Alan Cairns. Handbook of Citizenship Studies. Editor: Engin F Isin & Bryan S Turner. Sage Publication. 2002.
There are some 300 million indigenous people in the world (Niezen, 2000: 120) located in every continent. In Canada, about 800,000 individuals identify themselves as Aboriginal, distributed in three categories Indian (69%), Inuit (5%), and Metis (26%) (Canada, 2001: 89 1996 figures). Making sense of how indigenous peoples in probably over a hundred countries are, or are not, accommodated by citizenship regimes would be a task of Toynbeean proportions that I concluded would defeat me even before I commenced.
‘In structural terms,’ according to Fleras and Maaka, ‘most indigenous peoples occupy an encapsulated status as disempowered and dispersed subjects of a larger political entity’ (2000: 114). In recent decades, they have emerged from the sidelines of history. There is a developing indigenous international, whose visibility and impact varies according to local circumstances, but which in general seeks to combat the systems of internal colonialism from which indigenous peoples seek an escape.
Escape from internal colonialism is, however, far more difficult than was escape from the overseas colonialism of yesterday’s European empires (if we ignore, for purposes of comparison, neo-colonialism.) Indigenous peoples have to work out a co-living arrangement with their former oppressors who will be a majority within the same polity. The analysis of the Indian peoples of Canada, now called First Nations, illustrates how difficult that task is, even in a wealthy, liberal, capitalist democracy. Citizenship, the obvious vehicle for binding individuals to the state and to each other in bonds of civic solidarity, generates at best an ambivalent reaction from many Indian peoples. Their allegiance to a state that has victimized them is problematic, and an empathy toward and civic solidarity with the majority society are weakened by a nationalism which increases social distance from the society it is reacting against.
The following analysis, which focuses overwhelmingly on one small indigenous population—much less than 1% of the world’s indigenous population—could be argued to have only idiosyncratic value. However, the issues it raises about the difficulties of crafting a version of citizenship which both positively accommodates indigenous diversity and forges bonds of civic solidarity with the majority population will almost certainly recur for most, perhaps all other indigenous minorities. The Canadian debate is framed against the bitter legacy of internal colonialism in a domestic context where independence is unavailable to separate indigenous and non-indigenous peoples from each other. That constraining context is not uniquely Canadian. It is inherent in the life situation of internal indigenous minorities. Fleras and Maaka unhappily but appropriately observe that the task of ‘post-coloniz[ing] “from within”’ presents a ‘much more elusive [goal] than [was initially] imagined’ (2000: 111). The Canadian debate, therefore, has much to offer to anyone groping for tentative answers in an emerging constitutional policy area that is reshaping the relations between states and peoples for much of humanity.
The Imperial Background and Exclusion from Citizenship
Historically, from Confederation in 1867 to the 1960s, Indian policy was explicitly an instrument of exclusion. The treatment of Indians drew much of its inspiration from an imperial spirit of the times that originated outside Canada but washed over Canadian borders. Until World War II, the historic relationship was a domestic version of the imperial domination of much of humanity by the European powers. On the ground, and on a global scale, imperialism meant the denial of self-rule for hundreds of millions of non-Western peoples. To those who were in charge, it was simply the natural order, justified by the confident belief in their own cultural and/or racial superiority. They saw themselves as in the vanguard of humanity in touch with the future for they were its creators.
Indians occupied a unique place in the post-Confederation federal system. They were kept outside the majority civic community, an administered people deemed incapable of deciding their own future. They were subject to special federal government legislation, which gave them a unique legal status—the Indian Act, enforced by field officers who had discretionary powers over much of the minutiae of daily living. With some exceptions they lacked the franchise until 1960, which not only powerfully symbolized their civic exclusion, but deprived them of the normal democratic influence individuals have over how they are governed. This underlined their identification as children in a world of adults. They lacked voice, because they were deemed incapable of effectively exercising it. They were dispossessed of their lands and routinely referred to as wards. Their unique relation to the federal government insulated them from provincial life. Unless they left the reserve, they in effect lived in a unitary state. Their isolation from the provincial arena and their status as wards had the consequence that they were deprived of many services and benefits routinely provided to non-Aboriginal Canadians. The policy of enfranchisement, the confusing label for giving up Indian status, however, had negligible appeal, and the numbers who took advantage of it were minimal. (For an estimate of numbers, see Johnston, 1993: 362, n. 59) ‘Enfranchisement,’ in the language of Darlene Johnston of the Chippewas of Nawash Band, ‘involved.… rejection of the values that community membership represented. It meant standing outside the circle that contained one’s ancestors, language, traditions, and spirituality’ (1993: 362. See also Foster, 1999: 361).
The goal was clear. Its classic and frequently quoted expression was given by Duncan Campbell Scott, the Deputy Superintendent General of Indian Affairs (1913-32), in a 1920 presentation to a House of Commons Committee: ‘I want to get rid of the Indian problem.… Our object is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic and there is no Indian question, and no Indian Department…’ (cited in Leslie and Macguire, 1979: 114).
Clearly for Scott the goal of Indian administration was not the preparation of Indian peoples for independence, or enhancing the capacity of future self-governing Indian nations (the word would have baffled him) to revitalize their cultures, but simply their disappearance into the majority society. Domestic imperialism, therefore, differed from its overseas counterparts in treating Indians as akin to immigrants who arrived early—and thus were destined for assimilation—not as members of nations in the making.
The traditional beliefs that had governed Indian policy since Confederation remained in place as late as the middle of the twentieth century. They included:
- The coexistence of Indian peoples and the majority society was appropriately hierarchical, with the governments of the latter possessing legitimate authority over the former for a transition period of indeterminate length.
- Policy assumed a certain historical direction. European civilization was in the vanguard of humanity, shaping the world into which others were to fit. Hence assimilation was a progressive policy, in tune with the way the world was going. For successive governments to pursue it was simply thought of as responsible leadership, a domestic example of the League of Nations Trusteeship Council mandate to be the teachers and guardians of ‘people not yet able to stand by themselves under the strenuous conditions of the modern world.’
The Post-Imperial Era
If historic Indian policy in Canada had been sustained by the powerful symbolism and potent background reality of the globe-straddling European empires—as it was, the successor world of Indian nationalism, of the official repudiation of the previous policy of assimilation, and of the intensified debate about how we are to live together in mutual respect, is a spillover of the ending of overseas European colonial empires. The emergence of many dozen colonies to independence transformed the international system. The United Nations was no longer a primarily European club as a flood of non-white states, mostly small and poor, took over the United Nations General Assembly. The Commonwealth was no longer a club of white dominions (including the anomalous presence of South Africa), but a vast multiracial assemblage encompassing a cross-section of humanity. ‘La Francophonie,’ like the Commonwealth, is largely a non-white club of ex-colonies with only a handful of members of European background.
The formal ending of overseas colonialism abroad and the subsequent transformation of the international state system sent shock waves through settler colonies with indigenous minorities. In the United States, what the anthropologist Edward M. Bruner described as a new story line for American Indians, from the inevitability of assimilation to the ‘future as ethnic resurgence,’ was triggered, among other factors, by the ‘overthrow of colonialism.’ (Bruner, 1986: 139, 152). In Australia, the fear of international public opinion, channelled through the United Nations, induced the government to improve the treatment of Aborigines (Clark, 1998: 99-100, 109; Mansell, 1993: 169). Ward and Hayward speculate that positive government responses in New Zealand to Maori protests in the 1970s were facilitated by ‘a changing national and international environment that was increasingly focused on the rights and management of indigenous peoples’ (Ward and Hayward, 1999: 393-4). International norms now repudiated what they had formerly supported, overseas colonialism and domestic wardship for indigenous peoples (Webber, 1995: 14, 25).
