Bureau of Indian Affairs in
the United States prove to be the proto type for the kind of governance
that NATO is developing for the Balkans?
In legislating their way out of their own constitutional principles as
articulated in the John Marshall decisions and in the Northwest
Ordinance of 1787, the USA clarified its rogue status outside the
rudimentary international laws of Aboriginal and treaty rights-- laws
which were adopted in the days when Indian peoples retained the power to
resist western expansionism, as they did especially in Canada’s war with
the United States from 1812 to 1814. In that conflict former U.S.
President Thomas Jefferson wrote that it had become necessary to hunt
the Indians down in Canada-- to “exterminate” Indian people altogether
or to push them with “the beasts of the forests into the Stony [Rocky]
Mountains.”
The USA’s original recognition of “Aboriginal rights to the soil” was
largely forced on Great Britain’s republican offspring in the era when
the Long Knives’ American war on Indian Country was also a war on
Canada. While the USA made several hundred treaties with Indian nations
between 1778 and 1871, not one of these has even remotely been
respected, making the image of the USA as an enforcer of international
codes of conduct a sad farce. The history of Indian policy in the
United States demonstrates a consistent pattern of violation of
international law, even within its own borders.
Meanwhile, the Canada of John A. Macdonald, was less able to afford the
price of Indian wars without a transcontinental railway and without an
effective army. In 1871 the government of what was then frequently
referred to as British North America, began to seek a begrudging
acquiesence from First Nations for replacing the Crown authority of the
Hudson’s Bay Company with the Crown authority of the new Dominion.
Although most of these treaties were in fact made with the sovereign of
Great Britain in her imperial capacity, the British government generally
and the British monarch specifically have also consistently operated
illegally in passing to the government of Canada, without international
sanctions or Aboriginal consent, domestic control of Indian policy.
This devolution was done in a way that passed all constitutional powers
to newcomer governments--i.e. the Canadian parliament and the provincial
legislatures-- and excluded First Nation altogether from any binding
power to a say in the future amendment of the Canadian constitution.
Thus in handing over the authority for widened self-governing to Canada,
Great Britain commited a clear violation of international law that
subjects the Crown’s Indian allies from the American Revolution, the War
of 1812, and two World Wars in the twentieth century, to a form of legal
authority where First Nations have no formal vote in the process of
changing or amending the Canadian constitution.
The lack of consistency between Great Britain’s position on the right to
self determination of the Kosovar Albanians and Great Britain’s own
violation of the rights of Indigenous peoples in the transformation of
the British empire to the British Commonwealth, needs to be better
understood and subjected to same sort of scrutiny and due process as the
prosecution of those who are to be commited war crimes trials in the
Balkans.
Once some treaties were made-- once some of the key Indian leaders like
Big Bear and Poundmaker were incarcerated in Canada as political
prisoners-- the government of the Dominion enforced with increasing
agressiveness the Indian Act, which became for a time in the 1930s the
singularly most repressive statute in the world for the governance of
Indigenous peoples. Indian religious ceremonies were prohibited and it
was made illegal in 1927 even for registered Indian people even to raise
money to purchase stamps or to travel to meetings if the purpose was to
press some Indian title or claim.
While some of these provisions were removed after 1951, when Naziism did
force on Canadians some reckoning with their own heritage of White
supremacy, registered Indians continued to be constrained within the
paternalistic authority the federal state. Meanwhile, in much the same
way as the days when the violence on Indian Country was celebrated by
Frederick Jackson Turner and others as a dynamic factor in the genesis
of American democracy, major crimes against Indians frequently go
uninvestigated, let alone punished. On the other hand the Indigenous
peoples of North America are often provide a majority of the prison
inmates, especially in the Dakotas, Minnesota, Manitoba and
Saskatchewan.
As in the liberation struggles of many oppressed colonies of Europe,
the prisons of North America proved to be a kind of university for the
“militant” American Indian Movenment. It first took shape in the late
1960s to react against the continuing genocidal conditions that feeds
institutionalized racism and keeps so many Native Americans poor,
unemployed, and subject to the internalized violence of suicide,
substance addiction and domestic violence.
This emergence of AIM in the United States climaxed with their second
major engagement with the American military at Wounded Knee in South
Dakato. Where in 1890 the Seventh Division of the American Cavalry
massacred several hundred defenceless Sioux elders and children as an
act of wanton revenge for army’s former defeat at the Battle of Little
Big Horn, in 1973 the AIM returned to Wounded Knee. Its objective was to
press their assertion about the continuation through new means of the
American government’s genocidal policies aimed at the extinguishment and
absorption of what remained of Indian Country.
Their assertions were met by the outbreak of a virtual civil war at the
Pine Ridge Reservation in the United States, where almost 100 AIM
sympathers and members were assassinated by a Guatemalen-style death
squad known as the GOONs, a para military group that had ample support
and sanction from the American federal police. To this day these
murders go mostly univestigated and unpunished. Meanwhile Leonard
Peltier, who was quickly extradicted from British Columbia Canada on
transparently falsified evidence, continues to languish in American
jails as a political prisoner and, in the style of Nelson Mandella and
the African National Congress, as the spiritual father of AIM.
This resort to history helps to put in perspective the symbolic
significance of the professional attacks on Bruce Clark. The efforts to
sideline his legal arguments and minimize his allegations fits a broad,
global pattern of repression against those seeking to undertake legal
procedures to prosecute the crimes against the humanity of Indigenous
peoples, beyond the framework of the domestic law of nation states; to
reframe the issues as ones which belong in international forums, the
only milieu where true third-party adjudication is possible given the
nature of the allegations. To leave to domestic institutions the
adjudication of the allegations coming forward from Indigenous peoples
that they have been subjected to genocide, would make as much sense as
leaving the prosecution of those charged with alleged war crimes in the
Balkans, to Balkan courts alone.
For seeking to return the issue of Indigenous peoples rights to the
forum of international law and third-party adjudication, both Clark and
his clients are frequently labelled as “militants.” What they are
attempting, however, is profoundly conservative in the authentic sense
of the word. In trying to divorce today’s Indian Country from what has
happened in the past, Southam’s Mr. McKay would suggest that somehow
there is something illegitimate about going into history for directives
on what should take place in our own time. McKay comments derisively,
for instance, that Clark is “the renegade lawyer who spent two decades
cultivating militant native clients with arguments dating back to the
1700s.”
Perhaps if Clark was an economist or a sociologist more could be made
of his preoccupation with the past to understand the existence of legal
remedies for disputes in the present. But he is first and foremost a
lawyer and the whole idea of the law is to figure out the limitations
put by past law makers on our various negotiations with the present, in
order to shape the future. It is bigotry, pure and simple, to suggest
that Indians are somehow less entitled than others to invoke the
authority of laws made in the past-- to invoke treaties, for instance,
as instruments which demonstrate and symbolize that First Nations have
been recognized as sovereign peoples in international law, peoples whose
relationships with the governments of countries who share their
ancestral lands, is best understood in the framework of
nation-to-nation; equal to equal.
Try driving up to a crossing point along the Canada-US border and
telling the officials there that this line on the land was put there in
1783 or 1818 or 1846, and that you weren’t alive then and that the laws
made in those days thus aren’t applicable to you. And yet at the same
time as those lines were being drawn on Indian Country, other laws were
being made that codified rules and regulations that became today’s the
constitutional basis for what we call in the language of Canada’s
supreme law, “existing Aboriginal and treaty rights.” This genre of
North American law, whose underlying principles emanate from the
imperial government in Europe, established quite rigorous rules and
regulations that had to be fulfilled by the colonial governments if
Indian territories were to be opened up to non-Indian settlement.
IV
The Recognition of Existing Aboriginal and Treaty Rights:
A Legal Shield for the Protection of First Nations from Crimes of
Genocide and Ethnic Cleansing?
And now, here’s the more heartening news that Bruce Clark brings. While
genocide is the overwhelming theme of Europe’s colonization of the
continent, there were redeeming flickers of humanity here and there that
resulted in instruments like the creation in 1704 of Queen Anne’s court
for resolving Indian land disputes. As there is the more well known
Royal Proclamation of 1763 which entrenched after the demise of New
France the constitutional foundation of British imperial Canada.
This Royal Proclamation, which codified the protocols for
Crown-Aboriginal treaty making right up to the present day, provides the
key to understanding the laws beneath both the formal establishment of
the Inuit [Eskimo] territory of Nunavut only a short time ago and the
negotiation of the Nisga’a Treaty in British Columbia. The Nisga’a
Treaty, which its Aboriginal critics describe as the Nisga’a
Extinguishment Act, is a veritable test case to establish who is to give
and take what when it comes to the art of Canadian compromise on the
middle ground where Indian Country meets the land of the newcomers.
The many generations of delay between 1763 and 1999 might cause the
curious to wonder how it is that it took so long for the laws of Canada
to be enforced in British Columbia, if that is what the Nisga’a Treaty
indeed does. The curious might ask if the decision of the government of
BC to negotiate questions of land title with First Nations does not, in
itself, represent a tacit acknowledgment that Canada’s westernmost
province has for all of its history in Confederation existed outside
Canada’s rule of law.
In order to understand the constitutional depth and importance of
Aboriginal and treaty rights in the legal genesis of the northern
portion of North America, it needs to be remembered that for all of its
history leading up to the building of the Canadian Pacific Railway,
Canada was territory that, in the language of the Royal Proclamation,
was “reserved to the Indians as their hunting grounds”-- reserved so
that they would not be “molested or disturbed” until such time as they
decided of their own free will to enter into a treaty with the imperial
sovereign. This legal regime was entirely consistent with the fur-trade
political economy of British imperial Canada, a regime that gave rise to
the commercial development of Montreal as Canada’s original metropolitan
centre.
