Wabanaki homelands, from ancient times to present day.
Map: arcgis.com
Wabanaki homelands, from ancient times to present day.

The Abenaki Nation has collective rights in their unceded homelands of Vermont

Canadian Bill C-53 would undermine Indigenous fundamental rights and sovereignty

Jessica M. Dolan earned her Ph.D. in anthropology at McGill University, with a specialization in environment and Indigenous studies. She has worked for Indigenous communities on both sides of the Canada-U.S. border for the last 16 years, researching Indigenous environmental philosophy, history, and governance - first as an academic and then as an employee of Indigenous governments, non-government organizations, and universities.  She is currently a postdoctoral fellow at the University of Guelph.

Rich Holschuh, the chair of the Vermont Commission on Native American Affairs, recently published an opinion piece ["AFN's rationale concerning C-53 has implications of political overreach in Vermont," VtDigger, Jan. 11] alerting Vermonters about the Assembly of First Nations (AFN) statement on a proposed Canadian law, conflating the AFN with the Indian Act and characterizing it as an apparatus of the colonial federal government.

Both in his writing and during his recent talk ["Vt. Abenaki talk about controversy over legitimacy," News, Jan. 31], Holschuh supported this bill - C-53 - by saying that without it, federally recognized tribes and First Nations in Canada may have "overreach" into Vermont - because the Abenaki nations of Odanak and Wôlinak are supported by the AFN.

Holschuh's views are inaccurate on multiple points and dangerously mislead Vermonters who do not have a background in Indigenous history and governance, while at the same time they advocate for an Indigenous termination policy.

Here's why.

* * *

The Assembly of First Nations (AFN) is an assembly of chiefs and political leaders of First Nations in Canada that is structured like the general assembly of the United Nations and advocates for protection of Indigenous treaty rights and sovereignty in the areas of health, education, culture, language, and political autonomy.

As an organization, AFN emerged from the National Indian Brotherhood, an organization of Indigenous leaders in the late '60s through the '70s, which lobbied for changes to Canadian federal and provincial policies in support of Indigenous rights and sovereignty.

These organizations have worked with the United Nations Economic and Social Council and the United Nations Permanent Forum on the Rights of Indigenous Issues, among other entities, to fight termination of their nations and advance political and human rights of Indigenous peoples.

Canada's political parties are different from those in the United States. Its government is modeled on the British parliamentary system, with multiple political parties such as the Progressive Conservatives, the Liberal party, the New Democratic Party, the Green Party, and others.

Leaders of the parties become elected when the platform of that party receives the majority of votes in their ridings (electoral districts). In Canada, like in the U.S., there are members of political parties, particularly on the so-called right and center of the spectrum, who believe that the government should be run more "efficiently" - like a corporation.

Thus, there are members of the Canadian government who, through generations, seek to "terminate" the inalienable and inextinguishable Indigenous rights of First Nations and Inuit, through federal and provincial law and policy - to assimilate them into the Canadian population as municipalities.

This racist political orientation is always about money and land. With each generation and each election cycle, we inevitably see politicians who have interest in real estate development, extractive industries, or the like who seek to eliminate the processes and cost of consulting with First Nations about use of their land.

This warrants explanation.

In Canada, Section 35 of the Constitution Act of 1982 outlines a duty to consult and accommodate First Nations. This was a hard-won victory for Indigenous sovereignty and treaty rights, after three decades in the mid-20th century of it being illegal in Canada for Indigenous peoples to hire lawyers to advocate for their own rights in Canadian courts.

First Nations still have to carefully guard and uphold this part of Canadian Federal law, as policy leaders often seek to evade it or find loopholes.

Crown-Indigenous Relations and Northern Affairs Canada, a federal agency, supports the Canadian government's duty to consult, offering two national engagement processes on consultation and accommodation.

Separately, individual First Nations also outline their protocols and ethics for nation-to-nation relationships with Canada, through their own Indigenous laws, ethics, and processes.

It is important to remember that there is always political pluralism within each First Nation, Métis, and Inuit community. Like settler governments, states, and communities, Indigenous peoples have a diversity of political philosophies within their own cultures and communities about governance, development, education, health, and the like.

* * *

So it is inaccurate to characterize the AFN as a colonial apparatus of the Canadian Federal Government or as working through the Indian Act. It is a living body of Indigenous leaders who have varying relationships with Canadian federal and provincial governments and policies, and who lobby for Indigenous sovereignty.

For example, the great Shuswap Nation political leader Arthur Manuel co-chaired the AFN Delgamuukw Implementation Strategic Committee, which developed a national strategy to compel the Canadian federal government to respect the Supreme Court decision on Aboriginal (Indigenous) rights and title.

Manuel wrote extensively about how to make section 35 meaningful and about Indigenous economy and lands. His father, George Manuel, president of the National Indian Brotherhood, worked extensively against Pierre Trudeau's "White Paper," a proposed Indigenous termination legislation during the 1960s.

Similarly, Russell Diabo, a political analyst from the Mohawk Nation of Kahnawà:ke, who has spoken out against Bill C-53, has both criticized the AFN and served within the AFN. The history of Indigenous advocacy through the AFN is far more complex than Holschuh's characterization in his article.

Bill C-53 is the most recent "termination legislation" that attempts to turn First Nations into municipalities, and Indigenous peoples into Canadian citizens, by weakening their status as rights-bearing members of their own nations.

Remember, there is a duty to consult and accommodate First Nations in the Canadian Constitution Act. Federal, Provincial, and Municipal governments must go through additional processes that engage Indigenous governments as separate, rights-bearing, and decision-making entities.

