The Binds that Tie

Mike Myers

After nine years the Canadian Human Rights Tribunal has made a landmark and far reaching decision about the quality of Indigenous child welfare. The really good news is that this is a legally binding decision, one that cannot be easily avoided or brushed off by the federal or provincial governments.

What I find encouraging is that there may now be a venue to which Indigenous nations and peoples can bring their issues with the settler governments and have an opportunity to get a fair and binding decision. This has simply not existed before.

Up until the 1950s Indigenous nations and peoples weren’t allowed to bring court cases forward without the approval of either government. Our nations and peoples could not hire our own lawyers. Any lawyer we wanted had to be approved by the Indigenous bureaucracies – this doesn’t really change until the 1970s.

In 1948 the U.S. created the Indian Land Claims Commission and immediately made it impossible for Indigenous nations to regain land by limiting any settlement to monetary compensation only. If we want land back we have to use the monetary compensation to buy land from “willing sellers” and then the Department of the Interior will take this land into trust in our behalf.

No Indigenous government or person in their right mind has ever trusted the settler courts. We have been forced to take important issues into these traps because there has not been any other venue.

When the Canadian Human Rights Tribunal was created it was met with our ages old skepticism that this could be a good thing. After all it was being created by the settler government, how much could we really trust it?

Well now it appears there may be a new venue, but only in Canada. A quick Google to find an American Human Rights Commission or Tribunal is very disappointing. What does come up is the federal level Civil Rights Commission and a whole bunch of state, county and city human rights commissions. But not a national one.

To be perfectly clear there is a huge difference in the words “tribunal” and “commission”. Tribunal says right from the start someone or something is going to be on trial. But a commission pretty much tells you there will be studies and research that lead to a non-binding conclusion.

This binding aspect holds such monumental importance. As reported in the Canadian Press: “The quasi-judicial body published its findings nine years after a complaint from the Assembly of First Nations and The First Nations Child and Family Caring Society of Canada, which argued the federal government failed to provide First Nations children with the same level of services that exist elsewhere.

In its legally binding decision, the tribunal found First Nations are adversely impacted by the services provided by the government and, in some cases, denied services as a result of the government’s involvement.

‘The panel acknowledges the suffering of those First Nations children and families who are or have been denied an equitable opportunity to remain together or to be reunited in a timely manner,’ the ruling said.”

What has been found is not limited to child welfare concerns but cuts across the board into every aspect of federal control of Indigenous governance and lives. The next challenge should go after the federally supported schools that are equally chronically underfunded and denied any chance to grow and improve.

Hand-in-hand with education needs to be a housing challenge. The incredibly disastrous housing found in Indigenous territories is most certainly not of our design or desire.

Now comes the test of the new federal government in Canada and all of its rhetoric about nation-to-nation and honoring Indigenous rights. Here is the opportunity to do the right thing, not just talk about it.

There is already grumbling from their right wing about the costs and how this is going to upset their economic plans and agendas if they have to divert money to addressing this issue. But what they, and most Canadian settlers, are missing is that this is a strong lesson in the real cost of occupying a peoples’ lands, dominating their resources, and maintaining the colonial legacy created by the settler invasion of Turtle Island.

The right to care for our children and utilize resources to empower their future is a fundamental inherent right. A right that wasn’t surrendered or relinquished in any treaty. All the treaties are totally silent about this. But the Crown has always depended on the Doctrine of Discovery as the authority for their efforts to socially engineer us and as they once said, “Kill the Indian, but save the man”.

The education of our children is also an inherent right. There are clauses in several treaties where the Crown commits itself to provide schools, equipment and teachers. In some of the treaties it is stated, “..when the Indians so desire…” Our assumption has always been that such an education would, at minimum, be equal to what they provide to their own children.

Now the true costs of being an arrogant, racist settler filled with misconceptions of superiority are coming on to the table. Every occupying power has learned this lesson over the centuries and it is a lesson that brought down some of the empire builders because in the long run it is unsustainable.

Oppression and suppression destroy both the oppressed and the oppressor. The energy, determination and costs of maintaining the systems required for oppression are drained and eventually begin to collapse. On the other side the energy, determination and costs to resist the oppression are equally devastating. What is most confusing is that both sides know this but are unable to find a way to undo the system.

Every once in a while an opportunity arises that if seized can begin to bring peace to both sides. This ruling gives rise to such an opportunity.

The settler state has the opportunity to step away from its history and negative legacy. It has the opportunity to begin to build new systems that are actually based on equality and fairness. The oppressed have the opportunity to be innovative and creative in devising new approaches, new ways and bold enough to bring their best to the table.

Canada can try to wriggle their way out of this binding order but the only way off the hook for them is for us to allow them to wriggle out. For the first time in a long time we’ve got some leverage and advantage in our relations with the settlers. Let’s not squander this moment but use it to springboard to greater sovereignty, empowered authority and jurisdiction, and the creation of the best future we pass to our children and grandchildren.

Mike Myers is the founder and CEO of Network for Native Futures, a Native non-profit that works with Indigenous nations, communities and organizations internationally. The network's mission is to support sustainable development and nation re-building through providing of technical assistance, training and consulting.

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