Dr. Hall is a past president of the Canadian Alliance in Solidarity with the Native peoples. His forthcoming book, from Oxford University Press, is entitled Bowl With One Spoon: Indian Country and the American Empire of Private Property. He does a regular column of opinion on the radio side of the Canadian Broadcasting Corporation.
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 centre of 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 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 against humanity that the NATO powers will have to address as we strive for some new vision of international law capable of securing peoples as well as 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 hypocrisy 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 blatant, 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 legal practitioner 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 Law Society's decision, "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 Lamer, 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 once 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 was 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 Milosovec "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 totalitarian 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 definitions outlined in the United Nations Convention on the Punishment and Prevention of the Crime of Genocide. This instrument of international law was first ratified in 1948, but was it 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 proven physical and sexual abuse which took place in these institutions, as well as the fact that the whole purpose of the primary purpose of the schools was to teach Indian children to despise and renounce their own Aboriginal 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 Christian residential schools it sanctioned, financed and oversaw, in 1997 the Minister of Indian Affairs Jane Stewart finally apologized, but only to those former students who had 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 described 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.
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 more so, 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 artifices 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 reserves 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 hypocrisy! 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 Nazis. 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 knowledge of the ghastly horrors of that have befallen the Kurds together with the people of Rwanda, East Timor, Tibet, Sudan, Nigeria, Guatemala, Cambodia, and now the Balkans, we must reflect on how unsuccessful we have been in suppressing genocide or in holding those who commit genocide accountable. As we thus leave the millenium 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 atrocities against Indigenous peoples, often by transforming their Aboriginal lands in ways that deprive them of their health, their livelihoods and their lives. "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."
The Kari-Oca Declaration develops many themes given earlier articulation by the World Council of Churches. In 1971 at an international gathering of this ecumenical body, information was presented demonstrating the genocidal repercussions for many Indigenous groups of various types of industrialization. For instance it was explained that the establishment by Texaco of an oil refinery in Ecuadorian Amazonia had resulted in the rapid demise of the Indigenous Cofan Indians of 90% of their population. Reflecting on this type of murderous industrialization, the delegates issued the so-called Barbadoes Declaration asserting that those who turned their backs on violation of the political and territorial rights of Indigenous peoples in the path of this kind of industrial desecration "must be held responsible by default for crimes of ethnocide and connivance with genocide."
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 unaddressed these persistent assertions from and about Indigenous peoples-- assertions which Dr. Clark has attempted to carry forward against great resistance into the domestic courts of Canada and the United States-- what conclusion could be reached other than that there is a vast double standard at work? It would hard not to conclude that the only kinds of war crimes that are really going to be made to count, are those committed against Europeans and their far-flung progeny. What conclusion could be reached other than that genocide committed against Indigenous peoples, or against all brown skinned peoples of the planet for that matter, is somehow more permissible and less of a crime than when ethnic cleansing is directed at White people? Indeed, there is plenty of evidence, especially from Latin America and the Muslim world, that the more usual pattern is for the industrial powers under NATO's umbrella to actually reward and encourage non-White regimes when they engage in genocidal actions directed at non-White resisters of the status quo.
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 judgment 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?
When Columbus arrived in America, there were in the vicinity 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 committed 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 committed 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 aggressiveness 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 Movement. 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 Dakota. 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 sympathizers 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 uninvestigated and unpunished. Meanwhile Leonard Peltier, who was quickly extradited 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.
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 abhorrent words of blatant 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 something 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 criminalized 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 responsibility 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 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.
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 and crimes against humanity. Only if there is some authentic display of consistency can there be any real integrity in courts set up to enforce international laws of war crimes and 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 their own shared complicity in genocide from coming to trial, is, it could be argued, the disbarring of Bruce Clark. This disbarring could be interpreted 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 interest 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 Commission 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 within existing institutions to resolving the several thousand Aboriginal land disputes currently on record.
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 authority 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 in Canada. 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 pesky nemesis 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 Canada to be 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 respect or it's chaos, and the whole system falls apart."
According to Professor Hunter, Chief Justice Lamer has no inherent right to "command" respect, 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 acknowledging 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 re-iterate that the effort to evade dealing with allegations of the domestic judiciary's complicity in genocide and with their alleged inability to render true third-party adjudication on Aboriginal land issues, constitutes very plausible factor in the rendering of a ruling that does, on the surface at least, strengthen the hand especially of Aboriginal peoples like those in BC and Long Lake 58-- peoples who have never been extended the legal recognitions and respect demanded by the Royal Proclamation 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.