The end of empire changed the nature of the Canadian debate. The Diefenbaker Conservative government extended the franchise to status Indians in 1960. This was not done because of irresistible pressure from Indian peoples, but rather because of the increasing difficulty, verging on impossibility, of defending Indian exclusion from the franchise at a Commonwealth conference in which white states were in the minority, or in the United Nations with its growing Afro-Asian majority in the General Assembly (Cairns, 1995: 243). The 1969 unfortunately-named White Paper of the federal government, which proposed the rapid winding down of the policy of different treatment for Indian peoples, on the ground that it was the cause of Indian poverty, malaise, and other social ills, was also fed by the difficulty of justifying a system which, whether accurately or not, could be likened to apartheid (Martin, 1995: 191).
Although she notices important policy variations between Canada, New Zealand and Australia, Professor Catherine J. Iorns Magallanes observed that ‘developments in all three countries have paralleled international developments, in that all have implicitly rejected assimilationist goals and conceded elements of self-determination’ (Magallanes, 1999: 264). As the Canadian case illustrates, however, this rejection was not immediate. Assimilation did not go into official retreat until the early 1970s, slightly preceding similar retreats in the late 1970s in Australia and New Zealand (Havemann, 1999: 334; Fletcher, 1999: 342). Prior to that, in Canada it was considered a progressive policy, strongly supported by liberals, democratic socialists, humanitarians, and the goodwill elements of the non-Aboriginal citizenry. Its redefinition as cultural imperialism was still to come.
Ambiguities of a Post-Imperial World in Transition
Recognition that the end of European overseas empires signalled the end of domestic empire, perhaps with a time lag, did not immediately provide an agreed sense of direction. The initial federal government response to a postcolonial climate, presented in the 1969 White Paper (Canada, 1969), assumed the appropriateness of the assimilation goal but not the historic means of separate treatment as the vehicle for reaching it. In fact, the system of reserves, the Indian Act, and a colonial type of administration were now held to reinforce the very sense of Indianness they were supposed to overcome. In addition, separate treatment was now viewed as an unacceptable badge of inferiority, no longer defensible in public, as well as being the explanation of the social malaise and depressing conditions characteristic of many Indian communities. The answer was to dismantle the machinery of separate treatment and, after a short transition period, to place Indian peoples in the same civic relationship to governments as other Canadians.
This approach, without saying so, equated Canadian Indians and Afro-Americans, with the suggestion that the former, unfortunately, had not yet found their Martin Luther King. When the federal government substituted itself for the absent leader with its 1969 assimilationist proposals, it implicitly assumed that the surviving Indian desire for separate status was based on a false consciousness, which would vanish when confronted with the opportunities held out by participation in the majority society.
The White Paper was appropriately named. It was, in a sense, the last great act of paternalism, driven by the goal of a common citizenship. Confronted with massive Indian opposition, Trudeau ruefully but candidly admitted: ‘I’m sure that we were very naive… We had perhaps the prejudices of small “l” liberals and white men at that who thought that equality meant the same law for everybody, and that’s why… we said, “well let’s abolish the Indian Act and make Indians citizens of Canada like everyone else”… But… perhaps we were a bit too theoretical, we were a bit too abstract…’ (Weaver, 1981: 185). The White Paper was withdrawn.
An alternative postcolonial response, more in tune with Third World anti-colonialism, was to think of wardship ending not by individuals entering the majority society, but by small Indian communities taking more control of their future. This vision gained legitimacy from the increasing international unacceptability of paternalism, graphically underlined by UN General Assembly Resolution 1514, Declaration on the Granting of Independence to Colonial Countries and Peoples, which stated ‘all peoples have the right to self-determination [and] inadequacy of political, economic, social and educational preparedness should never serve as a pretext for delaying independence.’ The resolution was passed 89-0 in 1960 in the UN General Assembly, with nine abstentions (Jackson, 1993: 121, 124).
The goal of self-governing communities was perhaps implicit in the Indian rejection of the White Paper. That rejection, however, was not clothed in the language of nationalism, but rather in a phrase originally developed in the Hawthorn report of the mid 1960s ‘citizens plus’—to describe the appropriate relationship of Indian peoples to the Canadian state (Hawthorn, 1966-67). To the Hawthorn research team, the term ‘citizens’ was intended to end the historic stigmatized exclusion of Indians from positive civic membership in the Canadian community, an exclusion that had facilitated their neglect and maltreatment. ‘Plus’ meant some version of differentiated citizenship the wedding of a ‘plus’ component of special entitlements and Canadian citizenship. ‘Plus’ clearly included the survival of self-governing Indian communities as such into the future. These communities, however, were not yet thought of as nations. Hawthorn and his colleagues saw villages, not nations. Even the Indian Chiefs of Alberta, with Harold Cardinal as their spokesman, who led the attack on the White Paper with a lengthy brief titled Citizens Plus, thought of the future of Indian communities in municipal, not national terms (Indian Chiefs of Alberta, 1970: 14).
Both the White Paper view and the rival vision of distinct self-governing Indian communities, whether or not they were called nations, were compatible with the developing moral, intellectual climate of the post-imperial era. Both repudiated wardship. The former was the government view and probably the view of the majority society.
Indian leadership opted clearly for the latter, seeing the Trudeau proposals—what Rogers Smith called the ‘greater inclusiveness in public life’ option (Smith, 1997: 473)—not as the liberation of individuals, but as the suppression of community. Community survival, cultural reinvigoration, and self-government, by contrast, were emerging as the explicit goals of the Indian people. Future policy incorporating the Indian view of a desirable future would have to be negotiated, not simply announced as the White Paper had been. Once the premise of disappearance through assimilation was ended, irresistible incentives in the Canadian case drove Indian peoples to the language of nationalism and to the self-description of Indian peoples as belonging to nations.
Transformation of Indian Consciousness
The language of ‘nation’ was conspicuously absent from public discussion of Indian policy in the 1960s and early 1970s. In the mid 1960s, the Hawthorn Report, which grappled with the relation of Indian peoples to the larger society, did not use the label ‘nation’ for the Indian peoples whose lives it hoped to improve (Hawthorn, 1966-67). The word had no currency at the time. Although the report discussed treaties, it was not impressed with their significance. The ‘rights and privileges guaranteed by treaty to some Indians,’ it asserted, ‘are insignificant in relation to both Indian needs and the positive role played by modern governments’ (Hawthorn, 1966-67: vol. I, 247). The authors of the 1969 White Paper did not see Indian peoples as belonging to nations. Further, Prime Minister Trudeau found it inconceivable that one section of society could have a treaty with another section of society. The critique of the White Paper by the Indian Chiefs of Alberta was devoid of the language of nation and the rhetoric of nationalism (Indian Chiefs of Alberta, 1970). Concurrently, two successive publications on Native Rights in Canada (Indian-Eskimo Association of Canada, 1970; Cumming and Mickenberg, 1972), written by advocates of native rights, also made no mention of Indian nations in their analysis.
