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IMPERIALISM, CONQUEST, INDIGENOUS PEOPLES, ABORIGINAL TITLE, TREATIES, AND INTERNATIONAL LAW:
THE OCCUPATION OF BC, IRAQ, AND THE WEST BANK, THE EXTRADITION CASES OF SITTING BULL, LEONARD PELTIER, JAMES PITAWANAKWAT, AND JOHN GRAHAM
March 3, 2004
By Anthony J. Hall
Founding Coordinator of Globalization Studies
University of Lethbridge
In a recent article in the New York Times Magazine entitled “How To Talk About Israel,” Ian Buruma tackles the touchy relationship between language and anti-Semitism. In suggesting a road map for linguistic manoeuvres throughout one of humanity’s most dangerous minefields of triggered weaponry, boiling recriminations and overheated semantics, Buruma details that “It is neither anti-Semitic nor blindly anti-American to point out that the United States could have done much more to stop Israel from humiliating the Palestinians by turning the occupied territories into a kind of Wild East of gunslinging settlers and hounded natives.”(1)
In drawing this comparison between the lawlessness characterizing the frontier expansions of both the United States and Israel, Buruma suggests in a few short phrases the bare outlines of an historical pattern that goes far to explain some of the root dilemmas in many of the world’s most inflamed hot spots. He creates a minimalist sketch depicting how the means and mentality of conquest run throughout the trajectory of history linking European imperialism, American Manifest Destiny, and the Palestinian policies of the United States’ most favoured ally in the Middle East.(2)
The propensity of the world’s sole remaining superpower to prefer conquest and unilateralism over the more demanding requirements of negotiation, multilateralism, and the rule of law was displayed recently in the US-led invasion of Iraq. Many profound issues are coming to light as the government of the United States struggles to draw order from the disruption of war, and from the ruthless tyranny of a discarded former client regime. How, for instance, can a basis of domestic law and order be established in Iraq, given that the roots of any new regime lie in the infractions of international law committed by the occupying powers of the United States and Great Britain? What rights and titles continue to adhere to the people and peoples whose lives form the bridge of continuity leading back to indigenous polities that predate the arrival of both European empire and the current occupation of foreign forces?
As I see it, this second question leads us into the law and politics of Aboriginal title, a concept that I maintain can be broadly applied in venues of international law and global geopolitics. I argue that the concept of Aboriginal title provides a valuable lens of interpretation on history, politics, and law in many settings. It provides a deepened perspective on the apportionment of influence and wealth in a global milieu where the largest plurality of people and peoples have been subordinated under systems of credit and debt, assets and liabilities, empowerment and disempowerment, rooted largely in the genre of colonialism initiated in 1492. In The American Empire and the Fourth World I have grouped and labelled this repressive complex of forces as the Columbian conquests, an expansionary thrust which began with the modern era of globalization in 1492.
I see Aboriginal title and the Columbian conquests as inter-related concepts. The former, if recognized and affirmed, represents something of a remedy or an antidote for the latter. Both ideas have acquired added meaning in a era of increasingly borderless and monocultural capitalism, a time when a single polity is in the process of globalizing the revolutionary forces entailed in the five-centuries- ld process of transforming the Western Hemisphere into the work-in-progress known as America.
The United States emerged from a civil war in British North America that began with a conflict between competing camps of imperialists. One of the central points of contention between these camps was a disagreement over how to incorporate the lands and Indigenous peoples of Canada into the British Empire after the defeat of French imperialism in the Seven Years War. (3) The substance and outgrowths of this disagreement, ones which figured integrally in the emergence of the present superpower from a former superpower, need to be better understood in an era when the United States holds a virtual veto power over virtually any structural change in the architecture of global governance.