The Royal Proclamation has never been repealed. In fact its legal
provisions were renewed and re-asserted in section 25 of the act which
patriated Canada’s constitution in 1982. This the terms of this
reservation of lands still applies over much of Canada. If the words of
the Royal Proclamation mean what they say, then most of BC like much of
Quebec, the Maritimes as well as some of Ontario north of Lake Superior,
are supposed to be under Crown protection to this day as an unceded
Indian Country. The Indian people there are not to be molested and
disturbed through being subjected to the powers of the local governments
not of their own making. Whether or not one believes that this is a
reasonable principle for governing these non-treatied areas, Clark’s
position is that this is what the constitutional law in fact says and
that the only way to change this reality is through a constitutional
amendment.
A basic element of this interpretation of the law is to remember that
the First Nations in Canada are not in any way a conquered people as,
for instance, is the case with the French Canadians who were abandoned
by the government of France after the British army defeated the French
army on the plains of Abraham. Indeed, First Nations fought as allies
of the British army in the War of 1812 to defend Canada from being
annexed by the rabid republican Indian fighters that are celebrated as
heroes by our neighbours to the south.
After studying for many years what he calls the imperial law of Canada
arising from this history, Bruce Clark gradually developed very grave
concerns that the rule of law was consistently being violated by
ill-educated judges who responded to assertions of Indian title, not by
dealing with the imperial statutes such as the Royal Proclamation, but
rather by doing what seemed to them reasonable under the circumstances.
These judges could base their findings on various lines of precedents
that cycled and recycled the most noxious racial theories. A huge legal
fiasco, for instance, has developed from the infamous St. Catherine’s
Milling case, a legal dispute between Canada and Ontario in the late
1880s over the meaning of the constitutional phrase, “lands reserved for
the Indians.”
A whole pattern of jurisprudence has arisen, for instance, from a lower
court judge’s ruling on the case, where he deemed that “Now it is
evident from the history of [the reserves] that the Indians there are no
longer as in a wild and primitive state, but as in a condition of
transition from barbarism to civilization. The object of the system is
to segregate the red from the white population, in order that the former
may be trained up to a level with the later.”
This type of reasoning tended to prevail in the ruling on the Temagami
case, the land dispute that dominated Bruce Clark’s career for a
decade. During many of these years, Bruce Clark and his young family
lived on the Bear Island reserve, where he and Chief Gary Potts put
together one of the most comprehensive collections in that part of the
world of the imperial record of the colonization of Indians in Ontario.
As Paul McKay says of these years, Clark gave up his “lucrative law
practice, huge home [in Haileybury Ontario] and private airplane.” He
lived “in the very log cabin the Indian imposter Grey Owl used as part
of his own mythology.”
In the latter stages those years that Bruce Clark and his family spent
on Bear Island, I was starting my own career as a Native Studies
professor at Laurentian University in nearby Sudbury Ontario. From this
vantage point my colleagues and I studied the Temagami case closely. I
can truly say that on reading the response of Mr. Justice Donald Steele
to the arguments brought forward by Chief Potts and Bruce Clark, I was
truly shocked that such abhorent words of blatent racism could be spoken
from the bench as the legal dictate of this country. I wrote an
article on the ruling that was published in 1990 in a book called,
Temagami: A Debate on Wilderness. So the reader is thus armed to check
for yourself to see if I can back up my assertion at length and with
rigour in a suitable scholarly fashion.
Let me quote but one passage of Judge Steele’s decision to give an idea
of its flavour. He ruled that the expert witnesses for the Temagami
First Nations “were typical of persons who have worked among Indians for
so many years that they have lost their objectivity when giving opinion
evidence.” So there it is. That comment, made in 1984, signals the
beginnings of the growing sense in some circles, especially in the
higher echelons of the legal establishment, that Bruce Clark does not
play by the rules and is too close to Indian Country to be afforded
professional respect. What is to be made of the idea that non-Indians
who live and work among Indians cannot be seen as objective? Doesn’t
this beg the question of how Indians themselves could ever be taken
seriously by an interpreter of the law like Mr. Justice Donald Steele.
To now read all these years later Mr. McKay’s dismissive comments about
Bruce Clark as the infamous loser in Temagami and countless and other
cases, raises the question of strange argumentative concoctions you’d
need to win before a judge with the deep prejudices and sparce
historical knowledge of a Mr. Justice Steele. While I thought he was
the last word in judicial ethnocentrism, Mr. Justice Allan McEachern
managed to outdo his Ontario counterpart in the ruling of the lower
court on the Delgamuukw case. Mr. McEachern, who doubles as chair of
the judge’s own self-regulating body, pronounced that Indians have
almost nothing of worth to retain for either themselves or the world
from their own Indigenous cultures. To make this point, the BC jurist
actually quoted Thomas Hobbes, who used imaginary North American Indians
in 1651, to argue that life without a dictatorial ruler is “nasty,
brutish and short.”
Accordingly, to properly understand the genesis of Dr. Clark’s legal
interpretation, you need to know someting of the nature of his formative
experiences with judges that, in my view, were unusually extreme in
their ethnocentric hostility to Indian peoples and Indian cultures. What
emerged for him from this experience, was a dawning recognition that the
stakes of the contentions over Aboriginal and treaty rights are so big,
and the legacy of legal impropriety so old and so well protected by
layer upon layer of dubious and overtly racist legal precedent, that it
is almost unimaginable that any judge would take the responsibility of
overturning this status quo-- of overturning this institutionalized
complicity in genocide that is so deeply ingrained in the framework of
North American experience that it is made to seem normal and natural and
simply a fact of life.
No judge could realistically be expected to expose his or her colleagues
to the brand of serious criminal charge that the now disbarred lawyer
regularly characterizes in the language of the old imperial statutes.
>From these statutes he extracts the words treason, fraud and sometimes
chicanery as well, to describe the crimes that the imperial sovereign
was seeking to criminalize with imperial statutes including the Royal
Proclamation of 1763 and the instruments which created in 1704 the
imperial instrument to provide for genuine third-party adjudication on
land disputes involving Indigenous peoples.
A major point to consider in evaluating this startling and inescapably
troubling proposition, is to question who has ever been charged or
crimalized for the offence of violating an “existing Aboriginal and
treaty right?” In 1982 this phrase became part of the supreme
constitutional law of Canada. And yet what evidence can be shown that
any corporation, any individual or any government has ever faced
criminal proceedings for infringing on whatever constitutes an
Aboriginal and treaty right? And what else is a violation of this genre
of human rights, other than a crime that contributes to the process of
genocide and ethnic cleansing?
This process of ethnic cleansing has been so thoroughly ingrained into
the character of North America since 1492, that it has come to be seen
as perfectly natural to treat Indigenous peoples, Indigenous languages
and Indigenous laws as alien. Moreover, in virtually every case where
Indigenous individuals attempt to defend on behalf of their peoples
their lands and resources-- territories that the Crown or the federal
authority in the USA actually has a fiduciary reponsibility to protect--
the result is always the same. Invariably the Indigenous patriots are
treated as criminals for defending their lands and resources, no matter
how transparently defensive their posture.
The history of North America thus demonstrates time and time again that
the law of self-defence never is respected when it comes to Indigenous
peoples. They have been defined again and again, through all sorts of
legal and sociological theories, as primitives who must be eliminated
either through outright murder, or through cultural genocide, in the
name of the expansion and progress of western civilization. Or they are
defined as children who must be maintained under the guardianship of the
churches and federal authorities until such time as they can be elevated
to the rights and responsibilities of citizenship and municipal
self-governance. The other side of this extension to Indians of
citizenship in the polities of their colonizers, is that they are
expected to subordinate their citizenship in their own Aboriginal
nationalities to the sovereign authority of the very governments which
have dispossessed their peoples.
Clark’s basic proposition, therefore, is that that the legal
establishment, from top to bottom, is so deeply guilty of systematic
violations of the law of existing Aboriginal and treaty rights-- of the
laws put in place in the very constitutional foundations of British
North America, that there is a huge pressure on every player in the
system not to allow any case to proceed forward that might give an
opening to the argument that ethnic cleansing in North America carries
consequences that could go as far as criminal charges against the
perpetrators.
On face of it, this allegation may initially seem preposterous to the
point of absurdity, a position well reflected in Southam’s attack piece
on Dr. Clark as authored by Mr. McKay. But think about it further and
it becomes equally as absurd to imagine that a land theft of the scope
which has clearly taken place in North America, could possibly have
happened without some criminal transgressions, even of the newcomers’
own legal codes. Moreover, the group with the most to lose if these
arguments were to be truly pressed, as Dr. Clark has attempted in many
ways against great resistance from above, are judges,
judges-in-training (i.e. lawyers) and the faceless defenders of “the
legal establishment” in unaccountable and self-regulating agencies like
the Law Society of Upper Canada and the Canadian Judicial Council.
V
The Absence of Genuine Third-Party Adjudication in Arbitrating Disputed
Claims between First Nations and Non-Aboriginals
The heart of Dr. Clark’s legal theory concerns the lack of genuine
third-party adjudication when it comes to the domestic court’s handling
of those issues involving conflict between the legal assertions of First
Nations and the people, governments or corporations whose legal
identities are rooted in the newcomers’ colonization of North America.
There is no mystery here. Third-party adjudication is the basis of
every respectable legal system. Can we expect, for instance, Serbian
judges in Yugoslavian courts to be objective and impartial in deciding
the identity and the extent of the crimes of alleged Serbian war
criminals?
Canada’s own Louise Arbour is busy in Europe setting herself up as
something between a judge and a prosecutor with the aim of bringing the
war criminals of the Balkans to justice. You can be very sure that if
any such proceedings do take place, the NATO countries’ own legacy of
genocide and ethnic cleansing will be very interesting to the accused
persons and their lawyers. And I can almost guarantee you that the
background of the Upper Canada Law Society’s disbarring of Dr. Clark
will also come up.