The debate between the assimilationist approach of the White Paper and ‘citizens plus,’ proposed by the Hawthorn Report in 1966 and adopted by the Indian Chiefs of Alberta to do battle with the White Paper, was between two theories of belonging. To the then federal government, a uniform, standard version of citizenship would end the marginalization held to be the cause of so many of the ills of the Indian people. The message was clear—the bracing winds of competition on a level playing field would be the engine of socioeconomic advance. From the ‘citizens plus’ perspective, by contrast, stand alone citizenship was not enough—it had to be coupled with a ‘plus’ component which simultaneously recognized the historical priority of Indian peoples in what became Canada, and the contemporary fact that most Indians still lived in politically organized communities which would survive into the indefinite future. ‘Plus,’ to be worked out in the political process, was not intended to displace citizenship, but to supplement it. In spite of their obvious difference, however, both ‘citizens plus’ and the White Paper agreed on the central importance of citizenship for the future of Indian peoples. ‘Nation’ played no part in the debate.
Peter Kulchyski, after noting how the concept of ‘citizens plus’ was a powerful weapon employed by Indian peoples to defeat the White Paper, suggests that the ‘concept… continued to evolve [in the 1970s, and] as citizenship rights were secured the “plus” or additional rights became the focus of discussion’ (Kulchyski, 1994: 5). By the late 1970s, he continued, the term ‘“Aboriginal rights”… replaced the term “citizens plus” in legal and political discourse and remains a focal concept for negotiating the boundary between Aboriginal and non-Aboriginal peoples’ (Kulchyski, 1994: 5).
The transformation of Indian consciousness from the 1960s to the present brought in its wake a dramatic change in the tenor of Indian demands and the responses to them. The tone shifted from deferential to aggressive. The 1975 Dene Declaration on nationhood was a portent. ‘We the Dene of the Northwest Territories insist on the right to be regarded by ourselves and the world as a nation’ (Watkins, 1977: 3-4). The S. 35(1) recognition and affirmation of ‘the existing aboriginal and treaty rights of the aboriginal peoples of Canada’ in the 1982 Constitution Act was a powerful stimulus for Aboriginal leaders to define their ‘political activities… in terms of nationhood rather than in terms of accommodation to the Canadian state. [This changed] negotiations and the whole structure of the language surrounding negotiations (even the whole idea of “nation”)’ (Sawchuk, 1998: 133). The renewed pride and activism of Indian nations in Canada was paralleled by what Stephen Cornell called The Return of the Native, the political resurgence of American Indians, which peaked in the 1970s (Cornell, 1988). Vine Deloria Jr. ushered in the decade with We Talk, You Listen (1970), which was followed three years later by the violent ten week siege of Wounded Knee in 1973. According to Stephen Cornell (1988: 4) Wounded Knee ‘provided… sensational evidence… of the return of Native Americans to the political arena, of their defiant claim to the right once again to make their own choices.’ Maori consciousness and claims underwent a similar evolution to a much more aggressive pattern of demands in this period (Sharp, 1990: 6-9).
In Canada, the emergence of Indian nationalism was stimulated by the recurrent bouts of constitutional introspection from the 1960s to the present, which raised the fundamental question of who Canadians were as a people. This introspection was triggered by the diminishing significance of the British connection, by the accelerating influence of the United States on Canadian life, by a centrifugal provincialism in the federal system, and in particular by the emergence of an aggressive Quebec nationalism seeking independence or enhanced powers for what was now called the state of Quebec. The pace and agony of this self-questioning accelerated after the 1976 parti québécois provincial election victory, with its powerful message that the label ‘nation,’ coupled with aggressive demands for recognition, compelled a degree of attention that could not be achieved with milder terminology. ‘Nation’ carried an emotional weight that ‘Indians,’ or ‘bands,’ or ‘peoples’ did not. ‘Nation,’ for Indian peoples, especially when coupled with the adjective ‘First,’ performed ‘an important political function’ in communicating not only a desire for self-government, but a justification for its possession superior to that of the newcomers who already possessed it (Carens, 2000: 181).
From the Penner Report of 1983 (Canada, 1983) to the 1992 Charlottetown Accord (Canada, Consensus Report, 1992) and the 1996 RCAP Report (Canada, 1996), ‘nation’ drives each response to enhance the status of Indian peoples, enlarge their powers of self-government, and redress the stigmatization of their past treatment with a positive constitutional recognition of their special place in Canada. The Penner Report consistently used the phrase ‘Indian First Nations’ in response to the language of the witnesses before the House of Commons Special Committee, chaired by Keith Penner (Canada, 1983: 7). That Report argued that the self-government it advocated in ringing terms ‘would mean that virtually the entire range of law-making, policy, program delivery, law enforcement and adjudication powers would be available to an Indian First Nation government within its territory’ (Canada, 1983: 63). The Charlottetown Accord constitutional package, whose Aboriginal contents were heavily influenced by the presence of the major Aboriginal organizations at the bargaining table, not only recognized the inherent right of self-government, but proposed that ‘virtually every major institution of the Canadian state would in future have a distinctive Aboriginal input or presence—Senate, House of Commons, Supreme Court (tentatively), first ministers’ conferences, and amending formula’ (Cairns, 2000: 83). Overall, the basic political theory of the Accord was parallelism, the side-by-side coexistence of Aboriginal and non-Aboriginal peoples. Four years later, the RCAP Report refined the concept of parallelism by defining Aboriginal and non-Aboriginal Canadians as members of separate nations to be linked by treaties. The self-governing Aboriginal nation was ‘the core around which the Commission’s recommendations are built’ (Canada, 1996: vol. 2 (2), 1015). It is ‘through the nation the traditional historical unit of self-governing power, recognized as such by imperial and later Canadian governments in the treaty-making process—and through nation-to-nation relationships, that Aboriginal people must recover and express their personal and collective autonomy’ (Canada, 1996: vol. 1, 610). Aboriginal rights, treaties and treaty rights, and nations became a tightly linked trilogy, a compact packaging of First Nations nationalism.
By the end of the twentieth century, ‘nation’ had become a standard term, although there was disagreement over how many nations there were. The main Indian organization changed its name from the National Indian Brotherhood to the Assembly of First Nations in 1980. By the late 1990s, nearly one-third of the more than 600 Indian bands had officially added nation to their titles (Canada, 1985, 1990, 1999). A burgeoning literature, triggered by Aboriginal nationalism and the proliferation of Aboriginal nations, defined Canadians as a multinational people (Cairns, 2001). Paul Chartrand, an influential RCAP commissioner of Métis background, suggested there were 35-50 distinct Aboriginal nations in Canada, ‘meaning peoples in the usually accepted international sense of a group with a common cultural and historical antecedence—a feeling that we are distinct historical communities, socialpolitical communities.’ We need, he continued, a vision ‘in which these historical indigenous nations matter and they’re included. That… means a multinational vision of Canada’ (Chartrand, 1999: 104, 90). The RCAP Report agreed on the necessity of a multinational vision, recommended the consolidation of individual communities into 60-80 Aboriginal nations (Canada, 1996: vol. 1, xxiv.), and indicated that it would be a mistake to think of the Canadian community as a community of citizens. Indeed, the proposed nation-to-nation relationship regulated by treaties in a multinational federalism that it advocated was the antithesis of a community of citizens.
This remarkable evolution of a more aggressive public identity, which has transformed the discussion of how Aboriginal and non-Aboriginal peoples are to live together, has been little studied. However, the following factors clearly played a part (see also ‘The Ambiguous Colonial Analogy’ below.)
At a general level, as Walker Connor and numerous other authors have noted, ours is an era of substate nationalism. The boundaries of states and the boundaries of ethnic groups rarely coincide. Only about 15 of the more than 180 states in the world can be considered ‘essentially homogeneous’ (Connor, 1999: 164). The difficulty of accommodating this internal diversity is compounded when minority group quiescence is replaced by heightened consciousness and mobilization. When ethnic diversity is conceptualized in terms of ‘nations within’ (Fleras and Elliott, 1992), as now is true of Aboriginal nations in Canada, the psychological distancing from the majority society grows exponentially and a homogeneous citizenship is put on the defensive.