The nature of American power becomes especially clear when the focus is placed on those many Indigenous peoples whose configurations of Aboriginal territory and culture are not reflected in the design of the national governments exercising sovereignty over them. Among the Indigenous peoples facing this dilemma are the Ogoni of Nigeria, the Kurds of the Middle East, the Sami of Scandinavia or the many hundreds of menaced Aboriginal societies rooted in the rich biocultural diversity of Indonesia, the Philippines and Malaysia. Like Indigenous peoples throughout the Americas, the oldest polities throughout most of Africa live in nation states whose boundaries more reflect the rivalries of European imperialists than the legacies of Aboriginal history.
Among all such Indigenous peoples, the plight of the Palestinians seems to have emerged as a particularly potent symbol of Aboriginal dispossession and disempowerment. The broad identification of so many citizens globally with the struggle of the Palestinian people for land and self-determination suggests the wide popularity of the notion that the decolonization movement of the 1960s and 1970s did not deliver on its promise of liberation. The experience of the Palestinians serves as a reminder for the majority of the world’s citizenry, whose Aboriginal societies were collectively on the receiving end of European imperialism, that the colonialism of the Earth’s dominant enclaves of power never really ended. While the empires of Europe were dismantled, a new kind of imperial power structure was put in place. Its organs of authority include the World Bank, the International Monetary Fund and the World Trade Organization. These agencies, in turn, are widely viewed as extensions of the tight control of a class of global elites whose power is based in the transnational corporations and financial institutions that arose with the growth to worldwide proportions of the military-industrial complex centered in the United States.(4)
A big part of my motivation in writing The Bowl With One
Spoon, of which The American Empire and the Fourth
World forms part one, is to describe how some of
the constitutional legacies of European imperialism can be invoked to
challenge the legality of some of the current
machination of the informal American empire. The
Royal Proclamation of 1763 is the best example of an imperial instrument
with broad remedial applications in an era when
the world is dominated by the lawless,
laissez-faire empire of a single superpower. As I see it Royal Proclamation
of 1763, in which King George reserved the
interior of North America as an Indian hunting
ground and as a mercantile hinterland of the Canadian fur trade, was the
primary cause of the schism within the British Empire that gave rise
to the creation of the United States. The Royal
Proclamation of 1763 was thus instrumental in
generating the American Revolution, perhaps the most consequential single
event in the entire course of world history up to
this point. The Royal Proclamation essentially
outlawed conquest as an acceptable means of expanding Anglo-American
settlements within British North America. In a power grab of major
proportions, King George III sought to set up himself and his royal
heirs as the sole authority capable of purchasing
Aboriginal title from the peoples indigenous to
the imperial Indian reserve imposed unilaterally on Great Lakes area and on
the eastern half of the Mississippi Valley. In so
doing, King George sought to place control over
the western expansion of the Anglo-American settlements in the
imperial government and, indeed, in the sovereign jurisdiction
invested in his own person.
The Royal Proclamation of 1763 became a symbol of Tory tyranny for some
whigs on both sides of the Atlantic. It helped arouse the antagonisms
that would eventually coalesce in the string of
accusations against King George in The Declaration
of Independence. Some saw in the monarch’s Proclamation proof that
the King was trying to undo the constitutional principles established
by the Glorious Revolution of 1688. Thomas
Jefferson went much farther, countering the
Crown’s recognition of Aboriginal title with a theory stating that
Anglo-American settlers held their own form of
native title. This form of original title he dubbed
“allodial title” in 1774 in a pamphlet entitled A Summary View of the
Rights of British America. The idea of allodial
title, argued Jefferson, went back to the imagined
rights of free Saxons in England before their liberties were supposedly
constrained by an alien Crown in the Norman conquest. (5) In his
theory of allodial title and in his authorship of
large portions of the Declaration of Independence,
Jefferson drew heavily on the writings of John Locke. In Two
Treatises of Government Locke had assigned North American Indians to
the infant stage of humanity. Locke associated
this imagined infancy with a state of undisturbed
nature before the existence of money and before what he characterized as the
improvement of North American lands through the investment
of labour by transplanted English farmers.(6)
There were broad implications for the genesis of international law in King George’s seminal recognition that Indigenous peoples possess Aboriginal titles to their own ancestral lands, titles that cannot be transferred or alienated without obtaining Aboriginal consent in public negotiations. The recognition and enforcement of this principle could yet establish the framework for the attainment of a level of justice in international relations that has yet to be attained, for instance, by the Palestinians, the Kurds, and the Aborigines of Australia. It establishes principles that remain highly contested in British Columbia, one of the world’s pre-eminent testing grounds for the integrated exercise of Aboriginal title within the social organization and political economy of complex, industrialized polities.