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 deployment 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 hysteria 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 spraying 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 instruments 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 spraying incident was rightfully showered with sceptical scrutiny 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 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.
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 usage, 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 abiding 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 Arvol 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 committed 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 propaganda 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 permissible 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 Vichy 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 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 he had divided the Indian community at Long Lake reserve 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 affidavit 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' abhorrence with the vast clear cuts and extensive polluting done by big American companies like Kimberly-Clark. When they wipe themselves with the fluffy, bleached white paper products of this global corporation, who thinks of the ecological devastation created for the Indigenous forest peoples like those at Long Lake 58 in northern Ontario? Moreover, who at Long Lake 58, or anywhere else for that matter, cannot but take very seriously the news from the remaining trappers of that community 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 habitats.
Maybe the whole community will pull together pull together once they see the implications of the chicanery that the Law Society and Southam seem to be attempting. There joint objective seems to be to cut off the jurisdiction question by discredit Dr. Clark as well as his arguments. The basic agenda as always seems to be to prevent the internationalization of Aboriginal land disputes not only in Canada but in many other countries as well, including in Australia, New Zealand, Norway, Mexico, Brazil, India, Greenland, Russia, Nigeria, Guatemala, Ecuador, South Africa, Iran, Turkey, Israel, Chile, Bolivia, China, and the United States. We are all Kosovo.
There is a rather fundamental convergence of interests suggested in the one-two punch of the Law Society of Upper Canada and Southam News to discredit a legal practitioner and thereby prevent the issue of third-party adjudication and the issue of complicity in genocide from surfacing as a serious constitutional questions in North America. While Bruce Clark has devoted his career to efforts to force some sort of reckoning with the genocidal results of violations of Aboriginal rights in international, imperial, constitutional and natural law, Professor Noam Chomsky has devoted great enterprise to the task of empirically demonstrating that the directing leadership of the mainstream media of North America is also guilty of many crimes, including, most prominently, complicity in genocide.
The great case study developed by Professor Chomsky to demonstrate his thesis was a comparison of the coverage of the horrible reality of genocide in Cambodia as committed by the communist regime of Pol Pot and the genocide of the Indigenous peoples of the former Portuguese colony of East Timor by the American-backed regime of President Suharto in Indonesia. Among the fullest discussions of this comparison are in Manufacturing Consent: The Political Economy of the Mass Media, which Professor Chomsky wrote along with Edward S. Herman. The comparison also figures prominently in a Canadian documentary film on Professor Chomsky, also entitled Manufacturing Consent. On the details of the genocide in East Timor, see Chomsky's East Timor and the Western Democracies, published in 1979.
The basic conclusion of this research, which focused especially on the amount and type of coverage devoted by The New York Times to the roughly concurrent outbreak of war crimes and crimes against humanity in Cambodia and East Timor, was that the media devoted huge attention to the former and very little attention to the latter. The overwhelming contrasts in the quality and quantity of coverage, argued Professor Chomsky, demonstrated a very clear bias that had the basic effect of shaping the main outlines of public opinion to correspond with the larger outlines of American foreign policy.
Thus where communist perpetrators of genocide were widely publicized and properly condemned for their crimes against humanity, very little attention and criticism were directed at the Indonesian perpetrators of genocidal assault on the East Timorese. Moreover, a strong sort of sanction seemed to be in effect, preventing the clarification of just how much the USA was implicated in the genocide by virtue of the financial aid and military assistance rendered to those Indonesian forces devoted to destroying, demoralizing and subjugating the Indigenous peoples of East Timor. The mainstream media's failure to bring to light the fundamental dynamics of these war crimes and these crimes against humanity, Professor Chomsky characterized as a very clear instance of "complicity in genocide."
The points of convergence between the theoretical work of Dr. Clark and Dr. Chomsky on the international law of complicity in genocide, points to the close linkages of the judiciary and the media in facilitating those processes that lead to outcomes where whole groups become so dehumanized that they can be assaulted, displaced or even killed with impunity. There is need for much more research and investigation into the nature of the connections, both formal and informal, between those who interpret and enforce the law and those interpret events for society through the media of mass communications.