Very legitimate questions about ethnic cleansing in North America may
arise, indeed should arise in this forum for the consideration of war
crimes. Only if there is some authentic display of consistency can there
be any real integrity in courts set up to the enforce international laws
of war crimes against humanity. What legitimacy will a prosecutor like
Louise Arbour have, if it can be shown that she is part of a legal
establishment in Canada that has actively covered up the crimes against
humanity in North America. One very illustrative example of the
extremes that this legal establishment will apparently go to in
preventing its own complicity in genocide from coming to trial, is, it
could be argued, the disbarring of Bruce Clark as a particularly
heavy-handed means to discredit the arguments he has attempted to
advance?
So the heart and soul of the Clark thesis, is that judges in Canada and
the United States are in no position to deal objectively with deciding
among themselves if some, or all of them are guilty of treason or fraud
or complicity in genocide. Moreover, the circumstances of their own home
life, presumably as land owners with title that could be affected by the
competing assertions of Indigenous peoples, add to the built-in conflict
of interest when they are asked to decide matters pertaining to existing
Aboriginal and treaty rights. So what is needed to properly adjudicate
land disputes between Indian and newcomer contestants, is a court
composed of jurists without a vested interst in either camp--
third-party adjudication.
Enter the matter of the Mohegans versus Connecticut. I have seen a
number of literary references to the Mohegan case long before Bruce
Clark grasped on its significance as a legal basis for asserting that
the remedy for true third-party adjudication, entered the mainstream of
constitutional law in English North America in 1704. For instance in
1985, five years before Clark’s revised Ph.D. thesis was published as a
book by McGill-Queen’s Press, my own department here in Lethbridge
published a book entitled Quest for Justice. It includes an article by
James Youngblood Henderson entitled, “The Doctrine of Aboriginal Rights
in Western Legal Tradition.”
Youngblood Henderson is currently director of the Native Law Centre at
the University of Saskatchewan. In the article he comments expansively
on the broad constitutional significance of the Mohegan case, a legal
proceeding that essentially marked a recognition by the English
sovereign that the Aboriginal and treaty rights of Connecticut’s Mohegan
neighbours could not properly be adjudicated in a normal colonial
court. So the imperial government went to great lengths to create a
Royal Commision on Aboriginal land rights, although local land
speculators kept trying to buy off and co-opt the judges chosen by the
Privy Council of the Mother Country.
Obviously it strikes Mr. McKay as totally ridiculous that what happened
in Connecticut in 1704 could somehow have any bearing on what’s
happening now in British Columbia, or, with Bruce Clark’s expert legal
advice, at Long Lake reserve 58 in northern Ontario. Mr. McKay quotes
at length various “respected” and “Aboriginal” sources to prove his
case that all sensible experts in Canada agree that Queen Anne’s Mohegan
precedent should be left alone and that all systems are go and A-OK in
Canada for a happy outcome to Aboriginal land disputes within existing
institutions.
For instance, Mr. McKay paraphrases Stuart Rush as arguing “the Canadian
courts at all levels properly dismissed Mr. Clark’s 1704 legal
argument.” Then Mr. McKay cites Rush directly, writing, “His [Clark’s]
whole argument is misplaced and wrong in law. Canada is the only place
where this can be settled.” What Southam’s point man fails to observe,
however, is that as lead lawyer on the Delgamuukw case, Mr. Rush and
others like him have made barrels of money, with much more to come, by
working within the framework that avoids the question of who really
should be deciding the scope and content of existing Aboriginal and
treaty rights. Bruce Clark and his colleagues often refer to this
central issue of who decides, as “the jurisdiction question.”
Indeed, virtually all the persons that Mr. McKay named and interviewed
have a large vested interest in working within the framework of domestic
law and the infrastructure of Indian Act agencies, including the
Assembly of First Nations, that form the basis of most federally-funded
and federal-sanctioned negotiation procedures. In my view this system
of so-called self-government is based, whatever the rhetoric, on
municipal models of delegated autority and on principles of governance
of Indigenous peoples that draw on the same legal theories as what Lord
Lugard used to refer to as “indirect rule.” Lord Lugard was an
influential imperial official based largely in Nigeria in the 1920s.
This system of indirect rule offends some First Nations people as too
severe a check on the self-determination of their Aboriginal
nationalities. Those rooted in more sovereigntist perspectives-- in
perspectives totally unreflected in Mr. McKay’s piece for Southam-- tend
to look with favour at some sort of continuing protective role for the
British monarchy in the affairs of First Nations. Such an involvement,
one with a very deep and elaborate constitutional and cultural heritage
both in the Indian Country and the imperial law of Canada, would signal
to Indigenous peoples that they retain a recognized standing in
international law and that they have not been entirely subordinated to
the domestic courts or the domestic laws of their local colonizers.
This position is surely equally as worthy of respect and international
protection as that of any other colonized people, including the Kosovar
Albanians, when they are dehumanized and dispossessed by a hostile, or
potentially-hostile government, in control and ownership of all, or
most, of their ancestral lands.
Mr. McKay does not fail to point to the historic Delgamuukw ruling by
the Supreme Court in 1997 as proof that the system does work-- that all
the talk of treason and fraud and complicity in genocide has now been
rendered obsolete. The Southam journalist writes, “the Supreme Court’s
landmark Delgamuukw decision has affirmed aboriginal rights to
self-government and land use across Canada-- and effectively achieved
much of what Mr. Clark’s native apostles could have hoped to attain from
a favourable ruling on the 1704 Connecticut case.”
The more I look at the genesis of the Delgamuukw ruling, the more I
suspect its author, Antonio Lamer, wrote it very much with the arguments
in mind brought forward by Dr. Clark in 1995. The background of Dr.
Clark’s rendez-vous with the Chief Justice was the dramatic
confrontation at Gustafsen Lake, which underlined for the attentive the
possible consequences of not coming to some sort of compromise on the BC
land issue. Recall that in the exchange, where the Chief Justice
effectively denied Dr. Clark the opportunity to put forward the
jurisdiction issue, the country’s highest jurist referred to his peskey
nemisis as “a disgrace to the bar.”
This attack on Dr. Clark seems to me an essential part of the genesis of
the Delgamuukw ruling, whose main author is in the habit of moving from
interview to interview, spinning the media as he goes to fend off or
mitigate growing unease with the judicialization of politics and the
politicization of the judiciary. It is by observing this phenomenon
that I have come to view the Delgamuukw ruling as being informed not so
much by the Chief Justice’s deep and genuine reading of the existing
constitutional law; it appears to me rather as a sort of pre-emptive
strike whose inspiration is essentially political rather than
scholarly. Its intent is to steer the BC land issue away from the
deeper jurisdictional questions by giving just enough ground to the
constitutional force of the imperial law to pre-empt a real reckoning
with the criminal dimension arising from a long history of violations of
Crown’s very clear and explicit recognitions of existing Aboriginal and
treaty rights.
My speculation fits well within Dr. Clark’s argument, developed at great
length in his forthcoming book, that the recent history of Aboriginal
rights jurisprudence in Canada reveals this country as a politically
correct society rather than a rule of law society. Dr. Clark is far
from alone in his thesis that the court has become so overwhelmingly
politicized that it lacks real credibility as a dispassionate dispenser
of judicial objectivity. On March 30th The Ottawa Citizen published an
opinion piece by Ian Hunter, Professor Emeritus in th Faculty of Law at
the University of Western Ontario. He commented with alarm at the Chief
Justice’s wierd characterization of the role of the judiciary as
“actors” in “a psycho-drama” who must “command a certain degree of
repect or it’s chaos, and the whole system falls apart.”
According to Professor Hunter, Chief Justice Lamar has no inherent right
to “command” repect, which, in the author’s opinion, the Chief Justice
has not earned. Says Hunter of the courts under the guidance of the
Chief Justice, “today its three parts ideology... to one part law.”
Moreover, with the Supreme Court’s chief judicial politician as their
model, “our judges swan around the country, speaking to credulous and
sycophantic faculty and students at the law schools, boring on about how
progressive and with-it they have become.”
It is with such observations in mind that I have come to see our current
Chief Justice as a consummate example of a judicial politician. In
writing the Delgamuukw case, its chief author may very well have moved
towards the ground of acknowleging the country’s underlying imperial
law, precisely as a way of pre-empting a more sweeping historical
reckoning with the arguments of Dr. Clark. Of course I would not go as
far as to say that this was the only factor in the Chief Justice’s mind
in formulating the ruling. But I would go as far as saying it is a very
plausible explanation for a ruling that does, on the surface at least,
strengthen the hand especially of Aboriginal peoples like those in BC
and Long Lake 58, who have never been extended the legal recognitions
and respect demanded by the Royal Procalamation of 1763.
In the end, the authors of the Delgamuukw ruling did not find guilt or
innocence; instead they simply ordered a new trial. Thus the issue of
how it was that the constitutional law of Canada could be violated for
generations without anyone being held accountable, was neatly
sidestepped. Moreover, the jurisdictional question has still not been
addressed and there is nothing to say that future courts won’t roll back
whatever gains have, in theory, been made with the Delgamuukw case.
And then there is the question of the enforcement of law. On behalf of
Indigenous Ecology Alliance, I have stood before the judges of the
National Energy Board in Canada where I have quoted the words of the
Delgamuukw ruling. In response, they have denied that what is written
in black and white means what it says. What they told me is the
equivalent of saying 2+2=3; they denied that the Crown has any real duty
to consult Indian nations on the building of the Alliance
transcontinental pipeline, which is being built from northern BC to
Chicago.