Over the course of much of its history, the United States has acted as a force whose actions have pointed against the edification and enforcement of the principle that it is a violation of international law to push forward the unilateral dispossession of Indigenous peoples through conquest. Indeed, again and again the United States has opposed the principle that it is subject to any international or transnational authority higher than itself. It has opposed the proposition that there are any external juridical constraints on its exercise of coercive power to widen its own sphere of ownership, jurisdiction and influence.
This reservation of the power to crush coercively any resistance to its ascent from republic, to transcontinental empire, to global superpower goes right back to the Declaration of Independence. Among the many alleged crimes of King George outlined in it, is the charge that the British monarch “has endeavoured to bring on the inhabitants of our frontiers the merciless Indian savages, whose known rule of warfare is an undistinguished destruction of all ages, sexes, and conditions.” This pronouncement is, to say the least, a bold contradiction of the principles of universal liberty and equality that rightfully constitute the Declaration’s most celebrated ideals. The accusatory reference to the link between North American Indians and King George points unmistakably to the Royal Proclamation’s recognition that the peoples indigenous to the newly-acquired section of British North America hold Aboriginal titles to their ancestral lands-- titles that cannot be unilaterally extinguished or transferred. Those including Jefferson who sought to use the Declaration of Independence to mobilize Anglo-American resistance to British imperial authority countered King George’s qualified recognition of Aboriginal and treaty rights by advancing a form of racial profiling whose effect was basically to criminalize all Indians.
In 1776 the new polity-- the new experiment in human governance-- was ushered into life on the principle that there is no such thing as a legitimate right of Aboriginal self-defence, let alone an Aboriginal right to life, liberty and the pursuit of happiness. In designating indiscriminately all of America’s Indigenous peoples as violent and anarchistic savages who must be placed outside the rule of law, outside due process and outside the framework of universal liberties cited as the very reason for creating the United States, the founders prepared the way for a trajectory of frontier lawlessness whose most recent manifestation is evidenced in elements of so-called War on Terror. The pattern was established that would someday see the West Bank of the Jordan River become the site of a ‘Wild East of gunslinging settlers and hounded natives.” The pattern was established that would someday see the so-called ‘detainees” of the US military base at Guantanamo Bay Cuba put in the same constitutional no-man’s land once inhabited by the incarcerated Geronimo and his captured band of Apache resisters. Like Geronimo and scores of other Aboriginal resisters captured in the American Indian wars, the Guantanamo Bay prisoners have been placed outside the framework of both international and domestic law. They have become the most obvious descendants of the merciless Indian savages referred to in the passage of the Declaration of Independence that made provision for the United States to engage in a perpetual War on Savagery, a War on Terror.
Between 1787 and 1871 the United States seemingly shifted away from the position articulated in the Declaration of Independence. In the Northwest Ordinance and in almost 400 Indian treaties negotiated according to its terms, the US government adhered to many of the principles codified in the Royal Proclamation of 1763. By making the federal authority responsible for waging war on Indian nations or for purchasing Aboriginal titles in ceding treaties, the central government took jurisdiction from the state governments over the process of western expansion. It took over precisely the powers claimed by King George in 1763. This innovation in American federalism invested authorities in Washington DC with the primary imperial role in the construction of the United States as a transcontinental empire. It centralized power in the American capital in a fashion that prepared for the day when the Pentagon, the State Department, the CIA and its related agencies would take over many functions in global governance similar to those once performed by the Colonial Office of the USA’s British imperial parent.