There is now an indigenous international—a vehicle for exchanging views, and an emotional support for small nations who are given the reassurance that they are not alone, indeed that they are participants in a global movement. Formerly, although it was possibly seldom thought of as such, there was an imperial international—the solidarity that sprang from the tacit understanding that the peoples and states of Europe and their migratory cousins in Canada, Australia and elsewhere rightly held sway over much of humanity. That imperial international was challenged and overthrown in overseas colonies by a counter-international of anti-colonial nationalist movements that led to the contemporary international system dominated by non-Western states. By an inevitable contagion effect, the success of Third World anti-colonial nationalism in overthrowing imperial rule changed the moral and intellectual climate in settler polities with indigenous minorities. Indigenous peoples, relatively unaware as late as the 1950s of the ‘widespread, almost global, nature of the crises they faced,’ began to develop a global identity ‘through an expansion of indigenous organizations and networks of communications between them in the 1960s and 1970s’ (Niezen, 2000: 123). The indigenous international which developed and is active in international forums, especially the United Nations, is the Fourth World opposition party spawned in reaction to the settler majorities born of European migration. It contributes to an international indigenous identity which transcends particular states, while reinforcing demands for breathing space and recognition within those states.
Stigmatization and the Impact of Separate Treatment (Cairns, 1999)
Although it was not so intended, the past treatment of Indian peoples by the Canadian state almost appears as a deliberate attempt to reinforce a separate identity and to generate a distrust and suspicion of the majority society and its governments. They were a stigmatized people, subjected to a cultural assault by the Canadian state and, as one anthropologist put it, conditioned to see themselves as worthless (Dyck, 1991). The legal banning of cherished customs, the employment of residential schools to eradicate Indian cultures, their isolation from the majority community, and the constant reminders of their inferiority generated a counter-definition in which the Indian past is positively portrayed and the culture of the newcomers is denigrated (First Nations Circle on the Constitution, 1992). Such contrasts, which are pervasive, turn the justification for imperialism on its head, and respond to a profound ‘hunger within the native community for an identity separate from the Canadian mainstream’ (LaRocque, 1997: 88).
The implementation of the official Canadian policy of multiculturalism in 1971 generated an incentive for all Aboriginal peoples to distinguish themselves from more recent arrivals. ‘Nation,’ considered inapplicable to immigrant communities, was the obvious candidate, for it not only singled out Aboriginal peoples from ethnic groups, but it carried more clout, and put Aboriginal nations on a par with the two French and English founding nations. For Indian peoples who identified themselves as ‘First Nations,’ ‘First’ indicated that they had a special claim based on their prior presence in what became Canada.
Psychological and Bargaining Benefits
The ‘nation’ label was psychologically satisfying. It enhanced the self-esteem of Indian peoples when others applied it to them as a matter of course. It enhanced the bargaining power of those who successfully employed it. It deflected attention from the small size and limited resources of Indian communities. When ‘nation-to-nation’ became the preferred phrase to refer to future relations between Aboriginal and non-Aboriginal peoples, and when treaties became the preferred instrument to regulate those relations, the gratifying symbolic message was of a coexistence among equals.
The cumulative effect of the preceding is that Canadian citizenship has a low priority for many members of First Nation communities (Boldt, 1993: 50, 73-4, 83, 108); (Carens, 2000: Ch. 8). It receives limited attention from a host of analysts/ commentators. The massive Report of the 1996 Royal Commission on Aboriginal peoples treated it almost as a distraction. Citizenship was dwarfed by the Report’s reiterated thesis that the self-governing Aboriginal ‘nation’ exercising its inherent right was the fundamental solidary unit, and a nation-to-nation relationship regulated by treaties was the route to a dignified future for Aboriginal peoples.
Treaty federalism, most prominently associated with James (Sakej) Youngblood Henderson, has a similar thesis, arguing that First Nations, represented by ‘Treaty Delegates,’ should be directly represented in federal and provincial legislatures. Henderson criticized the 1960 extension of the federal franchise as an illegitimate attempt to justify ‘the oppressive extension of… [federal] powers over Aboriginal peoples’ (Henderson, 1994: 321). Overall, he decries the electoral participation of individual Indians in heterogeneous constituencies as designed to legitimate the illegitimate legislative intrusion by the federal and provincial governments into matters reserved to the jurisdiction of Indian governments (Cairns, 2000a: 179-82). In a recent co-authored publication, Henderson and his colleagues elaborate on the direct representation of Aboriginal peoples as such alongside ‘representatives of the Canadian people’ (Henderson, et al., 2000: 449). This distinctive Aboriginal presence in legislatures will reflect, speak for, and protect the constitutionally guaranteed Aboriginal and treaty rights under S. 35 (1), and, it is argued, will facilitate a reconciliation (Henderson et al., 2000: 444-9).
A cohort of mostly non-Aboriginal scholars in the academic legal community, the lead discipline in the contemporary analysis of Aboriginal issues and the major academic contributor to a constitutional theory of Aboriginal/non-Aboriginal coexistence, overwhelmingly conducts itself as the vanguard of Aboriginal nationalism. Within the constitutional category ‘aboriginal peoples’ (Indian, Inuit and Métis), legal scholarship focuses overwhelmingly on Indian peoples. Its self-defined task is to maximize the constitutional space available to First Nation governments exercising the inherent right of self-government. Macklem correctly observes that ‘Canadian academic [legal] scholarship has been as creative as its American counterpart in providing arguments for the creation of constitutional spaces in which Indian forms of government can take root and flourish’ (Macklem, 1993: 1366). Canadian citizenship concerns, by contrast, are almost invisible in the constitutional vocabulary of legal academics. The triumph of ‘nation’ over citizen spills over into a widespread Aboriginal distrust of democratic politics and the existing system of representation. The RCAP Report speaks of the
inherent ineffectiveness of the democratic political relationship as seen by Aboriginal peoples. There has been a profound absence of representation for Aboriginal peoples in Canadian democratic institutions. But more important, such representation, when cast in terms of conventional democracy, is itself regarded as illegitimate. Aboriginal peoples seek nation-to-nation political relations, and these cannot be achieved simply by representation in Canadian political institutions (Canada, 1996: vol. I, 249).
Georges Erasmus, National Chief of the Assembly of First Nations from 1985 to 1991, and subsequently co-chair of the Royal Commission on Aboriginal Peoples, bluntly stated in 1987 that the ‘bland assertion that First Nations and their governments are represented by non-Aboriginal politicians who have no interest, demonstrated or latent, in advocating our rights is bogus and without foundation in fact or action’ (Canada, 1987: 2201). Not surprisingly, given these sentiments, voting turnout in federal and provincial elections based on heterogeneous constituencies is typically low. According to a recent study, which began by noting the historic tensions and suspicion in the relations between Aboriginal peoples and Canadian governments, ‘natives do not place a high priority on voting in Canadian elections.’ Many believed that voting and participation in legislatures ‘gives unwarranted legitimacy to non-native governments’ (Malloy and White, 1997: 60, 62; see also Schouls, 1996). Two other authors attribute low voting participation in the Maritime provinces to the ‘little confidence [of Aboriginal people] in the likelihood of finding a comfortable domicile within the Canadian state’ (Bedford and Pobihuschy, 1994: 35).