One of the most obvious places to start such research would be in clarifying the nature of the relationship between the propaganda ministry of Joseph Goebbels and the judiciary in the Third Reich. In commenting on January 16th, 1996 on case of Carl von Ossietzky, the winner of a Nobel Peace Prize who was imprisoned in Nazi Germany for opposing as unconstitutional some of the government's racist actions, a commentator at The New York Times commented, "The German judicial system has never faced the facts of its role in the Nazi period.... The judiciary considers itself a nonpolitical branch of the Government and has never looked self-critically at what it did in the service of an unjust regime." While editors and the publisher of The New York Times would never go as far as characterizing themselves as nonpolitical, this influential media company apparently shares with the German judiciary it criticizes an inability to address seriously the kind of allegations brought forward by Professor Chomsky.
The question arises, then, of whether or not it is conceivable that any private or public media company could ever be charged or convicted with the crime of complicity in genocide, for ignoring or for failing to bring to light events such as those which transpired in East Timor? Could other kinds of companies more directly implicated in genocide, face similar charges. An example that comes to mind, for instance, is the role of the Shell Oil Company in the early 1990s in the destruction of the territories of the Ogoni peoples. The effort to cover up this ecocidal crime against humanity was that Ogoni activist Ken Sara-Wiwa and others were executed by the Shell-sanctioned military regime in Nigeria. The real nature of the crime for which these activists were executed, was their success in drawing world attention to the genocide and ecocide accompanying the industrial exploitation of the oil and gas resources beneath Ogoni lands.
There are very clear and pervasive patterns of industrial destruction presently pursued largely by global corporations whose operations are systematically destroying the viability of Aboriginal economies and communities throughout the world, but especially in places such as Nigeria, the Canadian North, the Amazon rain forests and, for that matter, all the world's stands of old growth forests. If there are no significant ameliorative changes in the global rule of environmental law, the fate of the North American buffalo is the fate of these forests and the vast array of biodiversity that their variegated habitats support. Is it conceivable that the human and corporate individuals responsible for the genocidal effects on Indigenous peoples of this kind of activity, could ever be held subject to the terms of the Convention for the Prevention and Punishment of Genocide? Is it possible a similar fate might ever be delivered on the implicated media conglomerates, given that the continued ecocidal destruction, with all their killing effects on Indigenous peoples, depends in large measure on the generation of those kinds of communications "optics" needed to prevent the mobilization of negative kinds of public opinion?
The definition of genocide as formalized in the Genocide Convention was narrowed considerable from what was first adopted by the United Nations in 1946. Furthermore, the governments who authored and ratified the convention opted to retain most of the authority for enforcing this most basic provision of international law. The enforcement provision of the Convention reads as follows: "Persons charged with genocide or any of the other acts enumerated in Article III [including complicity in genocide] shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction."
Thus there is nothing in the Genocide Convention to preclude its terms being applied either to private individuals or to corporations. The question of how the measure would be enforced, however, was purposely left vague and the bias of control is tipped towards the domestic control of national governments. Nevertheless, the Genocide Convention does hold out a vague possibility that its terms could in the future be given the power of strong teeth through the creation of some sort of undefined, international court.
In spite of the relative weakness of the content and enforceability of the Genocide Convention, it remained too menacing to many interests in the United States, who collectively conspired to prevent their government from ratifying this most rudimentary instrument of international law until the dying gasps of the Cold War in 1989. Revealingly, one of the most powerful associations to lobby the American government against ratifying the Genocide Convention, was the American Bar Association. This fact alone, in my estimation, affords added weight to Dr. Clark's assertions that it is what he calls "the legal establishment," who bears the biggest vested interest in seeing that the legal issues of complicity in genocide are not raised or addressed in the domestic courts in North America, or in any other courts for that matter.
The joint criticism of the US government and the American Bar Association of the Genocide Convention is instructive. Both maintained that the definition of genocide should have included the phrase, "with the complicity of government." The inclusion of this phrase would have locked the process of judging the crime of genocide even more fully than it already is. Essentially, what the US government and the ABA wanted was to assure that governments retained the responsibility to decide for themselves the extent to which they would, or would not, be held guilty of genocide. Any such notion, of course, entirely offends the principle of third-party adjudication that is so central to Dr. Clark's analysis. Moreover, as the country where many of the world's global corporations were and are headquartered, the effort to frame the crime of genocide within the responsibility of governments alone, would essentially free the corporate clients of the members of the American Bar Association from any potential that their activities would fall within the orbit of the Genocide Convention.
The records of the Congressional hearings when the question of whether or not to ratify the Genocide Convention are instructive. As one witness, a Mr. Deutsch, explained to Senator Fulbright in 1971, "If somehow or other after Hiroshima we had lost that war, if you can conceive of a hypothesis of that sort, there isn't the slightest question in my mind that there would have been a Nuremberg in reverse, and that would have been treated as genocide."