As a politician who came to national prominence based largely on his military reputation as an adept Indian fighter, Andrew Jackson inflicted a great blow to this fledgling tradition of Indian treaty making in the United States. In the 1830s he made Indian removal a central pillar of his presidency. In direct opposition to a pivotal ruling by Chief Justice John Marshall’s Supreme Court, the Jackson administration joined with Congress in pushing forward a policy of ethnic cleansing based on the forced relocation of all Indian groups east of the Mississippi to new homes in the designated Indian Territory west of the Mississippi. In advancing this policy Jackson opposed the federalists and sided instead with states’ rights activists. These proponents of state sovereignty sought and eventually obtained the backing of the US military in forcibly removing in the Trail of Tears several thousand multicultural citizens of the Cherokee Nation from the western frontiers of Georgia.
The broad, continental scope of Jacksonian Indian removal involved the violation of over a hundred Indian treaties, all of which had been ratified by a two-thirds vote of the American Senate. In leading the Protestant lobby opposed to Jacksonian Indian removal, Rev. Jeremiah Evarts presented extensive and detailed analysis of the implications of such a massive transgression of US treaty law. He emphasized that the United States would someday pay an enormous price in terms of negative world opinion for engaging in such brazen disregard for its own domestic laws and for the emerging framework of international law.(7)
In more recent years historian John R. Wunder has made a similar observation concerning the decision of Congress in 1871 to terminate altogether the practice of treaty making with Indigenous peoples within the United States. The decision, which was buried in an Indian Bureau finance bill, involved a resort to the imperative of conquest over the law of Aboriginal title. It embodied an assault on the fragile principles of international relations as advanced by King George in the Royal Proclamation of 1763 and by the authors of the Northwest Ordinance in 1787. According to Wunder, it entailed “a serious modification and violation of international law and a threat to the diplomacy of the United States.”(8)
From 1871 until the present, the US government has based its claims to much of its territory on the doctrine of conquest. In 1987, for instance, officials of the US State Department forwarded the following justification for US jurisdiction over Indians to the United Nations Human Rights Committee. In response to a question posed by several Aboriginal groups, the representatives of the US government answered, “conquest renders the tribes subject to the legislative powers of the United States and in substance, terminates the external powers of the sovereignty of the tribe.”(9) This position re-iterated the central premise of the ruling in 1955, when the US Supreme Court in the case of Hee-Hit-Ton Indians vs. The United States denied that the Indigenous peoples of Alaska retained an Aboriginal title in their ancestral lands. The ruling included a number of references to the jurisdictions said to flow from conquest. “Every American schoolboy knows,” the jurists wrote, “that the savage tribes of this continent were deprived of their ancestral ranges by force.” The treaties before 1871, they ruled, were mere rituals rather than transfers of title to land. It was, they decided, “the conquerors will that deprived [the Indigenous peoples] of their land.”(10)
As I see it, the history of US expansionism in North America and throughout the Western Hemisphere helps provide explanation and context for many aspects of the superpower’s present positioning within the global community. The unilateralism of the United States, for instance, has its deeper origins in the effort to fend off international intervention in the institution of American slavery before 1865. It also has its origins in the effort after the War of 1812 to domesticate Indian Affairs and the closely related policies and processes of western expansion. Indeed, because of the fear that the territorial integrity of many countries might be challenged by the elevation of Aboriginal Affairs to a higher level of transnational concern, the US government has shared with many governments, including those of Canada and Australia, a largely unspoken determination to constrain issues pertaining to the treatment of Indigenous peoples within the confines of domestic law and politics.