As the preceding suggests, the political representation of Indian peoples is a major site of contestation and ambiguity. Thirty years ago, the federal government began to fund Aboriginal political organizations, for the eminently laudable reason of giving greater voice to constituencies that lack the numbers and resources to make themselves heard. So successful has this system of support been that the major Aboriginal organizations participated with the heads of government in four constitutional conferences (1983-87) exclusively devoted to Aboriginal constitutional issues. Again, in the discussions that produced the 1992 Charlottetown Accord, Aboriginal organizations played a (perhaps the) leading role in crafting a remarkable package of constitutional change for their peoples which, along with other constitutional amendments, was defeated in the country-wide 1992 constitutional referendum.
According to Sanders, the strategy of funding Aboriginal political organizations ‘in order to bring aboriginal people within the process of policy formation… was integrative… intended to facilitate participation and reduce isolation, frustration and confrontation’ (Sanders, 2001: 33). The funding policy coexists, however, with the normal federal and provincial electoral process in which Aboriginal voters in individual constituencies help to select federal and provincial politicians who have the right and obligation to represent and speak for all members of their electorates.
Ideally, federal politicians should speak on behalf of the federal dimension of their Aboriginal constituents that they represent in Ottawa, and provincial politicians on behalf of the provincial dimensions they represent in the provincial capitals. Their capacity to do so, however, is challenged by Aboriginal organizations whose leaders claim that their own capacity to speak on behalf of nations has a superior legitimacy to the claims of elected non-Aboriginal legislators to speak on behalf of Aboriginal constituents. Support for this position is not restricted to Aboriginal leaders. Joseph Carens, a University of Toronto political theorist, says he cannot ‘see how any non-aboriginal person could claim to speak politically on behalf of aboriginal people, unless directly authorized to do so by an aboriginal constituency, because the political salience of aboriginal identity is so apparent’ (Carens, 2000: 176). What appears as disarray in the theory and practice of representation may only be a transitional problem, part of our groping toward a more normal situation, or it may be an anomaly that will survive because it fulfills functions that normal politics cannot. At the moment, it is an example of ‘muddling through,’ sheltered from examination by a tacit assumption that to seek answers to complex questions of constitutional theory at this time would be counterproductive.
Individual Aboriginal scholars deny that they are Canadian (Monture-Angus, 1999: 152). Antipathy to, indifference or tepid support are reported as widespread attitudes to Canadian citizenship (Johnston, 1993: 349). A recent article classified Aboriginal peoples as ‘uncertain citizens’ (Borrows, 2001). The application of the Charter, a powerful symbol of Canadianism, to the relations between Aboriginal governments and their citizens has been deeply divisive (Borrows, 1994: 21, 31), with Aboriginal opponents of the Charter decrying it as an alien document incompatible with Aboriginal values (Turpel, 1989-90; First Nations Circle on the Constitution, 1992). A recent volume with the title We Are Not You (Denis, 1997) underlined the psychological distance between First Nations and the majority society.
None of the preceding is surprising. There are deep psychological impediments to a ready embrace of Canadian citizenship. After all, historically the rights and obligations of citizenship were only available to Indians who gave up (or lost) their Indian legal status by a process unhelpfully called enfranchisement. Hence, Indianness and Canadian citizenship were incompatible. One could only assume the latter by giving up the legal status of the former (Carens, 2000: 185, 186, 188, 196). In that era, to opt for citizenship could be seen as an act of betrayal, as going over to the other side. Memories of that past lead to a view of linkage with Canada as little more than a ‘regrettable necessity,’ based on the need for transfers of resources and on the limited viability of small political units (Carens, 2000: 173).
The often reported ambivalence of members of First Nations to Canadian citizenship is overdetermined. There is an almost unavoidable psychological tension involved in the nationalist incentive to define the majority and its governments in negative terms as ‘other,’ in order to maximize the rationale for extensive self-governing powers and simultaneously to advocate enthusiastic citizen membership in and participation as individuals in the political affairs of the enveloping majority society. However, even this observation probably oversimplifies the complexities of and psychological dimensions of the relations of Indian peoples to the Canadian state. Speculatively, it is highly likely that the reportedly lukewarm attitude to Canadian citizenship is possible because its benefits welfare state, for example—are nevertheless available to Indian peoples. In general, unless there is a conflict with Aboriginal or treaty rights, or the Indian Act, Indians have the same relation to the rights, privileges and obligations of Canadian law as other Canadians. Indifference to citizenship would almost certainly weaken if anyone suggested removal of the franchise, or withdrawal of Old Age Security benefits. As Kulchyski argued, once citizenship rights were secured by the 1970s, ‘the “plus” or additional rights became the focus of discussion’ (Kulchyski, 1994: 5). It may be, then, that citizenship rights can be accorded low priority because they are considered to be secure. Further, the historic link between giving up Indian status and accepting citizenship—the historic enfranchisement policy—suggests that a too overt support for citizenship status will be seen by some as an overt denial of Indianness.
Speculatively, again, the pallid public support for citizenship and the contrasting political rhetoric of nationalism reflects the communal reality of the 60% of the status Indian population that is reserve-based. If the Indian people were scattered throughout Canadian society with no land base to call their own, the Canadian debate would presumably have been a modified version of the American debate over the position of Afro-Americans intermingled in urban milieus with the non-Afro-American majority. Claims based on a common citizenship would have been more frequent and powerful. The contemporary dominant discourse, which privileges the Indian First Nation over the Canadian citizen, would probably have been rivalled and possibly surpassed by a rhetoric of participatory inclusion. In this hypothetical scenario, the urban Aboriginal population would have what it now lacks, a voice and visibility proportionate to its numbers.
The existence of individual communities with a territorial base and a chief and council structures debate around the issues of the cultural survival of Indian nations and the role of governments in fostering it. The debate portrays the Aboriginal nation and Canadian citizenship as rival modes of belonging. Claims on the majority society for justice are not made in the language of a shared citizenship but in the language of Aboriginal rights, of wrongs historically inflicted on their people, of treaty rights that have been violated (Sanders, 2001). The triumph of the language of nation over citizenship from an Aboriginal perspective is not dictated by numbers. The language of nation is much less persuasive for the more than half of the overall Aboriginal population (Indian, Inuit and Metis) that lacks a land base, and which constitutes a much more receptive constituency for the language of citizenship—‘We want in!’ It is, however, less easily organized, very heterogeneous, especially in metropolitan centres, of less interest to the legal profession, and in the inner city cores Aboriginal peoples are ‘seen but not heard,’ as a recent volume described their condition (LaPrairie, 1995).
The Ambiguous Colonial Analogy
The widely employed colonial analogy is a natural migration from the largely vanished world of overseas empire to the domestic situation of numerically weak indigenous peoples surrounded by settler majorities. The demise of European empires and the emergence of formerly subject peoples to independence helped indigenous peoples in settler countries to see their own situation in terms of a history of colonialism from which they sought an escape. In each case, indigenous peoples were taken over and subordinated to the newly arrived Europeans. In the classic imperial setting, colonialism was an overseas venture, the ending of which required the transfer of governing authority to the indigenous majority. A new flag is raised. A new country enters the United Nations, and the international community of sovereign states acquires a new member.