If as Professor Chomsky and Edward Herman argue, the media must manufacture consent to prepare they way for the commission of war crimes and crimes against humanity, the other side of this equation is the manufacturing of contempt. In November of 1995 in The Canadian Forum, I tried to work through these ideas as I reflected on the media reports of the standoff at Gustafsen Lake, which I had seen flowing for a number of weeks from the RCMP briefing sessions at place called 100 Mile House. In an article entitled, "Manufacturing Contempt," I remarked on the tightly controlled nature of the police accounts of events alleged to be happening in a restricted zone many miles away from where reporters were gathered. I wrote, "The televised daily briefing sessions from the media centre at 100 Mile House reminded me of CNN's chillingly sanitized coverage of the Gulf War [in 1991]. The 'lessons' of the Vietnam War and Oka, it seemed, were being busily employed by the men in uniforms to prevent, if possible, the press from reporting on 'the enemy' as full-fledged human beings with their own story to tell: don't let the public see the complexity of the ethical issues behind the show of weaponry."
In his report on the disbarring of Bruce Clark, Paul McKay began the process, knowingly or not, of extending the manufacturing of contempt to Bruce Clark's new clients at Long Lake reserve 58. By simply characterizing them as "militants," without giving them any opportunity to represent themselves in their own words, the Southam reporter began the process of dehumanization that is the necessary prelude of stripping people of their dignity and their human rights, including their right of due process and a fair hearing in a court genuinely capable of rendering third-party adjudication.
Obviously the scope of this journalistic assault is on a miniature scale compared to the extent of the violations of human rights and of international law happening on various sides of the conflict in the Yugoslavia. Let it be remembered, however, that the necessary prelude to many of inhumanities being dispensed in the Balkans was the work of journalists, pundits, academics and TV producers who prepared the psychological environment necessary to the actual implementation of "ethnic cleansing," or, for that matter, for the daily, video-game style bombing of the vital infrastructure of a sovereign country.
Thus I think it fair and appropriate to raise for consideration the dehumanizing intent of Paul McKay's Southam report on the disbarring of Dr. Clark, as I conclude this section with a reference to the seminal work of Robert Davis and Mark Zanis, which first appeared in 1973. In a publication entitled, The Genocide Machine in Canada: The Pacification of the North, they wrote, "Today, fewer men and women grapple in hand to hand combat, sweat and blood pouring from them, as they kill. More often buttons are pushed and manuscripts and reports are typed. Acts of genocide become polite and clinical."
Mr. McKay's reference to the comments on Clark's disbarring by David Nahwegahbow, President of the Indigenous Bar Association of Canada, illustrate just how the issue of Aboriginal and treaty rights in this country 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 contributed to the creation a network of powerful political loyalties that continues to this day where David grew up. During the years I spent in and around the Manitoulin-Algoma riding, the orientation of the local Indian communities to partisan politics often came up for discussion. In these exchanges I would usually challenge friends or colleagues when they dismissed too lightly the Liberal-Party enthusiasms on the reserves as somehow "non-Indian" or assimilationist. The issue, however, remains contentious within the Indian Country of Canada. Questions about the Liberal orientation of Nahwegahbow and the rest of the supporting team behind the current leadership of the Assembly of First Nations' Chief Phil Fontaine, was serious enough to defeat the present holder of Canada's top Indian job when he first ran for the position against Ovide Mercredi in the early 1990s.
The Liberal orientation of David Nahwegahbow has thus been the subject of some very harsh, and, I believe, unfair attacks, including that of at least one Indian politician who criticized the Native lawyer and other Fontaine supporters in 1990 as being "too White for me." I do believe Nahwegahbow allowed his political biases to colour inappropriately his role as an officer of the court, however, when he trivialized the disbarring of Bruce Clark as an act framed primarily by issues of personality and "optics" rather than by the need to defend 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 considered to be 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 personal disappointment with a colleague I had previously 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 easily 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 in my estimation 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 committed 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.
I therefore ask David Nahwegahbow and his colleagues in the Indigenous Bar Association of Canada, to give very careful consideration to the implications of remaining complicit with the disbarring of Dr. Clark by the Law Society of Upper Canada. Given what I have seen personally of the way the Law Society seemingly protects the unprofessional antics many of its more dubious members, while it casts aside a principled practitioner who advances against great obstacles a legal argument that has vast implications for the integrity of the rule of law in North America, I find credence in the admonition to "beware of the wolf that smiles." That caution was made by Dr. Clark in commenting on an article entitled, "Supporting the Need for Aboriginal Legal Expertise" by the Upper Canada Law Society's Treasurer, Harvey T. Strosberg.