The determination of authorities in both the United States and Canada to act repressively in order to constrain issues of Aboriginal title and Indian treaties within domestic confines has been demonstrated repeatedly in recent times. In 1995 in British Columbia, for instance, the Canadian army and the Royal Canadian Mounted Police declared war militarily and psychologically on a small group of armed Aboriginal sun dancers at the Battle of Gustafsen Lake. By their own accounts, Crown officials have admitted that government forces shot at least 77,000 rounds of fire into the camp, whose 18 or so members included elders and children. Many explosive devices, included internationally banned land mines, were tested in the most aggressive government use of armed military force within Canada in the twentieth century. In spite of a slew of wild, politically-motivated allegations of terrorism made against the self-declared Shuswap Defenders, including by BC’s chief law enforcement officer, most members of the sun dance camp ended up facing minor mischief and trespassing charges. The one Defender who refused to abandon the jurisdictional argument which lay beneath the sun dancers patriotic stand, William Jones Ignace, aka The Wolverine, ended up spending 5 1/2 years in federal penitentiary for his conviction for attempted murder. After serving his time the elder, who is now 72 years old, was subjected by the Parole Board of Canada to a three-year gag order, a dubious prohibition on freedom of speech in a country that supposedly honours its Charter of Rights. This gag order was placed on an individual who is probably the most accomplished and knowledgeable speaker on the planet of the Shuswap language, one of the world’s many thousands of Aboriginal tongues whose imminent loss reflects the policies of cultural genocide which have been integral to the unconstitutional regime of the Canadian Indian Act from the beginning of its illegal imposition. The lawyer of Jones Ignace, Dr. Bruce Clark, a devoted scholar who achieved his Ph.D. in Scotland through his completion of a ground-breaking study on the international and constitutional law of Aboriginal title in North America, faced a psychiatric exam, incarceration, leg irons, disbarment, and the full brunt of a media “smear campaign.” The point man of this campaign, the RCMP’s Sgt. Peter Montague, described smear campaigns at the time of the Battle of Gustafsen Lake as a “specialty” of his unit, one which worked in this and other related cases especially closely with BCTV based in Vancouver.
Of this episode a former Attorney General of the United States wrote, “Canada employed all the violence, deception, wiles and corruption learned from five hundred years experience in crushing Indian people.” One of the ironies of the tactics employed at BC’s Camp Zulu, where the Canadian Crown’s Indian fighters based their operations, was that the effort to domesticate and crush the resistance movement ended up internationalizing the Aboriginal title issue in Canada’s westernmost province. In the autumn of 2000 in Portland Oregon Judge Janice Stewart denied the request of the Clinton White House to extradite James Pitawanakwat, an Aboriginal veteran of the Gustafsen Lake conflict. In her ruling, which was not appealed, Judge Stewart referred to the “occupation by the government of Canada” of “sacred and unceded tribal land” in BC. She also referred to “uncontradicted evidence,” which Splitting The Sky, Mervyn Brown and I helped prepare on the request of Pitawanakwat’s federally-provided lawyer, “that Canadian government engaged in a smear and disinformation campaign [in 1995] to prevent the media from learning and publicizing the true extent and political nature of events [in the Gustafsen Lake conflict].(11)
In the Pitawankwat ruling the judge made specific reference to “false affidavits” used as the basis for the “extradition by fraud” of American Indian Movement (AIM) activist Leonard Peltier from British Columbia in 1977. As Peter Matthiessen documented in his monumental work of investigative journalism, Peltier’s removal from Canada and his subsequent conviction is widely regarded as one of the most notorious cases in US history of federal abuse of the American criminal justice system.(12) The details of the case became particularly well known throughout the Soviet Union in the ebb and flow of the Cold War. The episode was one part of a campaign in the United States and Canada to infiltrate and destroy the American Indian Movement, an organization demanding that governments in North America adhere to the international law of Aboriginal title and Indian treaties. Among those killed in the mid-1970s primarily by federally-backed para-military forces were almost a hundred AIM members and sympathizers on the Pine Ridge Reservation in South Dakota. They included Anna Mae Pictou Aquash, a Mik’maq woman from Nova Scotia. The frozen body of this much beloved pillar of AIM’s sovereigntist stand was found in February of 1976. Federal agents decided to cut off her hands to send them for fingerprint identification at the FBI Lab in Washington D.C.. In early February of 2004 after a four-day trial, Arlo Looking Cloud was convicted in Rapid City South Dakota for “aiding and abetting” in the murder of Anna Mae. Aquash’s real killer, federal authorities in the United States charge, is John Graham, an AIM member whose home is in Yukon and who is presently under house arrest In Vancouver.