>From my perspective the Queen’s men at the Energy Board, a regulatory
body notoriously captive to the direction of Big Oil in the USA,
answered as Andrew Jackson did when the Supreme Court told him the
Cherokee have rights. Let Antonio Lamer enforce the law, these Crown
regulators might just as well have said.
VI
The Big Cover-Up: The Standoff at Gustafsen Lake in 1995
and the Use of the Police, the Army and a Compliant Media to Prevent the
Internationalization of the BC Land Issue
The “negotiations” leading up to the Delgamuukw ruling didn’t take place
on paper alone. The demonization of Bruce Clark in the media really
started in earnest when he turned up at the standoff at Gustafsen Lake
in the summer of 1995 to represent his clients. When the Gustafsen Lake
Sun Dance began, Bruce Clark was away in England seeking to persuade
Queen Elizabeth II and her staff of the imperial sovereign’s
constitutional duties to see that old dispute over the legal title to
the lands of British Columbia was subjected to a process governed by
genuine third-party adjudication.
The origins of the standoff lie in the building of a fence by about 30
Native and non Native sun dancers from various parts of North America
who had gathered for a number of years at this particular site for an
annual religious ceremony. The sun dancers claim the fence was put up
originally to keep the cows in the surrounding ranch from defecating on
the sun dance grounds. This action led to a confrontation between the
sun dancers and the ranch hands, a confrontation that escalated into a
standoff involving several hundred RCMP together with members of the
Canadian army who had control of the deploymment of three Armoured
Personnel Carriers. It is a legitimate question to ask why it was that
the governments of British Columbia and Canada ended up devoting such an
overwhelming show of force to counter the assertions of a few sun
dancers to control of a few acres in a remote part of the interior of
BC.
In any case as the standoff became more intense, these few contested
acres became the centre of assertions by the sun dancers that they were
on unceded Indian lands and that the Royal Proclamation of 1763
stipulated they should not be molested or disturbed on grounds that the
Crown had reserved to them as a hunting ground. Once he arrived on the
scene, Bruce Clark advanced these arguments on behalf of his clients,
including William Jones Ignace, the 63 year-old Shuswap elder who also
proclaimed himself to the world by the ecological name of Wolverine.
The very sensationalistic use of language employed by Mr. McKay’s in
his one-sided account of the recent disbarring of Dr. Clark, well
illustrates the way the media generally described from the onset the
defensive stance of the sun dancers at Gustafsen Lake, together with the
demeanour and the undeniably provocative ideas of controversial,
“coneheaded Ph.D.” lawyer.
I wasn’t there. So I have heard different stories and read different
accounts of what really happened, including from Ovide Mercredi who
characterized himself somewhat as a peace keeper in the style of Ghandi.
Mr. Mercredi states that he went to the contested ground to help prevent
a tragedy. Others have different views of his role. In any case what I
could clearly see from the electronic and print press reports is that
Canada’s federal police were firmly in control of the information coming
out of the confrontation. The journalists were kept far away from what
really was happening and the RCMP’s information officers presented a
steady stream of commentary that I can assert for sure, effectively
demeaned and dehumanized the diverse group of people inside the camp.
The daily briefings conducted by RCMP Officer Peter Montague were of the
nature of the closed and tightly controlled coverage of the USA’s
invasion of Iraq, or more recently, of the Pentagon’s briefings on the
bombing of Yugoslavia. The people inside were demonized by the
propaganda division of the police as crazies, lunatics, fanatics,
rebels-- as all manner of monster-like radicals. Although with the lack
of a proper public inquiry it is unclear exactly what happened, it seems
that the sun dancers’ asserted claims to a few acres in the great
Canadian wilderness, was countered by the mobilization of hundreds of
police officers, the police firing of tens of thousands of rounds of
ammunition, the deployment of Canadian soldiers and Armoured Personnel
Carriers, and even the use of land mines for heavens sake.
The media simply reported as fact, day after day, only the RCMP’s
version of events. Most journalists neither sought nor obtained
permission to see for themselves what was really going on. Nor,
apparently, did they think to question seriously the process that sent
Dr. Clark away to a hospital for the criminally insane, put him in leg
irons and caused he and his wife, justifiably I think, to flee from the
vigilante excesses of the media, the public, and the same legal
establishment he sought to indict with his undeniably provocative legal
interpretation.
Given the extraordinarily unethical and unprofessional record of media
reporting on the character, the actions and the legal ideas of Dr.
Clark, my inclination is to be suspicious of Mr. McKay’s accounts of the
lawyer’s alleged temper tantrums and his alleged paper throwing
incidents. Dr. Clark refers to the charge made against him as based on
an incident that amounted to his “resisting assault.” I have no doubt
that Dr. Clark has his fair share of human eccentricities and that human
nature, when subjected to inhumane threats, pressures and violations,
sometimes breaks out in erratic and even provocative ways. I also know
that a common tactic of law enforcers in the days when civil rights
workers were challenging the Jim Crow laws of the American Deep South in
the era of totally overt apartheid, was for the police to jump the
targeted activists and then charge them with assault. Anyway, I wasn’t
there to see for myself what happened when Mr. Clark was attempting to
defend his clients in the hyteria that the media was instrumental in
whipping up. And as far as I know, Mr. McKay wasn’t there either.
Now things become yet more complex. In the later trial of the Gustafsen
sun dancers, RCMP video tape was aired, producing transcripts of police
officials bragging that “smear campaigns are our specialty.” More
troubling yet is the piece of tape producing a transcript, “kill this
prick Clark and smear everyone with him.”
A few months later the same cast of Mounties were taped pepper sraying
university students for protesting Canada’s hosting in Vancouver of the
Asian Pacific Economic Co-Operation Summit, including Indonesia’s
ruthless dictator, the infamous Mr. Suharto. The episode eventually led
to media reports that the Prime Minister himself and his office were in
charge of police operations whose ultimate purpose was not to maintain
law and order, but to prevent Suharto and others from being embarrased
by direct exposure to dissidents acting well within what is supposed to
be allowed for, within the Charter rights of Canadian citizens.
Subsequent events have exposed the Mounties to growing criticism. The
RCMP, for instance, planted and illegally exploded a bomb in northern
Alberta to generate public outrage against two suspected sabotagers of
the health-destroying gas extraction infrastructure in the northern part
of the province. On a reserve near Calgary a Mountie shot and killed an
Indian woman and her son in a child apprehension operation for an Indian
social service agency. This episode drew attention to the fact that of
all the people killed by the RCMP since its inception, over half are
Aboriginal.
The mounting number of unanswered questions about what the modern-day
RCMP in Canada is really all about, takes us back to what really
happened at Gustafsen Lake in 1995. There the journalistic smearing of
Bruce Clark and his clients, apparently under police guidance and
oversight-- the finessing of the instrments of popular opinion that
constitutes the real weaponry of the dangerous 1990s-- became hard to
ignore for those with alert eyes to see.
To my way of thinking the most plausible scenario is that a decision was
made at the highest political level that the BC land issue was not to be
permitted to spill out into the international community, especially by
allowing Bruce Clark, the Wolverine, or “Doc” Hill (aka Splitting The
Sky) to reach an audience with a coherent, consistent, well articulated
message. Splitting The Sky is a veteran of the Attica prison riot who
brought his old lawyer, Ramsay Clark, a former Attorney General of the
United States, into the Gustafsen confrontation. Ramsay Clark became a
powerful voice of sanity in an escalating atmosphere of ghoulish
spectacle, that was stripped by a compliant media, under tight police
controls, of its serious intellectual content.
Doc Hill is hard at work on his memoires of what happened, an account
that should increase the pressure for a full public inquiry into an
episode that in my opinion makes the RCMP’s pepper spraying of the
Canadian university students in 1995, look like a veritable boy scout
jamboree by way of comparison to what happened under cover of a media
blackout at Gustafsen Lake. The pepper sraying incident was rightfully
showered with sceptical scutiny by the Canadian journalists such as the
CBC’s Terry Melewski. Many of them were definitely not willing to take
the RCMP’s version of events at face value.
Thus when it came to defending the constitutional rights of middle class
university students-- folks as polished and polite as law student Craig
Jones-- the media was ready, willing and able to fight the good fight as
a friend of the legitimate democratic right of Canadians to air their
legitimate dissent. Unfortunately, the same kind of journalistic
independence has, with some small but noble exceptions, been lacking
when it came to an episode involving the efforts of a group of Native
and non-Native protestors seeking to raise the issue of what court can
legitimately oversee the resolution of the BC land issue.
It seems, therefore, that efforts to force some reckoning with the
alleged complicity of the domestic legal establishment in North American
genocide, was subjected to a politically-directed police and military
crackdown that essentially was obscured from informed public scrutiny
by a compliant media. Thus a huge double standard is revealed once
again where the human rights of Native people are held to be cheaper and
less worthy of protection than, for instance, the middle class
university students who were pepper sprayed. The effect has been to
protect the aggressors and victimize the innocent of those who departed
from different sides of the conflict at Gustafsen Lake.
The Wolverine served four years of his nine-year jail sentence. Compare
the severity of this punishment for trumped up mischief and trespassing
charges, to the fact the the Ontario Provincial Police Officer who
killed the Ojibway man, Dudley George, received only the order to do
community service. Dudley George was an unarmed protestor who was
killed at Ipperwash Ontario when he took part in a demonstration aimed
at asserting Indian control over their ancestor’s own burial ground.
When Wolverine was released from prison early in 1999, the silence of
the Canadian media on the condition of the 67 old defender of Indian
Country was deafening. On a similar score, the press have been
thoroughly scared off from looking into the role of the Mike Harris
government in the police killing of Dudley George at Ipperwash. What
began as a peaceful protest related to the stand at Gustafsen Lake,
ended in a tragedy that still lacks proper explanation. So decrepit is
Canada’s domestic human rights apparatus, that the United Nations Human
Rights Commission has felt compelled to intervene to seek an explanation
on the apportionment of responsibility up the chain of command in the
state’s violent elimination of an Indian protestor.