Many political leaders don't like this because it takes time, costs money, and takes away some of their power in decision-making regarding land and development. Many people believe that Prime Minister Justin Trudeau and his liberal party are taking up his father Pierre Trudeau's legacy of his "White Paper" by creating land claims settlement opportunities that are "final," and legislation that effectively extinguishes Aboriginal title, and turns First Nations, Métis, and Inuit into municipalities of Canada.

* * *

Indigenous leaders from across political spectra have for decades criticized the Indian Act, yet maintained that they do not want to get rid of it because it is a record of the settler government's systemic racism and genocide, a map of the Canadian history of attempting to legislate away the existence of entire Indigenous societies.

Indigenous nations do not want to become Canadian or U.S. citizens - they want to uphold and live within their distinct societies, in their homelands.

Indigenous leaders going back through the last century and beyond, back to when Europeans began their settler-colonial battles in North America, have upheld and maintained their Indigenous title, their rights, and their responsibilities to their homelands - all fundamentally inalienable and inextinguishable, because they were never ceded and because they flow intergenerationally through the hereditary lines of traditional governance.

These leaders uphold the treaty agreements and international diplomatic relationships they attempted to negotiate with settler governments, even while settlers violated those agreements for hundreds of years.

Currently, Indigenous leaders have spoken out against Bill C-53 as a form of modern colonization and as another attempt to undermine Indigenous sovereignty and Aboriginal title. They charge that it would create a loophole for the federal government to grant non-historic Métis communities rights to land and to use consultation only with non-historic Métis to represent consultation with all Indigenous peoples.

* * *

It may not be clear from Holschuh's commentary that Indigenous rights are collective, historical, unique, and are inherited through kinship within Indigenous families. They flow from inherent rights of the Indigenous nations who were here first, before European invasion.

Recognition and honoring of these rights on the part of settler societies is not complete and has been decades in the making, since the genocidal invasion of the first two centuries of European settler-colonialism, and then the subsequent 150 years of assimilation policies that were developed by the American and Canadian governments.

Similarly, the Métis Nation in Canada is a historic specific community of French and Cree people around the Red River Settlement in Winnipeg, Manitoba who intermarried, developed a distinct language (Michif), and fought to live as a distinct nation and society, under the leadership of Louis Riel.

The mixed-heritage people who are attempting to form new nations are not the Métis Nation, nor do they have these rights. Suffice to say that Indigenous rights and membership remain historic, unique, and separate from Canadian and U.S. citizenry, hereditary, and sovereign. They should not be conceived as something that anyone can take up if they decide they want to form an interest group and become an independent "nation."

* * *

How does this relate to the Grand Council of the Waban-Aki and Abenaki Nation?

The Grand Council of the Waban-Aki is comprised of the chief and council of the Odanak and Wôlinak nations; they have a relationship with the Government of Canada that is recognized by Section 35 of the Constitution Act, 1982.

The council describes this nation-to-nation relationship as asserted under the historical treaty agreements of the Treaty of Swegatchy (1760), and the Treaty of Caughnawaga (Sept. 15 and 16, 1760). These historic and contemporary nation-to-nation relationships encompass the Canadian portion of their homelands.

However, other historic treaties might apply to the relationship between the Grand Council of the Waban-aki, their peoples, and the U.S. federal government and states of their homelands on the U.S. side of the border.

Those treaties acknowledging Indigenous rights to freely traverse the border and for Indigenous people from the "Canadian" side to live in their homelands are the Jay Treaty of 1794 and the Nonintercourse Act, which encompasses six statutes passed by United States Congress in 1790, 1793, 1796, 1799, 1802, and 1834, which regulate the inalienability of aboriginal (Indigenous) title in the United States.

These acts apply to unceded Abenaki homelands here in Vermont and protect their inalienable and inextinguishable rights and traditional title to their homelands here, regardless of relatively recent state projects to "recognize" people of purported Indigenous descent.

* * *

Advocacy for Canadian Bill C-53 undermines Indigenous fundamental rights and sovereignty, to create further pathways and loopholes for colonization.

This advocacy includes inventing political entities that may impede nation-to-nation relationships, by enabling non-Indigenous people to claim Indigenous identities, and to benefit from Native peoples' hard-won rights, territories, fiduciary trusts, and relationships with federal, state, and provincial governments.

Abenakis from the Canadian side of the border have inalienable, fundamental rights to their unceded homelands in Vermont and New England, which supersede state recognition and jurisdiction and which are, thankfully, recognized and protected by both Canadian and U.S. federal law.

Holschuh's commentary further plays on conservative-leaning suspicions about things coming from Canada, which is also an inaccurate characterization, since there is an equal amount of political pluralism in Canada as there is in the United States.

Holschuh also does not disclose that he himself is benefiting greatly financially, politically, and land-wise from the hard-fought political advocacy of generations of Abenaki and Indigenous leaders across North America - by representing himself as Indigenous.

Spiritual values of relationships-in-place and relationships with other species are great values and practices to embrace no matter what your background is - and Vermonters do.

But placing that appeal above real concerns about Indigenous rights and identity distracts from the generations of hard work on the part of Indigenous leaders and community members to collectively survive and protect their families, cultures, and communities from colonial assimilation and genocide.

I entreat Vermont policy makers to undertake learning about Indigenous rights and governance from diverse sources, as many of the things Holschuh has published in the press and in his recent talk at Living Earth are inaccurate - and actually serve to undermine Indigenous sovereignty and autonomy across Turtle Island (North America).

This Voices Response was submitted to The Commons.

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