The Peltier and Pitawanakwat cases help establish the legal and political context for the current request that John Graham should be extradited from BC to the United States to face charges that he murdered Anna Mae Aquash during the height of the virtual civil war at Pine Ridge. The John Graham case is extremely important because it draws attention to an array of covert and often illegal federal tactics employed in both the United States and Canada to destroy AIM and its related organizations. One of the objectives of this destruction was and is to stop the international campaign to publicize government and corporate violations in North America of both Aboriginal title and Indian treaties. The John Graham case serves as a reminder that the Indian wars of the Western Hemisphere never really ended; that the rule of state terror by conquest still takes pre-eminence over national security through the rule of law when it comes to dealing with the most militant wing of the First Nations sovereignty movement. The Graham case serves to point how AIM was unrelentingly infiltrated and destabilized by federal agents who succeeded in creating a climate of such pervasive fear and distrust in the organization that even Anna Mae became subject to suspicions that she might be collaborating with the FBI’s Counter-Intelligence Program, the notorious COINTEL-PRO. In outlining their position on the John Graham matter, the Vancouver Chapter of the Native Youth Movement pointed to the COINTEL-PRO’s campaign “to create paranoia and division, to turn members against one another (just as the FBI had done with the Black Panther Party).” NYM Vancouver went on to say in their press release of 7 February, “We cannot say with certainty that John Graham did—or did not—kill Anna Mae. We have neither the information nor witnesses at our disposal to make such a decision.”
The Vancouver chapter of the NYM have added their voice to the growing chorus who are absolutely firm in their conviction that John Graham must not be sent to the United States to face a travesty of justice like that handed out to Leonard Peltier , or, for that matter, to Sitting Bull. Sitting Bull was not successful in receiving the kind of asylum in Canada that was later granted in the United States to James Pitawanakwat. Because of the Crown’s unwillingness to allow the Indian hero of the Battle of Little Bighorn to make a home in Canada’s Cypress Hills, the great Sioux leader was eventually killed by a Sioux police agent in the course of the Ghost Dance resistance that culminated in the Seventh Cavalry’s revenge at Wounded Knee in 1890 for the defeat it suffered at Indian hands in 1876. The inability of the US criminal justice system to deal objectively and fairly with any aspect of its own role in Indian fighting, past and present, was demonstrated clearly in the final days of the regime of President Bill Clinton.(13) In the period briefly before federal power was handed over to the regime of George W. Bush, several hundred FBI agents conducted an aggressive demonstration outside the White House to demand that the outgoing American president not grant clemency to Leonard Peltier. This FBI demonstration, the first of its kind in the entire history of the federal police force, illustrates the extreme politicization of the criminal justice system in the United States when it comes to keeping the cover on the dynamics of modern-day Indian fighting. It illustrates that when it comes to issues involving Aboriginal title and Indian treaties, there is no such thing as a separation between the powers of law enforcers and those of law makers. There is no real separation of power between police, judges, and politicians when it comes to the oldest and most complex human rights issue in the Western Hemisphere. (14) Under these conditions, it becomes a classic test of the quality of Canadian sovereignty to see if it is possible to get to the bottom of the John Graham affair in our own country. If Graham ends up in the United States, I for one will take it as a very clear sign that Canada has become devoid of real sovereignty, that our once somewhat self-governing country has become a thoroughgoing colony of the superpower to the south.