VII
The Gross Misrepresentation of the Sources of Division in Indian Country
and the Failure to Identitify Broadening Class Divisions Separating an
Entitled Minority from a Disempowered Majority
The perpetuation of this web of cover-up and half truths, and media
misrepresentation to disguise the true issues, proceeds in a way that
has long characterized the perpetuation of a quiet, but insidious
variant of ethnic cleansing that is being perpetuated in North America
into the new millenium. Why is it that Native people in Canada, but
especially in northern Canada, consistently kill themselves at a rate
higher than any other recorded population in the world? When will the
killing stop? What is to be the monument we will put up for those tens
of thousands-- those tens of millions over the centuries-- who have had
to die, premature, gruesome, senseless, horrible deaths so that the
Americas could be remade in the image of Europe.
The extent of this makeover though ethnic cleansing is reflected in the
reality of a European defensive coalition, NATO, that throws in Canada
and the United States as if North Atlantic had everything to do with the
European heritage and nothing at all to do with the tens of thousands of
years of history of the Aboriginal civilization of the Americas.
A big part of the ethnic cleansing has been advanced by writing
Indigenous peoples out of history and thus setting the conditions for
their exclusion from the exercise of contemporary geopolitics. It is
made to seem almost as if First Nations never existed; almost as if
so-called western civilization was the original civilization of the
Americas rather than an overlay brutally imposed through very systematic
genocidal tactics.
To this very day neither the legacy nor the perpetuation of ethnic
cleansing, North American-style, has been properly addressed in any
domestic or international court, adequately equipped and empowered to
deal with the crimes against the humanity of the Indigenous peoples of
the Americas. Without a doubt, the old cycles of murder, of land theft,
and of subjugating Indigenous peoples constitutes the most consistent
and all-encompassing pattern unifying Euro-American history on two
continents from 1492 until the present. Instead of looking truth in the
face, however, we apply band aids and linguistics ornaments to provide a
seemingly benign outward appearance for our own Kosovos and our own
dirty little tactics for manufacturing contempt for the likes of Bruce
Clark and the people Mr. McKay refers to, as his “native apostles.”
The experience of Bruce Clark demonstrates what happens when a dutiful
Canadian functionary leaves the well-funded, lawyer gravy train devoted
to, as Mr. McKay writes, “affirmed Aboriginal rights to self-government
and land use rights across Canada.” What these words essentially
identify in their current useage, is the comfortable patronage network
that constitutes the infrastructure of the Indian business in
see-no-evil-hear no-evil-do-no-evil Canada. Enough of this
complacency! If we in Canada and the United States are going to commit
our young men, including many Indian men, to serve and die in an
honourable crusade to prevent the commission and spreading of ethnic
cleansing in the Balkans, we had better confront more honestly the home
grown version of the same process in our own, North American back
yards. We are all Kosovo.
One of the great tragedies of the media/police head games played at
Gustafsen Lake is that the whole conflict was simplified and
misrepresented as a simple conflict between criminals and law
enforcement agencies. As far as most of the mainstream reportage of
what the event meant for the internal dynamics of Indian Country, all we
got was moralistic dribble about the law abidding Indians and the
lawless Indians, the elected Indians and the self-appointed freedom
fighters, the fanatics and the pragmatists, “our Indians” and the wild,
savage Indians. Right there, in those essentialized polarities of
Hollywood trash, the ideological violence on Indian Country is
perpetuated.
It was as if the Mounties were there--no North of 60 good guys this
time-- to hold up a cape of obfuscation and prevent the widening of an
honest and much-needed dialogue among First Nations peoples and the rest
of the population throughout the country and the continent. In the
distance between what Wolverine and Ovide Mercredi, Splitting The Sky
and Orvil Looking Horse, Peter Montague and Bruce Clark, there was the
makings of a broad discussion on what needs to be done to assure the
survival of the Aboriginal civilization of the Americas for the next 500
years; to assure the survival of us all as well as our plant and animal
relatives in the great web of life.
Paul McKay’s brand of reporting on the disbarring of Bruce Clark
illustrates well the kind of false, contrived misrepresentation of
reality that does such an injustice to his all. When I first read his
report on my computer screen, my eyes popped from my head as I saw the
words “dissident native faction” associated with my family, friends and
acquaintances at Long Lake 58 reserve in northern Ontario. Then I read
the words, attributed to a colleague who I have known in passing for
about 20 years, suggesting that Bruce Clark had shown up on the reserve,
split the community, and then taken the “militant minority” with him
towards his Star Wars, coneheaded Ph.D. fantasies about the continuing
relevance of the need for genuine third-party adjudication in land
disputes involving First Nations in Canada.
As far as I have been able to gather from telephone calls to the
northern Ontario reserve, Mr. McKay came to his conclusions without
interviewing directly anyone at Long lake 58. Instead he simply
re-cycled for the whole world the old dishonest sensationalisms of the
Gustafsen Lake copy, as if one bunch of Clark clients must be pretty
much the same as another. If my allegation is correct here, then I
believe Mr. McKay has commited the most grave kind of journalistic
offence by demonizing, dehumanizing and discrediting people without any
effort to allow them to characterize themselves on their own behalf.
But, of course, that is exactly how the genocide machine works. It is
only possible to rob with impunity peoples of their livelihoods, their
lands, their identities and perhaps also of their very existence, if you
can convey images to the world which dehumanize them, demonize them or
present them as enemies of all that is decent and worthy of respect.
That is what I see Mr. McKay doing first to Bruce Clark, but also to
anyone who has any professional involvement with him. There are
unmistakable echoes of the tactics of Joseph McCarthy and his
now-infamous Committee on Un-American Activities here. I can almost see
Mr. McKay propped up on some sort of judicial chair, asking those who
come before him, “Do you now know, or have you ever known, a lawyer by
the name of Bruce Clark? Do you now know, or have you ever known, anyone
who has ever been Dr. Clark’s client?”
Mr. McKay reports that Dr. Clark is responsible for the differences that
divide the elected chief and council from the committee of elders who
are his clients. In advancing that characterization of the internal
politics of Long Lake reserve 58, Mr. McKay cites Peter Di Gangi, my
acquaintance of 20 years, as saying, Clark “ends up creating internal
turmoil. That’s happened at every community he’s gone to... Several
have been convulsed with bitter in-fighting triggered by Clark’s
tactics.”
I can with all certainty report that this characterization is simply
untrue with respect to Long Lake reserve 58. The disagreement between
the elected administrators of Canada’s federal Indian Act and the
hereditary organization that prevails in the elders committee, was
already well developed long before Bruce Clark took forward the latter’s
legal assertions. Thus Mr. McKay simply misrepresents reality in order
to advance his demonizing characterization of Dr. Clark.
Clearly Mr. McKay’s object was to do his part in the journalistic nuking
of one man’s professional career. The fact that he simply fabricates his
account of what is going on in the internal life of Long Lake 58, could
be rationalized as a form of “collateral damage” in what is, in effect,
a very intense form of ideological warfare. Collateral damage, of
course, was the propoganda term introduced by the US government in 1991
to sanitize the description of the killing of Iraqi civilians in the
UN’s war on that country.
I ask if it is possible to imagine a media organization like Southam
presenting such a provocative characterization of the internal politics
of a non-Indian community, without even attempting to do any interviews
with people actually living in that community. I leave it to the
readers to arrive at their own conclusions about why it was that
Southam’s editors felt it permissable to violate the most rudimentary
principles of journalistic ethics, when reporting on the internal
affairs of this Indian community that is over a thousand miles away from
Ottawa.
The allegations aimed at Clark about splitting Indian communities needs
to be put in a broader context. There is ultimately very little that is
democratic about Canada’s Indian Act, which formally places all powers
over the governance of Indian reserves within the authority of a
Minister of Indian Affairs not elected by, nor accountable to, Indian
peoples in any way. The same general pattern also exists in the United
States, a formula of governance guaranteed to divide Indian
communities. This system of indirect rule anticipates that some
Aboriginal individuals will be willing to work within the framework of
funding and law emanating from federal sources. Its non-Indian basis,
however, almost guarantees that there will other principled individuals
in every Indian community who will refuse to collaborate formally in any
way with the very institutions of their own colonization.
In the United States especially, the development of systems of indirect
rule on Indian reservations proved to be the model for propping up
friendly right-wing dictatorships in Latin America and, later, in the
Arab oil shiekdoms of the Middle East. In all these regimes, the police
have broad powers to repress dissent and the media are heavily
censored. Moreover, the real essence of government is in the
cultivation of patronage networks which guarantee that significant
influence is monopolized by those who agree with the dominant system of
economic and political relations that supports the rule of the power
brokers at the very top of the hierarchy. After all, the governance of
any empire depends on cultivating collaborators among the colonized
groups-- collaborators who derive personal wealth and favours from
seeming to legitimize and enforce the prestige of those who dominate the
life of the empire’s metropolitan centres.
To understand this way of seeing Indian Country, it is necessary to make
some reckoning with the concept of social class among Native people.
Such a perspective is almost entirely missing from the kind of reportage
favoured by huge private media conglomerates like the one behind Mr.
McKay’s report. Media giants like Conrad Black’s Southam chain don’t
want to draw attention to the vast inequities of wealth and power that
such an organization embodies, defends and perpetuates. In a world
where about 500 billionaires own about half of everything on the planet
there is to be owned, the huge and growing gaps that separate a small
entitled minority from a vast disempowered and dispossessed minority,
rarely come up for scrutiny. Instead, we are fed misinformation like
Paul McKay’s commentary on the disbarring of Dr. Clark, which I would
argue is well calculated to confuse rather than facilitate informed
public discourse about the real nature of the most profound divisions in
our society.