In New World settler societies, the colonial analogy was an appropriate label for the historic subjugation of native peoples and their subsequent treatment as wards incapable of self-rule, a point repeatedly made by RCAP (Canada, 1996). Indians, in particular, see themselves as a colonized people (First Nations Circle on the Constitution, 1992). In both cases, overseas and domestic, the newcomers diverted indigenous peoples from the paths on which they had been traveling. They were subjected to distant authorities over which they had negligible influence. In both cases, equally deprived of self-rule, their situation and treatment was colonial. However, the ending of colonialism took them on different paths. The newly independent subjects of a former overseas colony meet yesterday’s masters in the international community of states, where both meet formally as equals, clothed in the garments of independent statehood. For indigenous peoples in settler colonies—the ‘nations within,’ who had been similarly denigrated and humiliated by European peoples, the ending of colonialism could not culminate in independence. Small numbers and their scattering in the Canadian case into small communities preclude independence. The majority is not going to go home, and federal and provincial governments are disinclined to consider the dismemberment of the Canadian state. The realistic aspirations of small indigenous nations are limited to carving out whatever degree of autonomy they can, supplemented by a rapprochement in matters outside their indigenous jurisdiction with the surrounding majority society which had been the instrument of their oppression.
Their identity, as is commonly true of indigenous peoples, derives much of its content from nationalist histories of their victimization. It was almost inevitable, therefore, given their own past treatment, the independence outcome for former overseas colonies, their distrust of the majority society, and their own assertive nationalism, that constitutional theorizing by or on behalf of First Nations would largely be directed to the autonomy goal and much less to the rapprochement via a common citizenship with those who had built a flourishing society that had passed them by.
To interpret past treatment as colonial defines the counter-attack as nationalist; the community of belonging is the struggling nation, and the goal is escape by the maximum self-government possible. A colonial interpretation of the past creates a psychological impediment to a positive view of Canadian citizenship. Escape from a colonial past is conventionally seen as an act of collective emancipation, not as a series of individual citizen memberships in the society that historically excluded one’s people as unworthy. If this psychological impediment triumphs, and the members of small self-governing nations have only a limited connection to the political institutions of the majority society, and limited enthusiasm for participation in settler political institutions as voters, legislators, or cabinet ministers, they will have minimal or no impact on the great affairs of state which will be handled outside of First Nations jurisdiction.
The necessary rapprochement to overcome a dangerous isolation is not easy, as First Nations members are unlikely to see the Canadian state in its federal and provincial embodiment as ‘their’ state. Even if wardship has been officially repudiated, members of First Nations encounter their former masters in a domestic setting, where the latter are still a decisive majority. At best, they continue to live in a halfway house, still minorities, albeit nations, in the midst of majorities on whom they remain dependent. Such a halfway house may still be experienced as a continuation of colonialism. The possibilities of escape even by some federal arrangement of constitutionally protected self-government are severely limited. This is especially so if individual nations have small populations, if they seek the goods and services available to the majority, and if many of the policies and decisions affecting them are outside the sphere of self-government—all of which applies to First Nations.
The introspective nationalism of small, scattered communities does not threaten the territorial integrity of Canada. ‘Indigenism,’ as Niezen observes, ‘can… be distinguished from ethnic nationalism by the consistent reluctance of indigenous peoples… to invoke secession and independent statehood as desired political goals’ (Niezen, 2000: 141; see also Sharp, 1990: 251 for general agreement for the Maori, but 256-65 for important exceptions). Nevertheless, indigenous nationalism in Canada weakens allegiance to and identification with the Canadian state, at least for a transition period of indeterminate length. Until a reasonable rapprochement at the psychological level between Indian nationalism and Canadian citizenship can be worked out, the former may lead to a kind of civic deficit for possibly hundreds of small communities that are geographically within Canada, but emotionally distant from it. The same point was made by Andrew Sharp about New Zealand in the 1980s, that ‘it was… obvious to all that the state as it was constituted and as it operated was hardly the object of devotion of many Maori and that it stood to lose the adherence of still more’ (Sharp, 1990: 266).
If escape to independent statehood in the international system is impossible, one strand of constitutional theorizing redefines the domestic political system as if it were a quasi-international system. Participation in settler institutions is not then understood as participation with fellow citizens from heterogeneous constituencies, but rather as nations participating in an emerging multinational polity. As already noted, the RCAP Report privileges the Aboriginal nation as the primary unit of allegiance and solidarity, asserts that the Aboriginal non-Aboriginal relationship should be restructured in terms of nation-to-nation, that the relations between these nations should be regulated by treaty, and that Aboriginal peoples should be part of a ‘multinational federalism’ that practices a ‘multinational citizenship’ (Canada, 1996: vol. I, xxiv). Canada’s ‘true vision,’ accordingly, is a partnership of nations held together by civic allegiance to the separate nations (Canada, 1996: vol. I, xxv). Given the triumph of ‘nation’ over ‘citizen’ in its Report, RCAP’s dismissive attitude to a House of Commons based on heterogeneous constituencies is perfectly logical. When the Commission turns its attention briefly to representation in the federal government legislative arena, it opts for Aboriginal nations as the units to be represented in a new third chamber acting as a watchdog for Aboriginal interests (Canada, 1996: vol. II (1) 374-82). Given this image of Canada as an assemblage of nations, a suggestion by Mary Ellen Turpel makes sense: ‘It may be helpful [in thinking about direct Aboriginal participation in legislatures] to conceptualize special indigenous representatives as ambassadors or international representatives of indigenous communities with a quasi-diplomatic function. This model helps to dispel the impression that indigenous peoples are seeking assimilation into dominant institutions’ (Turpel, 1992: 600).
Possibly the royal commission vision of a multinational federalism that verges on being an international system, which is shared by other scholars and activists (Henderson, 1994; Henderson et al., 2000), is realizable. The demise of overseas colonialism fundamentally and unpredictably transformed the international state system. The demise of domestic colonialism now underway will unquestionably and also unpredictably transform the relations between states and the peoples they govern. Although a transition era is characterized by adventurous thinking and is thus perhaps a poor time to be categorical about possible futures, the impediments to implementing the royal commission vision, three of which are discussed below, are enormous.
Firstly, in the many positive discussions of self-government, the very small size of the populations that will handle governing responsibilities is typically (one is tempted to say ‘almost systematically’) overlooked. Only 5% of Indian bands, 30 out of 623, have on-reserve populations of more than 2000; 405 have on-reserve populations of less than 500. One hundred and eleven bands have on-reserve populations of less than 100 (Indian and Northern Affairs Canada, 1997: xvi) Even RCAP, that saw the serious governance problems dictated by small size and therefore recommended a broad-based consolidation of existing communities to achieve an average nation size of 5000-7000 for a self-governing nation, ends up with large villages. The inescapable limitations on the extent of the jurisdictions that can be managed by such communities means that individual members of self-governing nations, even if their resource base is expanded, will remain heavily dependent on policies and services from federal and provincial governments. The tendency to downplay this consideration is remarkable.
Secondly, the related tendency of indigenous nationalist thought to focus on self-government and minimize the significance of citizenship as the vehicle for positive civic identification with the majority society may erode the good will of the latter. If the majority hears a consistent refrain of ‘We are not you,’ it may respond with ‘They are not us.’ If this dialectic takes place, in which each party is acting logically in terms of its definition of the situation, First Nations exercising limited sovereignty over small populations may be seen as strangers to whom little generosity is owed—an unfortunate outcome for citizens of small nations with little capacity for escaping poverty in the absence of substantial ongoing external support. Self-government in these circumstances may be a recipe for frustration, rather than the route to a viable future blending usable traditions and the skill practices of modernity.