The reality that the Indian wars of North America never really ended is underlined by the themes of continuity running between the extradition cases involving Sitting Bull, Leonard Peltier, James Pitawanakwat, and John Graham. The location of their cases in the matrix of international treaty law points to the contrasting constraint within domestic confines of Aboriginal title, Indigenous peoples and their treaties with other polities. It points to the systematic abuse of the most marginalized constituencies in the Americas. From to dark circumstances surrounding the overthrow of Haiti’s Jean-Bertrand Aristide to the assassination with US-complicity of Archbishop Oscar Romero in El Salvador in 1981, the champions of liberation theology have figured prominently among those who have faced notorious obstructions in their quest to defend the poor. The modern-day Indian wars within North America are reflected on an inflated scale throughout many parts of so-called Latin America, where, for instance, over 100,000 Mayan Indians were murdered in Guatemala by a right-wing puppet regime answering to the government of US President Ronald Reagan. The extension of the Indian wars finds global expression in a long series of regime changes through US-backed coups in, to name only a few, Iran, Guatemala, Congo, Indonesia, Chile, and Haiti. Now the so-called War on Terror renews the power of the American military-industrial complex that affirmed its global dominance over the course of the Cold war. This trajectory of police state activism connects the internal assault on AIM in the 1970s to the recent occupation of Iraq. The lead up to that occupation saw at least 10 million global citizens take to the streets on February 15, 2003, in an effort to pre-empt the so-called pre-emptive strike of the Bush and Blair regimes. The invasion of Iraq without UN sanction points to the extreme unilateralism these days of the US government. President Bush’s positions are in stark contrast to those of former US President Woodrow Wilson, who, with all his inconsistencies, did present a vision of a world parliament in 1917 based on the ideal of the self-determination of all peoples.
The US government failed to join the League of Nations, a
rejection that helps to remind us of the deep
historical roots of those attitudes of discomfort within the
superpower at any approach to world order that would situate the
United States within a multilateral framework of
global law. In the post-World War II era, for
instance, the US government failed to ratify the Genocide Convention until
1989, over 40 years after most countries ratified
this instrument designed to fix legal
accountability for the most appalling of all crimes against humanity. What,
it might be asked, is the relationship between the
crime of genocide and the extinguishment of the
political economy of Indigenous peoples through the unilateral taking and
remaking of their lands without negotiation or consent? Without
negotiation or consent
-- without adhesion to the principles constitutionally codified in the Royal
Proclamation of 1763-- what else other than conquest is the
unilateral appropriation of Aboriginal
territories? As I see it, it is the prohibition on conquest
as a legitimate instrument of international relations that stands as
the real principle presently as issue in the
ongoing negotiation of about 50 modern-day treaties in
British Columbia.
In the Declaration of Independence King George was demonized along with his
allies, the so-called merciless Indian savages, for the complex of
alliances that began to develop between 1763 and
1776 from even an incomplete and half-hearted imperial application of the
principles of the Royal Proclamation. The effects
of this paradoxical constitutional instrument continue to be felt in Canada,
in, for instance, the recent creation of Nunavut and in the making in
British Columbia of the Nisga’a Treaty. The effect
of gradually applying the Royal Proclamation of
1763, however imperfectly, to the political evolution of Canada
over more than two-and-a-half centuries has been to ease and modify
some of the most lethal features of colonization.
The effect has been to contribute to the
discrediting of the imperatives of conquest, ethnic cleansing, and
assimilation in the process of empire building.
Who can tell what adjustments might occur in US
policy in, for instance, Iraq, Kurdistan, Israel, and Palestine, if the
superpower’s government was to revert back to
adherence to the principles it adopted between
1787 and 1871 in recognizing Aboriginal title as a feature of domestic and
international law? Who can tell what insight we might gain in Canada
into the real dynamics of our relationship with the superpower when we make
it clear to the US government that we refuse to
re-enact in the case of John Graham the farce
attending the removal from this country in 1977 of Leonard Peltier. We
exercise the sovereignty of Canada, therefore,
when we refuse to extradite John Graham. That
refusal establishes the necessary precondition for us to investigate and
arbitrate in Canada the facts that led to the tragic death of a
native daughter and mother, the demise of the
beautiful, articulate, and erudite Anna Mae Aquash.