All these forces meet with a vengeance on most Indian reserves and
reservations in North America. All of them have been legally set up as
little colonies of federal authority with a dominant class who generally
have made the existing regime work well for them as individuals. Let me
not fall into an abyss of sweeping generalization here. Let me be
clear. There are many good, decent, hard working, honest and
conscientious Aboriginal men and women in Canada and the United Stated
who have done their best, against great odds, to make a range of
notoriously bad federal laws and institutions work to the advantage of
their people.
But there are others who don’t fit this mold. The notorious Chief Dick
Wilson on the Pine Ridge Reservation, for instance, had no scruples in
the mid-1970S about actually having AIM dissenters in his own community,
Sioux or not, literally killed for opposing his corrupt,
federally-sanctioned regime. While the Dick Wilson regime was an
extreme example of what AIM used to call a Vichey Indians, or Hang
Around The Fort Indians, or Apple Indians-- his style of so-called
leadership was not a complete aberration.
There can be no thoughtful discussion concerning Indian Country today
without some acknowledgment of the existence on some reserves and
reservations of entrenched little dictatorships, where one faction
manages to monopolize so completely control of federal monies that they
are in a position to repress their own people and prevent any viable
alternative governments from arising among them. So too are the
political organizations which represent Indian bands at the regional and
national levels prone to this kind of abuse.
There again, however, it is important to acknowledge and emphasize the
achievements of some Indian politicians who made the best of a system
where the colonizing society jealously retains ultimate control over
funding mechanisms. One such giant who comes to mind is George Manuel,
who led in the 1970s the National Indian Brotherhood in Canada. A
crucial part of the external control mechanisms of Indian politics, is
that federal officials ultimately retain the power to decide, for
instance, what Indian litigation will make it into court and what groups
will be left spinning their wheels, without the resources to hire, for
instance, a Stuart Rush or a Peter Di Gangi.
So this little lesson in history and political economy forms the
necessary background in order to judge the tremendously harsh
allegations marshalled by Mr. McKay and his informants against Bruce
Clark as an agent of unnecessary divisions in Indian Country that that
have at their root nothing buts his misguided ego. In seeking to defend
himself from these allegations, Bruce Clark wrote as follows in a letter
to The Ottawa Citizen. In true Pravda-like fashion, the Southam paper
declined to publish Dr. Clark’s reply to Mr. McKay’s unflattering
article.
In referring in his letter to the allegation that they divided Long Lake
58 “just like clockwork,” Clark writes, “I did not introduce the
conflict into native society between the Indian Act system and the
native traditionalists. The federal government introduced the conflict
over a century ago. All that I have done is to identify for the
traditionalists in native society, the newcomers’ own international and
constitutional law that establishes the criminal character of the
premature application of the Indian Act to arguably unceded Indian
territory.”
McKay quotes Peter Di Gangi further as saying of Clark, “He’s a
dangerous item... He’s bad for public optics” Then Mr. McKay cites one
of his many unattributed sources, detailing perhaps the most serious
allegation of them all in the eyes of his Southam patrons. Clark, we
learn, has “helped to escalate land-claim legal costs in Canada.” Since
these alleged added costs are quite clearly not going to Clark himself,
why aren’t the sharks at the Law Societies urging him on? Or maybe
there’s more to this plot that Mr. McKay has either been able to
ascertain or realize in his own grasp of how his reportage serves the
interests of the Indian business stalwarts he has chosen to interview
and vindicate.
My own characterization of the men and women who, I suspect, Bruce Clark
will continue to represent in spite of the Law Society’s reprehensible
chicanery to deprive the people of Long Lake 58 of their inherent right
to bring forward the legal arguments they want to make, is as follows:
They are mostly trappers. Some are mothers and grandmothers of many
children. Among them are school bus drivers, nursery school janitors,
aunties and uncles. I think it fair to say they are all are people who
are most comfortable and happy living out of doors deep in the bush.
They are mostly quite old but still hopeful, mostly pushed aside but
still trusting... they are the ones behind what Mr. McKay calls Bruce
Clark’s “surprise case on behalf of a dissident native faction in
northern Ontario.”
Perhaps the Indian Act chief and council, who are, after all, mostly the
children of the affadavit signers, will come around. Maybe the elected
people will come to adhere more to the hereditary systems still intact.
The elected people share their elders’ abhorence of the vast clear cuts
and extensive polluting done by big American companies like
Kimberlay-Clark. They take very seriously the news of the trappers that
there are many cancers growing in some of the few animals that are still
hunted - cancers caused as a result of the herbicide spraying to
transform Indian hunting grounds into tree plantations...
monocultures... plundered habitat.
Maybe the whole community will pull together pull together once they see
that chicanery that the Law Society and Southam seems to be attempting,
to cut off the jurisdiction question, to discredit their lawyer as well
as his arguments, to prevent the internationalization of Aboriginal land
disputes not only in Canada put in many other countries as well,
including in Australia, New Zealand, Norway, Mexico, Brazil, India,
Greenland, Russia, Nigeria, and the United States. We are all Kosovo.
VIII
This Court Can Light a Candle for All Humanity to Follow
Mr. McKay’s reference to the comments on Clark’s disbarring by David
Nahwegahbow illustrate just how the issue of Aboriginal and treaty
rights in Canada has almost everything to do with politics and almost
nothing to do with the safeguarding of the rule of law. Nahwegahbow has
deep roots in the Liberal Party of Canada. He comes from the
Manitoulin-Algoma riding in northern Ontario. That district, which has
a large Indian population, was long the home constituency of former
Liberal Prime Minister, Lester Pearson, the winner of a Nobel Peace
Prize and the virtual inventor of Canada’s image as a peace keeper in
situations of international turmoil. David’s parents, I speculate, would
have been part of the group of families that could “turn out the Indian
vote” for the Liberals and for Lester Pearson himself, once Indian
adults were extended the federal franchise for the first time in 1960.
The power to deliver a Canadian prime minister a secure political base
in his home district, is a significant one. It created a network of
powerful political loyalties that continues to this day where David grew
up. Thus I always reject friends or colleagues when they dismiss as
somehow non-Indian or assimilationist the enthusiastic participation of
many Indian people from Manitoulin-Algoma in Liberal Party politics.
Accordingly, it is perfectly natural and legitimate in my estimation for
David Nahwegahbow to bring his strong Liberal background into his
important current job as President of the Indigenous Bar Association of
Canada.
Where I do suspect, however, that David Nahwegahbow allowed his politics
to colour inappropriately his role as an officer of the court, is when
he trivializes the disbarring of Bruce Clark as an act framed by
politics rather than one with grave implications for the integrity of
the rule of law itself. Mr. McKay quotes Nahwegabow as saying that “A
lot of aboriginal people agree with his [Clark’s] arguments, but not
with his tactics... He hurts the arguments in the long run.” What I
interpret this as meaning, is that Nahwegahbow himself basically
believes many of Clark’s arguments are true in law, but because the
controversial lawyer is not popular or well liked in some circles, the
correctness of his interpretations must be subordinated to political
considerations--to what Peter DiGangi calls “public optics.”
This apparent refusal on the part of the Indigenous Bar Association of
Canada to deal with the substantive rather than the merely political
dimension of what has happened, causes me great consternation, not to
mention disappointment with a colleague I have held in high regard.
Moreover, I am saddened by the insinuation which seems to have taken
hold among some Indian lawyers and politicians, that somehow Clark can
be trivialized as a White do gooder who can be brushed aside without
serious consequence so that Indian lawyers can be front and centre in
advancing the Indian cause. This wrongheaded and very parochial
attitude represents a gross miscalculation of what is really at issue
here.
In the final analysis, Clark’s legal crusade is not primarily about
helping Indians. Instead, it embodies the precious efforts of a learned
and passionate proponent of all peoples’ human rights; it embodies an
effort to defend against great onslaughts of injustice the very
integrity of the rule of law itself in a society so prostituted to the
power of money and so confused by the claims of moral and cultural
relativism, that it has lost its objective judicial rudder altogether.
If even a learned jurist such as Clark can be lightly dismissed,
discredited and disqualified from due process for his attempting to
identify the explicit legal infractions commited in the theft of whole
continents and in the accompanying genocide of whole peoples in North
America, how can any genuinely critical person find any real legitimacy
in the judicial process? How can any thinking observer of the
thoroughly politicized and commercialized state of our courts see
anything else other than institutions that have become almost totally
subordinated to the agendas of the rich, who essentially can purchase or
politically finesse the judicial rulings they need in order to
concentrate yet more wealth and yet more power in fewer and fewer hands.
To my way of thinking the exchange in the Supreme Court of Canada
between Dr. Clark and Chief Justice Lamer in 1995 speaks to the abject
failure of the judiciary to provide society with some kind of picture of
the rule of law that rises above politically inspired banalities. In
the exchange which I believe is destined to be immortalized as one of
the most significant moments in the annals of Canadian jurisprudence,
the dialogue went as follows:
“Mr. Bruce Clark...Right now, the world more than any other single
advance needs a breakthrough on the crime of genocide and the crime of
ecocide and I am suggesting that this court can light a candle for all
humanity to follow. Alternatively, it can engage in chicanery and not
address the point. It can soar or it can plummet. There is no in
between... Your jurisdiction is as guardians of the sacred trust of
civilization.
Chief Justice Lamer: Oh my God. I did not swear to that. I just swore
to be a judge and to try to do my best according to the rule of law.
Mr.Bruce Clark: It fell upon you, whether or not you realized it. That
is the duty under which you labor.