Possibly, of course, 60 to 80 nation-to-nation treaty relationships, as proposed by RCAP, along with monitoring arrangements and implementing tribunals, can be a functional alternative to citizenship, especially if the treaties are constantly upgraded. However, when the Canadian nation partner is 5000 times larger in numbers than the average Aboriginal partner—assuming the consolidations of communities proposed by RCAP—and RCAP builds in no alternative source of empathy or solidarity, this vision of the future appears as a high risk gamble. The problem is eloquently raised by Fleras and Maaka: ‘Will the extension of indigeneity as principle and practice create a society that is bifurcated around two constitutionalisms, thus creating new forms of segregation?’ (Fleras and Maaka, 2000: 115).
The challenge of constitutional transformation, accordingly, ‘lies in acknowledging [indigenous peoples’] rights as original occupants and political communities, without undermining societal cohesion and national identity in the process’ (Fleras and Maaka, 2000: 119. See also Sharp, 1990: 284 for agreement from a New Zealand perspective). In general, and unfortunately, this fundamental challenge receives negligible attention in the mushrooming Aboriginal policy literature in Canada.
Thirdly, the colonial analogy and the discourse of nation are illsuited to the situation of urban Aboriginals—more than 50% of the total aboriginal population and 42% of the status Indian population. The dominant discourse on nation and focus on self-government has only a limited application to their situation. As a result, they receive neither the policy concern, nor the academic attention their numbers and social problems justify. This is an extremely serious omission. Numerous indicators suggest that major Canadian cities, especially in the three western prairie provinces, are beginning to experience a Canadian version of the American big city situation with an Afro-American (Aboriginal) middle class and an Afro-American (Aboriginal) ghetto, with high levels of unemployment, violence, youth gangs, drugs and alcoholism (Cairns, 2000b). The hegemony of a discourse with minimal capacity to encompass urban Aboriginal populations is unfortunate. They are marginalized by a discourse more suited to nations with boundaries. They may, in extreme cases, be viewed as having betrayed the nationalist cause, of having gone over to the other side.
These three concerns—very small nations, the limited attention paid to social cohesion in nationalist literature, and the under-inclusiveness of the rhetoric of nation which marginalizes the urban half of the Aboriginal population—suggest that the vision of a multinational Canada of 60 to 80 or more Aboriginal nations linked to Canada by treaty but only minimally by a common citizenship, is, at a minimum, problematic.
A nationalist discourse of indigeneity in white settler dominions strengthens the developing momentum behind a ‘proposed paradigm shift… partly in response to escalating indigenous pressure and prolonged public criticism, in other part to deflect a growing crisis in state legitimacy’ (Fleras and Maaka, 2000: 113; see also 124). In Canada, the major indicator of that paradigm shift is S. 35 of the 1982 Constitution Act, which respects and affirms Aboriginal and treaty rights. The diffusion of the concept of ‘nation,’ and even more so First Nation, enhances the status of the holders of these rights. The existence of a treaty process in British Columbia, following more than a century of denial of Aboriginal title by successive British Columbia governments, testifies to the power of the transformed moral and intellectual climate which gives Aboriginal claims a legitimacy beyond the capacity of previous generations to imagine. The establishment of a major royal commission on Aboriginal issues, with an Aboriginal majority among the commissioners, indicated both the question mark about where Canadians were heading, and that Aboriginal people would play a lead role in influencing the choice of direction (Canada, 1996). Transforming these and other indicators of a developing politics of positive recognition into healthy self-governing nations for the 60% of Indian peoples living in organized communities, nevertheless will not be easily achieved. (See Wilkins, 2000 and Hull, 2001 for the difficulties.) However, the direction of change and momentum behind it are undeniable.
Doug Sanders, a non-Aboriginal legal scholar with perhaps a longer uninterrupted involvement in Aboriginal issues than any of his colleagues, recently offered the following policy advice.
There is a consensus that the justification for Aboriginal rights is respect for Aboriginal difference and separate Aboriginal identities. Respect for Aboriginal difference means that the larger society and its legal system should not vigorously police the minority. Minorities need space within the larger society. At the same time, they should not be artificially isolated from the life around them. Some balance is needed (Sanders, 2001: 36; See also Havemann, 1999: Chap. 18.)
A rephrasing of Sanders for the explicit citizenship focus of this paper suggests two requirements for a viable long-run citizenship policy for the Indian peoples of Canada. Such a policy has to respond to the desire of Indian peoples for positive differential treatment/distinct status in terms of self-government and/or rights. It has to do so in such a way that Indian peoples and other Canadians feel and believe that we all belong to the same Canadian community. The first criterion is self-evident. The failure to recognize it led to the defeat of the 1969 White Paper. Now, however, it is no longer a matter of choice. It has constitutional status in S. 35 of the 1982 Constitution Act. The second is no less important, although it receives less attention in the literature.
The apparent simplicity of these two criteria—respect for and accommodation of difference, and psychological identification with other Canadians in a pan-Canadian citizenship—should not blind us to how far we are from meeting them. John Borrows has recently defined Aboriginal peoples as ‘uncertain citizens’ (Borrows, 2001), a labelling that reflects the impact of a lengthy history of maltreatment, deprivation, and especially for status Indians, a systematic exclusion for previous generations from civic membership in the encompassing Canadian society. Overcoming a deeply divisive history is not easy. Indeed Andrew Sharp, writing of New Zealand, but in language also applicable to Canada, after asserting that ‘Maori and Pakeha have separate and often contradictory conceptions of what justice demands,’ argues that ‘sustaining a political society… means really living with difference, hence living with injustice, [while] continually negotiating its distribution’ (Sharp, 1990: 1, 26) This means, of course, that ‘uncertain citizens’ is likely to be a long-lived status.
As already noted, the two comprehensive attempts to find a viable policy for a rapprochement—the 1969 White Paper and the 1996 Royal Commission on Aboriginal Peoples—both failed to meet the two criteria suggested above. The White Paper, addressed only to Indian peoples, failed to accommodate, indeed ignored, their desire for a continuing distinct status, albeit one that this time gave them a positive niche in the constitutional order. RCAP failed on the other dimension. Although its recommendations were not a recipe for independence, the Report was above all a document of Aboriginal nationalism (‘Aboriginal’ because its terms of reference included Inuit and Métis as well as the Indian peoples of Canada). It failed to address the issue(s) of common belonging, of a country-wide citizenship, and the need for some fellow-feeling to sustain empathy with non-Aboriginal Canadians. It is unclear whether the commissioners understood the significance of this consideration.
Helpful guidance in thinking our way through the ambiguities and complexities of this difficult policy area comes from Rogers Smith’s historical analysis of US citizenship laws (Smith, 1997) and Charles Taylor’s recent writings on the need for a degree of common identity and community cohesion for the effective functioning of a contemporary democracy (Taylor, 1996, 1999, 2001).
Historically, according to Smith, American citizenship laws have been home to illiberal, undemocratic exclusions at various times (Smith, 1997: 1, 2, 3, 15, 29). Similar patterns of exclusion, with that of status Indians being the most striking, have been pervasively present in the Canadian past (Cairns, 1995b). Smith’s admonitions derived from American history that governments ‘are more likely to use their powers to aid those who are their citizens than those who are not’ (Smith, 1997: 31) could easily have been extracted as the lesson of Indian policy in the first century after Confederation. It has continuing relevance by suggesting that there are limits to differentiated citizenship, that at some point recognition of difference can so reduce the residual citizenship that it can no longer sustain a meaningful solidarity or empathy.