ENDNOTES
1.Ian Buruma, “How To Talk About Israel,” The New York Times Magazine, 31 August, 2003, p. 33
2.See Conrad Cherry, God’s New Israel: Religious Interpretations of American Destiny (Englewood Cliffs N.J.: Prentice Hall, 1971); Patricia Seed, Ceremonies of Possession in Europe’s Conquest of the New World, 1492-1640 (Cambridge: Cambridge University Press, 1995); Albert K, Weinberg, Manifest Destiny: A Study of Nationalist Expansion in American History (Chicago: Quadrangle Books, 1963)
3.Clarence Walworth Alvord, The Mississippi Valley in British Politics: A Study of the Trade, Land Speculation and Experiments in Imperialism Culminating in the American Revolution, 2 Vols., (Cleveland: The Arthur H. Clark Company, 1917); Jack M. Sosin, Whitehall and the Wilderness: The Middle West in British Colonial Policy, 1760-1775 (Lincoln: University of Nebraska Press, 1961)
4.See, for instance, Stanley Aronowitz, “Global Capital and Its Opponents,” and Heather Gautney, “The Globalization of Violence in the 21st Century: Israel, Palestine, and the War on Terror,” in Implicating Empire: Globalization and Resistance in the 21st Century World Order, Aronowitz and Gautney, eds. (New York: Basic Books, 2003), pp. 65-83, 179-195
5. Thomas Jefferson, A Summary of the Rights of British America (Williamsburg: Clementinarind, 1774), republished in The Papers of Thomas Jefferson, Julian P. Boyd, ed., (Princeton University Press, 1950), Vol. 1, pp. 121-137
6.John Locke, Two Treatises of Government, Peter Laslette., ed. (New York: New American Library, 1965). See Robert A. Williams Jr., The American Indian in Western Legal Discourse (New York: Oxford University Press, 1991), pp. 263-300; Barbara Arneil, John Locke and America: The Defence of English Colonialism (Oxford: Clarendon Press, 1996)
7.Reverend Jeremiah Evarts, Cherokee Removal: The “William Penn” Essays and Other Writings, Francis Paul Prucha, ed., (Knoxville: University of Tennessee Press, 1981). See Prucha, American Indian Treaties: The History of a Political Anomoly (Berkeley: University of California Press, 1994), p. 16
8.John R. Wunder, “No More Treaties: The Resolution of 1871 and the Alteration of the Indian Rights to Their Homelands,” in Wunder, ed., The Range: Essays on the History of Western Land Management and the Environment (Westport Conn: Greenwood Press, 1985), p. 53
9.U.N Document E/CN.4/GR.1987/7/Add.12, 30 September 1987 cited in Franke Wilmer, The Indigenous Voice in World Politics: Since Time Immemorial (Newbury Park: Sage Publications, 1993), p. 58
10. Supreme Court ruling on Hee-Hit-Ton Indians vs. The United States, 1955, cited in Ward Churchill, “The Tragedy and the Travesty: The Subversion of Indigenous Sovereignty in North America, in Contemporary Native American Political Issues, Troy R. Johnson, ed., (Walnut Creek: Altamira Press, 1999), p. 28
11. The first quote is from former US Attorney-General, Ramsey Clark, which appears as the book blurb on the cover of Splitting The Sky’s and She Keep’s the Door’s From Attica to Gustafsen Lake (Chase BC: John Pasquale Boncore, 2001). The ruling on USA vs Pitawankwat is published in Canadian Native Law Reporter, no. 1, 2001. See Kirk Makin, “US Judge won’t Extradite Canadian Native Activist, Globe and Mail, 23 November, 2000, p. A1
12.Peter Matthiessen, In The Spirit of Crazy Horse (New York: The Viking Press, 1983)
13.Paul Barnsley, “Free Peltier Campaign Fails,” Windspeaker, Vol. 18, no. 10, February, 2001, p. 1
14.Anthony J. Hall, “Confronting the hard Realities of North Americas Ongoing Indian War,” The Radical, Vol. 3, no.5, January, 2001, pp. 1-3, 17