Chief Justice Lamer: I must say, Mr. Clark, that in my 26 years as a
judge I have never heard anything so preposterous and presented in such
an unkind way. To call the judges of the Supreme Court of Canada and
the 975 High Court judges accomplices is something preposterous. I do
not accept that and I think you are a disgrace to the bar.”
At that point, the Chief Justice closed off the debate and basically
created the grounds for a gross miscarriage of justice whose full
consequences cannot become entirely clear for many years to come. The
impropriety would later cause Clayton Ruby judicially to reason in his
oversight of one aspect of the Upper Canada Law Society’s disciplinary
proceedings, “We are sympathetic, moreover, to Mr. Clark’s assertion
that the courts have been unwilling to listen to his argument.”
Now the Law Society has tried to arrange it that no judge need ever have
to reckon with Clark’s argument. And the Law Society must live with the
fact that it undertook this action to silence and discredit a legal
theory, even while one of its own most prominent members was quite
explicit in his clarification that the jurisdictional question has still
not received a fair and proper hearing. And any lawyer who might
consider advancing the jurisdictional question would in all probability
be disbarred too, now that the precedent has been established with the
professional disrobbing of Bruce Clark. That is the perfect chicanery
indeed.
Now that NATO is daily bombing Yugoslavia and preparing to send ground
troops into the Balkans to stop the alleged ethnic cleansing and to
apprehend the culprits guilty of war crimes, the prophetic nature of Dr.
Clark’s comments to Chief Justice Lamer are starkly evident. Where are
the judges that can with credibility come forward and convict the
alleged human butchers of the Balkans, when the jurists of both Europe
and North America have repeatedly shirked the reponsibility of
addressing the ethnic cleansing which is present in the very heart and
soul North America’s development since 1492? How can judges from NATO
countries convict war criminals for acts of genocide when the North
Atlantic world, which NATO is charged to defend, has been constructed by
building a monument to the European heritage on the corps of hundreds of
Indigenous nationalities in North America?
Clearly peace-keeper Canada, with our own judge Louise Arbour busily
gathering evidence for some great war crimes trial in the future, has
not counted on the Clark case exploding the Pearsonian myth of Canada.
Complicity in genocide. Complicity in genocide. That is a phrase that
cannot be transformed into some cartoon-like absurdity like the Southam
chain attempted to do by running Mr. McKays piece as a news story... as
a NEWS story.
>From the perspective of First Nations peoples, the images of Europeans
being uprooted from their homes and their ancestral lands is hardly a
surprising one. After all, didn’t many of the waves of migration across
the Atlantic from Europe happen because tyrants and religious wars and
various rounds of ethnic cleansing transformed displaced refugees into
“discovers” and “pioneers” and “first settlers” and “founders” of the
societies originally established in the claims of European sovereigns to
ownership of Indian lands?
The most persistent cause of refugees seeking asylum in the lands of the
North American Indigenous peoples was the enclosure of feudal estates to
create private property and a capitalist juggernaut that displaced
millions of dispossesed, European peasants. The gift of the Statue of
Liberty from France to the United States, to signify the importance to
the world of the latter as the world’s great receiving place for
displaced and dispossessed peoples, is full of striking irony. Whose
freedoms were being sacrificed, so that the European races could be Born
Again and Again in the zone that Frederick Jackson Turner, probably the
most famous and influential historian that the United States has ever
produced, identified as the meeting ground between “savagery and
civilization.”
The almost total disqualification of Indigenous peoples from basic
eligibility for the rights to life, liberty and the pursuit of
happiness, cannot be overstated. The drawing of the map of North
America involved major transactions that invariably disqualified
representatives of the Indigenous peoples from any say whatsoever in
what was to be the fate of themselves, their offspring and their
ancestral lands. Thus the drawing of the map of North America was, like
the drawing of the map of Africa, almost entirely a task done by
Europeans and their descendants to realize primarily European ends.
Indeed, the existence of NATO can be seen as an army of defence to
protect the ill-gotten gains of Europeans by transforming the
development of North America into the greatest and most successful land
speculation the world has ever seen. And to this day, those who have
scored the greatest gains from the primal and continuing ethnic
cleansing that made North America into a veritable extension of Europe,
gaze disbelievingly at any scholar, lawyer or journalist with the
temerity to suggest that this history might have produced authentic war
crimes, still patiently awaiting their day in court.
Consider all the major negotiations that took place in Europe where the
future of Indian lands was determined without any representation
whatsoever from Indigenous North American peoples. In the Treaty of
Paris of 1763, Canada was traded away by France to Great Britain. In
the next Treaty of Paris in 1783, an international border was imposed
along the Great Lakes dividing the new American republic from what
remained of British North America.
By what right did Great Britain hand over to the United States a huge
territory dominated by the Crown’s Indian allies? That question
dominated the relations between the old British empire and the new
American empire until, once again, Indian peoples were betrayed at the
Flemish city of Ghent in the peace settlement that ended the War of
1812. The geopolitical negotiation of the place of the Indigenous
peoples of North America, especially between 1754 and 1814, established
the basic frames of reference for the existing imperial law of
Aboriginal and treaty rights that Bruce Clark seeks to bring forward
into the domestic courts of Canada and the United States.
In ending the War of 1812, Indian nations were once again afforded no
place at the negotiating table, although their soldiers had a large part
in determining the outcome of the defence of Canada from those American
war hawks and Indian fighters who wanted to annex the fur trade
hinterland of Montreal. Among the most celebrated of these Indian
fighters was Andrew Jackson and William Henry Harrison. Their respective
marches to the taking of presidential power in the White House, were
eased and facilitated because of their proven prowess as ethnic cleaners
who rid the United States, the centre of a New World Order, of its
original, Old World possessors of Aboriginal title. That willingness to
be murderously ruthless with the USA’s Indian enemies was for years to
come, one of the best ways to prove oneself worthy for high political
office in the United States.
The list goes on. Napoleon’s sale of Louisiana to the United States in
1803, the extension of the international boundary along the 49th
parallel in 1818, Mexico’s surrender of its northern half, including
California, to the USA in 1846, the extension of the 49th parallel to
the Pacific in 1846, the sale by Russia to the USA of Alaska in 1867,
the sale of most of what is now western and northern Canada by the
Hudson’s Bay Company to the new Crown Dominion in 1869, the adhesion of
British Columbia to Canada in 1871, the adhesion of Newfoundland and
Labrador to Canada in 1949-- all these profoundly-transformative
transactions and more took place with the assumption that the Indigenous
peoples of North America were essentially sub humans, without any
inherent right to a say in the decision about how the lands where they
have lived for thousands of years, were to be reconstituted. The
exception to this rule was Newfoundland, because there the genocide of
the Indigenous Beothuck was absolutely complete long before the
attachment of the so-called “Rock” to Canada. These basic fact of
history needs to be born in mind while NATO bombs Yugoslavia for the
crime of re-adjusting human geography without properly involving all the
land’s inhabitants.
The division of humanity into humans and sub-humans-- a division that
the history of North American geopolitics demonstrates so unmistakably--
continues yet. The abolition of slavery was far from the last episode
in the struggle to gain recognition of the shared humanity of all people
and of all peoples. For instance, the last times that the map of North
America was redrawn to create new polities was in 1988, with the Free
Trade Agreement between Canada and the United States, and in 1994, with
the imposition of NAFTA on lands shared by Canada, the United States and
Mexico. There were no representatives of Indigenous peoples in the
making of these very recent treaties either.
Thus the old precedents continue still of dividing the “real
humans”--i.e. those deemed capable of exercising real sovereignty in
international law-- and the descendants of the sub-humans--i.e. those
Indigenous peoples who were excluded from the making of every major
international treaty governing the partition or consolidation of their
Aboriginal territories by European powers whose members included, in an
ironic kind of way, the United States.
This exclusion continues to be militarily and diplomatically resisted on
behalf of all Indigenous peoples in the Americas by the Mayan-based
Zapatista Liberation Army. The central base of these defenders of all
Indigenous lands, is Chiapas Mexico. Through the Internet, however,
their struggle has been truly joined and internationalized as a global
army of intellectual resistance to the genocidal and ecocidal course of
a neo-liberal totalitarianism so extreme, that even arch-capitalist and
multi-billionaire George Soros has criticized it as lethal to the
survival of what he calls, “open society.” The contemplation of yet
another commercial treaty to standardize property law in all of North
and South America-- once again without any consultation with, let alone
sanction from, the First Nations-- renews the pattern based on the old
imagined dichotomies between what Turner called, in anticipating the
future course of American foreign policy, “savagery and civilization”
The contrast between the response of the international community to the
war crimes of genocide and ethnic cleansing in Kosovo and Rwanda,
vividly illustrates that the continuation of the old patterns described
above. Let these remarks be clearly framed within an unqualified
acknowledgment of the genuine consolation provided by seeing an awful
situation mitigated by the the rapid mobilization of resources to
respond to the humanitarian crisis of the Kosovar refugees. But where
in the Rwanda crisis were there similar images of tent cities rapidly
going up, UN soldiers hugging little children and giving them candy
bars, enormous air lifts to fly fleeing peope out of the ravaged zones,
and military bases being readied around the world to receive the
refugees. The truth that has to be faced, is that the different
responses to the ethnic cleansing in Kosovo and Rwanda has a great deal
to do with the colour of the victims’ skin.
The officialdoms of all the NATO countries, but especially the United
States which was in the best position to do something substantial about
it, failed to respond to the repeated warnings of an imminent genocide
in Rwanda-- warnings delivered repeatedly and with great insistence by
an attentive Canadian general in the field. This failure awaits a real
war crimes hearing, where there should be very broad and high-levelled
charges levelled that deal with many forms of complicity in genocide.