Smith underlines the volatility of American citizenship policy, tracking its zigzag route between universalism and exclusionist ascriptive criteria. No devotee of Whig history, he warns that ‘neither the possession nor the fresh achievement of greater equality can guarantee against later losses of status due to renewed support for various types of ascriptive hierarchy’ (Smith, 1997: 471). In practical terms, this suggests the imperative necessity of a sensitive balancing act so that the positive recognition of difference by, for example, a constitutionalized third order of Aboriginal government, does not contribute to a revived marginalization and outsider status.
Smith agrees with Charles Taylor (see below) that governments and leaders are driven by the necessities of political life to fashion a people, a community with sufficient solidarity to think of itself as a ‘we’ group—one for whom reciprocal responsibility for each other is natural. This, Smith asserts, is a huge problem, for contemporary states contain many peoples whose ‘traits give them reason to decide that their primary political identity and allegiance is to some group other than that defined by the regime governing the territory in which they reside’ (Smith, 1997: 32).
Similar points have recently and repeatedly been made by Charles Taylor. Free societies, based on citizen democracy, ‘require a degree of cohesion, of willing loyalty and support from their members… [such] societies based on the legitimating idea of popular sovereignty have to be able to understand themselves as deciding together, and therefore deliberating together, and this presupposes a certain common focus, a common sense of what the society is concerned with, around which public debate takes its shape.’ We ‘neglect at our peril,’ he argues, ‘[such] goals like social harmony, a sense of solidarity, mutual understanding and a sense of civility’ (Taylor, 2001: 4; see also Taylor, 1996, 1999; and Wilkins 2000).
Both Smith and Taylor are responding to what the Aboriginal law professor John Borrows described, following Kymlicka and Norman (2000: 39-40), as an essential component of a functional citizenship, its contribution to social cohesion, which ‘facilitates empathy, common concern and compassion that are essential to the functioning of any civil society. It encourages the removal of barriers that restrict sharing and exchange, and thereby assists in the free flow of goods, services, affluence and assistance’ (Borrows, 2001: 23). Conversely, of course, a weak overarching citizenship, one that is reluctantly adhered to by a discrete minority, would weaken empathy and compassion in the long run and discourage that flow of goods, services, affluence and assistance.
Borrows observes that the Canadian Supreme Court, which has become one of the leading players in the search for reconciliation between Aboriginal and non-Aboriginal Canadians, quite properly concerns itself with social cohesion in its decisions. He noted and applauded the Court’s encouragement of negotiation, its efforts both to recognize rights and to develop a jurisprudence of when they might be restricted in the interest of ‘societal stability… [thus] illustrating] sensitivity to the interests of both Aboriginal and non-Aboriginal peoples’ (2001: 29), and its thesis that the recognition of Aboriginal rights ‘must be directed towards reconciliation… with the sovereignty of the Crown’ (2001: 32), which translates into reconciliation with ‘the broader political community of which they are part’ (2001: 34).
The Court’s concern for social cohesion is reinforced by the position of the federal government. The federal government has never wavered from its position that the inherent right of self-government is to be exercised ‘within Canada.’ It has been equally adamant that the Charter of Rights and the Canadian Human Rights Act must apply in self-government agreements (Sanders, 2001: 8, 10). The Aboriginal peoples whose Aboriginal and treaty rights are constitutionally recognized in S. 35 of the 1982 Constitution Act are ‘aboriginal peoples of Canada.’ (See Sharp, 1990: Ch. 14 for strong judicial and political (Pakeha) assertion of the sovereignty of the New Zealand state when confronted with Maori claims.)
The jurisdictional meaning of ‘within Canada’ is spelled out in the federal government 1995 policy statement Aboriginal Self-Government (Irwin, 1995). The statement is adamant that the recognition of self-government, even if inherent, is to be implemented within the Canadian constitutional framework. From the federal perspective, the jurisdiction of Aboriginal governments will likely extend to ‘matters that are internal to the group, integral to its distinct Aboriginal culture, and essential to its operation as a government or institution’ (Irwin, 1995: 5). In some areas neither integral to Aboriginal culture nor internal to the group, but where some Aboriginal jurisdiction might be negotiated, it will be subject to federal and provincial paramountcy. No deviation will be allowed ‘from the basic principle that those federal and provincial laws of overriding national or provincial importance will prevail over conflicting Aboriginal laws’ (Irwin, 1995: 11). Finally, there is a lengthy list of subject matters ‘where there are no compelling reasons for Aboriginal governments or institutions to exercise law-making authority’ (Irwin, 1995: 6). They include subject matters related to sovereignty, defence and external relations, and ‘other National Interest Powers,’ including management of the national economy, national law and order, health and safety, and specific federal undertakings such as aeronautics and the postal service.
This clearly indicates the federal government view of the limits to Aboriginal self-government. On the whole, the great affairs of state will remain in federal hands. Many of the services and policies that will apply to First Nations members will come from federal and provincial governments, and for off-reserve Indians also from municipal governments.
Perhaps if and when the constitutional system settles down a constitutional theory will emerge to describe what we have become. That First Nations and other Aboriginal peoples will have some special constitutional recognition and self-governing space in the constitutional framework may be assumed, given the interplay between Aboriginal nationalism and the recognition and affirmation of ‘aboriginal and treaty rights’ in the 1982 Constitution Act. That such recognition will be within Canada is also predictable. The federal government has indicated the subject matters it will reserve for itself.
We are in a transition phase in which competing positions are being staked out. The image that emerges is one in which the federal and provincial governments impose Canadian constraints and First Nations inject demands for recognition and jurisdiction into what is in effect an ongoing constitutional dialogue. Two high-profile questions are still without an answer. Can we and will we develop a second dialogue to address urban Aboriginal issues, one that is not simply a servant of the existing nation-to-nation theme? And will the outcome some decades hence meet Charles Taylor’s requirement for a functioning contemporary democracy: a high degree of overall citizen commitment, mutual trust and a strong collective identity (Taylor, 1999)? The conditions necessary for their achievement, particularly for a strong collective identity encompassing the non-Aboriginal majority and Indian peoples, are lacking. A history of past exclusion and a litany of mistreatment and dispossession stored in collective memories generate a suspicious watchfulness. Taylor’s thesis that Canadians must learn to share identity space (Taylor, 1999: 281) is a project still in its early stages. Carens underlines the ‘paradox… that the very concepts and institutions (aboriginal self-government, differentiated citizenship) that seem the most promising in terms of leading aboriginal people to feel as though they really belong to Canada as a political community are ones that may lead non-aboriginal Canadians to feel as though aboriginal people no longer belong’ (Carens, 2000: 198, see also 193-4). The search is a for a coexisting balance in which recognition of difference and support for commonality are not seen as unremitting rivals, but as complementary, both at the level of institutions and civic identities.
The concerns of both sides are legitimate and understandable. The Canadian federal state seeks to ensure future positive links between itself and members of First Nations. This is not an easy task, given Canadian history. The state’s authority is diminished if some of its peoples do not see it as their state. First Nations with a land base seek governing powers to increase their leverage against the overwhelming pressures from the majority society. Gaining reasonable leverage is immensely difficult given all the constraints imposed by small numbers and limited resources. Finding a workable compromise between these conflicting objectives remains a distant goal. Possibly Fleras and Maaka are right, that a ‘degree of ‘standing apart’ may have to precede ‘working together’ (Fleras and Maaka, 2000: 114). Borrows’ description of Aboriginal peoples as ‘uncertain citizens’ (Borrows, 2001) should not, given the divided ‘we’ that Canadians have inherited from a colonial past, be viewed as a sign of failure but as a modest achievement.