Commenting on the piece published in the March/April edition of the Ontario Lawyers Gazette, Clark made reference to Mr. Strosberg's "fraudulent premise that there is a clean slate on which to write an alternative definition of the law [of existing Aboriginal and treaty rights]. Clark took particular exception to Strosberg's deceivingly benign self-explanation that, "The Law Society has committed itself at long last to work in earnest with Aboriginal peoples to investigate the best ways to promote positive change, and to invest in new partnerships and ventures with Aboriginal peoples through the legal system and education." The Law Society's treatment of Dr. Clark, especially when seen in the context of the long history of the American Bar Association's lobbying to limit and push back the enforceability of the Genocide Convention, speaks of the bankrupt state of the ethical and professional standards behind such platitudes.
In my estimation, what Mr. Strosberg's proposal amounts to is little more than an invitation to the members of the Indigenous Bar Association to take a prominent place at the trough, where ample political patronage is doled out in the guise of lawyers' fees to those arguing on all sides of the oldest legal issue on the continent. Rather than address the underlying principles of existing Aboriginal and treaty rights upon which the Crown's colonization of British North America was premised, Clark charges that the legal branch of the Indian business is "engaged in a process of fomenting litigation and proselytizing legal education." This lucrative enterprise, he argues, is governed by the dangerous notion that the relationship between First Nations peoples and the laws of Canada can be litigated on a case by case, where the unlimited discretionary power of individual judges is made to substitute for the uniform application of the rule of law which is thereby "trashed."
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 disrobing 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 responsibility 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. McKay's 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 dispossessed, 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. Vice-President Al Gore drew on this symbolism, when he announced in front of the Statue of Liberty that the USA would open its gates to give asylum to tens of thousand of Kosovar Albanian refugees. 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 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 people 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 seemingly limitless range of financial services? Most of the ads for financial services-- messages that more and more seem to dominate the paid announcements on the privatized airwaves of commercial broadcasting-- promise 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.
The reporting on CNN took on a particularly paradoxical tone when frequent reports were emanating from Belgrade that the television stations along with their personnel had just been hit with NATO bombs. Then the talking heads were introduced to explain to the global audience that the these broadcasting installations were integral to Slobodan Milosevic's propaganda network. What are we to make of the apparent unwillingness of the CNN reporters to reflect even for a moment on the possibility that their own employer is also an agency of wartime propaganda? That propaganda, it is true, tends to be mitigated, for instance, by allowing some spokespeople of the Yugoslavian government various limited opportunities to explain their positions. But there has been virtually no inclination on the part of any of the NATO country's major news agencies to extend to pundits and commentators the opportunity to put forward perspectives such as those which constitute the central ideas and themes of this essay.
While the TV commercials interspersed throughout the war news 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 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 Herzegovina 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-Fascist 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 prohibit 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.
The economic dimensions of what is being done in the Balkans emerged with greater clarity after NATO's 50th anniversary meetings in Washington D.C.. There was talk of remaking post-war Yugoslavia through the imposition of some equivalent to the Marshall Plan, the vast scheme of US-backed aid and restoration whereby western Europe was built up after World War II. Moreover, it was clarified that the countries surrounding Yugoslavia, including Romania and Bulgaria, would be punished economically unless their governments permitted NATO to use these places as staging grounds for some sort of army of occupation that would assure the assimilation of Yugoslavia fully into the neo-liberal structures that essentially deny all peoples and all nations the legal and political levers to exercise any kind of local, economic self determination outside the global structures of standardized property law, including the World Bank, the International Monetary Fund and the European Bank for Reconstruction and Development.
Meanwhile as these plans are made to extend and confirm the identity of what Benjamin Barber has termed as "McWorld," there has never been anything like a Marshall Plan to build up what remains of the Indian Country of the Americas after its citizens have been subjected over many centuries to virtually all of the war crimes and crimes against humanity that have recently been dubbed as "ethnic cleansing." The result has been, for instance, that where Canada regularly ranks as the country rated by the United Nations as being number one when it comes to the overall quality of life. When the focus is shifted to Canadian Indian reserves, however, the people there live in a way that is the equivalent to about country number 47 on the scale, that is about equivalent to Mexico. The ranking is m