Remember, to know about the act of genocide and do nothing about it,
itself constitutes a violation of section 3(e) of the Genocide
Convention of 1948.
What role might the Upper Canada Law Society be afforded in these
proceedings, for their maladroit efforts to demean and discredit one of
the foremost experts and illuminators in North America of this
incredibly difficult, volatile and complex legal subject? And what of
Chief Justice Lamer’s responsibility for responding to Clark’s
insistence that the world needs a juridical breakthrough on the crime of
genocide, by telling him he was a disgrace to the bar? Who will judge
the judges, given what Clark calls the complicity of the legal
establishment of North America in the crime of genocide?
The imagery emanating from the NATO’s 50th anniversary ceremonies in
Washington on April 23rd powerfully symbolized the emergence of a new
variant of the racist assumptions underpinning the old European
imperialisms. Quoting Lester Pearson, President Bill Clinton predicted
that in the future NATO would break out of its North Atlantic
territorial base to become a global enforcer of the rule of law. Beside
him stood the eighteen other NATO leaders and before him were assembled
their respective ministers, wives and officials. Together the assembly
presented an unbroken sea of White, caucasian faces, hardly the type of
group that could with real credibility and legitimacy advance a global
crusade to rid humanity of its genocidal forces that plague us yet.
These genocidal forces, which found one of their most ruthless
expressions on the moving frontiers of Indian Country in North America,
draw on the continuing influence of the theories of White supremacy--
theories that tend be perpetuated and globalized in the translation of
social Darwinism into the jargon of neo-liberal economics.
To my way of thinking one of the most insidious perversities of this war
is the kind of thing you see on CNN Television network. What is to be
made of live reports of hundreds of thousands, if not millions, of
wrecked lives, interrupted every ten minutes or so to broadcast
commercials for luxury cars and a range of financial services all
promising that the sponsoring company has the future of the world firmly
in hand, and that all you have to do is invest wisely and your risk of
being engulfed by the instabilities of this fast changing-world will
just disappear.
While the commercials speak of one reality, the economic factors behind
ethnic cleansing are kept hidden just as they are when it comes to the
genesis of the same patterns of genocidal history in North America.
Thus we are made to believe that the war crime of genocide have
everything to to with religious, cultural and racial differences and
nothing to do with the perpetuation of a commercial regime that protects
the outcome of huge episodes of resource theft, on a vast global scale.
This case has been advanced with particular force by Michel
Chossudovsky, an Economics Professor at the University of Ottawa. He
argues that what we are seeing in Yugoslavia is largely the result of
conditions put on the country by the holders of the Balkans’ collective
international debt. He presents an array of evidence to demonstrate
that the new constitution of Bosnia is almost totally a creation of the
International Monetary Fund and the European Bank for Reconstruction and
Development. For instance, all the elected officials in Bosnia are
subordinate to an overseer, a person who “shall not be a citizen of
Bosnia and Herzegovna or a neighbouring State” and whose real
accountability is not to local citizens but to the bankers who own the
country’s debt.
This radical so-called free market approach, which has blasted aside all
traces of Yugoslavia’s indigenous forms of economic organization, have
helped divide and impoverish the country in, argues Chossudovsky,
horrendous ways. He concludes his article, published electronically on
the web site of the Anti-Facist Forum, as follows, “At stake in the
Balkans are the lives of millions of people. Macroeconomic reform there
has destroyed livelihoods and made a joke of the right to work. It has
put basic needs such as food and shelter beyond the reach of many. It
has degraded culture and national identity. In the name of global
capital, borders have been redrawn, legal codes rewritten, industries
destroyed, financial and banking systems dismantled, social programs
eliminated. No alternative to global capital [neo liberalism], be it
market socialism or national capitalism, will be allowed to exist.”
This insistence on the destruction of indigenous economies in the name
of the commercial progress of some Brave New World Order, is not unlike
the Faustian bargains often put to Aboriginal peoples in North America.
Like some would argue the Nisga’a Indians of British Columbia are now
being asked to do, First Nations peoples in Canada and the United States
have often been presented with legal documents, essentially asking them
to sanction their own extinguishment and subjugation. The authorities of
this New World Order centred in the United States often tried to
prohibite First Nations from entering into any kind of contract, other
than what Bruce Clark calls “gun-to-the-head treaties.”
These so-called agreements were often engineered to present the fiction
that Aboriginal representatives had sanctioned the extinguishment of
their Aboriginal title. If Professor Chossudovsky is correct in his
characterization of the Bosnian constitution which emerged from the
Dayton Agreement in 1995, the citizens of the Balkans are being
gradually forced into accepting a new variety of gun-to-the-head
treaties, that essentially extinguishes their democratic rights of
self-determination to the higher authority of global capital. This
economic process has long been the legal hand-maiden of ethnic cleansing
and genocide, North American-style.
IX
A Confederation of Equals; A Proud Confereration
of Mutual Trust and Respect
That brings me to the conclusion of my effort to draw the connections
between the disbarring of a Canadian lawyer, the media coverage of this
event, a war between NATO and Yugoslavia, and the long history of
evasion of any legal responsibility for the genocide and ethnic
cleansing that are so integral to the way North America has developed
since 1492.
In the April 10 edition of The Globe and Mail, Marcus Gee wrote an
editorial where he remarks with stark horror that NATO has essentially
initiated a war whose underlying justification is the doctrine of the
self-determination of peoples. This principle was given formative
articulation in 1918 by the US President Woodrow Wilson. Gee writes,
“While other wars were fought to defend national sovereignty, this one
is being fought to overrule it... If it becomes a principle of the
Western powers to back self determination with force-- it will mean
oceans of blood.”
Gee’s assumption is that all the peoples of the world who lack their own
nation states will start following the example of the Kosovo Liberation
Army and move towards partition to create their own countries. In my
estimation this prophecy is obviously not well informed by the movement
of many hundreds of distinct Indigenous peoples in North America and
around the world to assert their just place in the global community.
The notion, for instance, that somehow the citizens of Long Lake reserve
58 are intent on partitioning a portion of Canada to assert their
sovereignty in that way, fails totally to grasp what Bruce Clark’s
clients are asserting.
Essentially Canada and the United States have been organized in ways
that exclude Long Lake 58 and hundreds of other Aboriginal communities
much like it, from any substantial role in deciding as distinct peoples
how their ancestral lands are to be developed and how the nation of
Canada will be organized and renewed. Thus the recognition and
affirmation of the inherent rights of peoples to self-determination, a
principle already long affirmed in many broadly-sanctioned UN covenants,
could be realized through the institutional reshaping of many existing
nation states rather than through the blunt geopolitical instrument of
partition.
This innovation cannot be achieved through domestic laws and
institutions alone. It will also require the creation of new kinds of
international agencies to see that certain standards are maintained
globally in balancing the rights and responsibilities of Indigenous
peoples with recognition due to the holders of other kinds of titles and
jurisdictions in Aboriginal lands, however those may be defined. This
change will involve a shift in perspective that respects the principle
that different peoples can exercise overlapping forms of sovereignty in
the same territory. New legal constructs of land tenure will be
required to advance these ideas, and to insert into the monocultural
global banking system some new strains of pluralism and a return to
first principles that recognize the capacity of local commumities to
some say in determining the rules for their own economic
self-determination..
The alternative, partition upon partition upon partition, is in my
estimation horrific enough to stimulate a concerted global movement
finally to rise to the most authentic opportunities ushered in at the
end of the Cold War . In the words of Bruce Clark, we have it in our
power to “light a candle for all humanity to follow.” Part of this
renewal of the true spirit of the Enlightenment is to reinvigorate the
waning global commitment made after World War II, to end forever the
horrors of genocide. To the international law of genocide we need to
add a readily enforceable code making ecocide a form of war crime that
can be halted and punished as expeditiously as the principles of due
process allow. No such determination can be viewed as authentic without
some honest grappling in the courts, and ultimately in our hearts and
souls, with what it means to be complicit in genocide or complicit in
ecocide.
Support for such initiatives may come from unexpected sources. In his
farewell address as President in 1960, for instance, Dwight D.
Eisenhower introduced to the world to a new phrase and a new caution.
He warned us not to allow ourselves to become enslaved to the pervasive
influence of what he called, “the military-industrial complex.” As that
powerful complex is asserting now vast coecive explosive power to
enforce, we are told, the integrity of the principle of the
self-determination of peoples, we wonder where this dramatic new turn in
world history is leading us.
In the same visionary speech Eisenhower warned us, “We cannot mortgage
the material assets of our grandchildren without risking the loss also
of their political and spiritual heritage. We want democracy to survive
for generations to come, not to become the insolvent phantom of
tomorrow. Down the long lane of history yet to be written, America
knows that this world of ours, ever growing smaller, must avoid becoming
a community of dreadful fear and hate, and to be, instead, a proud
confederation of mutual trust and respect. Such a confederation must be
one of equals. The weakest must come to the conference table with the
same confidence as do we, protected as we are are by our moral,
economic, and military strength. That table, though scarred by many
past frustrations, cannot be abandoned for the agony of the battle
field.”
I conclude this essay with Eisenhower’s final words as president, where
he implored his listeners, as Woodrow Wilson had done before him, to
find the courage and strength to forge a confederacy of peoples, large
and small. “We pray,” he asked, “that peoples of all faiths, all races,
all nations, may have their great human needs satisfied; that those now
denied opportunity shall come to enjoy it to the full; that those who
have freedom may experience its spiritual blessings; that those who have
freedom will understand, also, its heavy responsibilities; that all who
are insensitive to the needs of others will learn charity; that the
scourage of poverty, disease, and ignorance will be made to disappear
from the face of the earth; and that in the goodness of time, all
peoples will come to live together in a peace guaranteed by the binding
force of mutual respect and love.”
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