White People Can't Live Here - Six Nations Racism

[Smallc]

Self government brings reserves to about the same level as a province but in a totally different system. It doesn't make them in any way separate from Canada.

[hitops]

Institutionalized ... in the 'Indian Act'.

So who has to fix that?

.

No, just by this law.

Edited June 21, 2014 by hitops

[cybercoma]

The constitution is supreme law of the land. Aboriginal rights cannot exist in a vacuum

You're playing a silly semantic game. You know exactly what's being argued. Section 35(1) of the Constitution clearly states that it recognizes existing treaties and obligations to the First Nations. In other words, they existed before the Constitution and outside of it. They are re-affirmed within it through section 35. Yes, the Constitution can be changed, but those rights and obligations existed before it and the courts can and will recognize that they exist outside of it, if it ever came down to that.

[Smallc]

How can something exist outside of the Constitution? The rights don't exist unless they are written into law. They are Constitutional rights and so they must be treated as such, but they can be changed. Saying they exist outside of the Constitution and that the courts can simply disregard and legitimate amendment is ridiculous.

Edited June 22, 2014 by Smallc

[Smallc]

BTW, the constitution act, 1982 is not the entirely of the Constitution. The BNA Act, treaties, royal proclamation, and many other documents make up the Constitution as well as many unwritten conventions. Nothing is outside of the Canadian Constitutional sphere.

[jacee]

How can something exist outside of the Constitution? The rights don't exist unless they are written into law.

cc is correct that Aboriginal rights existed before contact, predating any agreements with Euro nations.

They are Constitutional rights and so they must be treated as such, but they can be changed. Saying they exist outside of the Constitution and that the courts can simply disregard and legitimate amendment is ridiculous.

Changing the Constitution - not going to happen but ... - could in theory change Canada's 'recognition and affirmation' of Aboriginal rights, but it cannot cause those rights to cease to exist.

Indigenous Peoples have rights regardless of country, laws, treaties, etc.

Countries have different approaches, different degrees of recognizing and addressing those rights, but the rights exist nonetheless.

.

[Smallc]

That's ridiculous. Rights and laws can't exist in a country outside if its jurisdiction.

[Smallc]

It's almost like you're saying that aboriginal people have some kind of untouchable divine right, but as an atheist, I don't really care.

[bush_cheney2004]

Do atheists believe in divine kings and queens and royal charters and crown sovereignty for lands across oceans and making "aboriginals" subjects to take their land ? Is that why atheists don't care ?

Edited June 22, 2014 by bush_cheney2004

[Rue]

The Royal Proclamation of 1763 stated all land west of the Appalachians could NOT be taken from aboriginals unless by their consent through treaties.

Today we have to consider the above, s.35 of the Constitution Act, s.25 of the Charter.

R. v. Sparrow,1990 was a leading case which stated s.35(l) of the Constitution Act granting aboriginal peoples land rights was not unlimited, it didn't say what the limits would be.

The cas e of McIvor v. Canada in 2009 stated an aboriginal woman should not lose her status rights because she married a non native as it was said the old tradition of native men being able to marry non native women and maintain their status, but native women marrying non native men lost their status was considered in violation of s.15 of the Charter.

Its safe to say our legal system is based on the legal assumption that when Canada was created in 1867 we agree to inherit and honour any obligations the crown had entered into with native peoples. The treaties define the obligation an the constitution simply recognizes the fact that we go to the reaty itself to see what it is that we inherited as legal obligation.

All our constitution really does is to recognize pre-existing treaties as laws we must follow.

Where we have some confusion is when aboriginal rights collide with other human rights. What we now know from McIver is that the Supreme Court of Canada if it thinks an aboriginal custom discriminates against gays or women, it would step in and over-ride that custom but only where that custom creates legal inequity.

When it comes to land rights, the Supreme Court has already said, it will never abandon the obligations inherited under aboriginal treaties

Now let's talk briefly about the Indian Act which no one likes whether they be native or non native.

It is because we wanted to segregate aboriginals to reservations and take away their rights, we agreed to compensate for taking away their rights to live where they wanted with certain benefits. Those benefits conferred through native status designed to compensate the natives, were supposed to offset the racism and disadvantages by forcing natives to those reservations.

Today "we" means those of us Canadians who are non status Indians and inherit the legal obligations of our government.

Now some of you may argue, its not fair aboriginals get certain rights, but it was also unfair they had to be given those rights as a compensation for taking away other rights from them.

Yes there is a clash between past treaties we agreed to follow and current legal practicalities and cultural factors that collide with past ones.

So the Supreme Court tries to balance the legal obligations we inherited in the past with modern day cultural conflicts.

Our system is what it is because we chose not to simply kill off all the aboriginals as the Spaniards did in South America.

We were much more polite in our implementation of racist laws.

Reserves today are an inherited curse. They are the site for rampant mass suicide of youth, alcoholism and drug addiction of adults, third world conditions, much cruelty and neglect of animals, domestic violence and rape, and mental and physical illnesses directly related to poverty and environment and include tuberculosis, cancer, heart disease, diabetes, depression, dementia from alcohol and drug sniffing, fetal alcohol syndrome, on and on.

I think before anyone gets too hot under the collar about native status on reserves they try understand reserve life for the most part is a failure and a spiritual prison that is fueling a mass death rate of native peoples particularly the young.

Come up with a better idea other than the laws we have and I will be the first to listen.

It's easy to bash the way it works now. What is the alternative? For those of you who say, get rid of all the privileges you think natives have on reservations just what privileges do you mean? Do you mean the inability to work, the lack of any basic services such as water, electricity? Do you mean the genocide of their children through mass suicide because of the sheer lack of anything to do?

Do you mean the alcohol, glue sniffing, paint sniffing? What do you mean the tuberculosis, cancer, diabetes heart disease, fetal alcohol syndrome, deformities, dental decay and blindness>

Do you mean the lack of hospitals? Do you mean the homes that contain toxic mould?

Wait to you mean the wild dogs that run rampant with rabies and distemper and have to be shot because there is no animal control and vet care for them?

What you want to strip them of such benefits? Please do so Take them. Then while you are at it, since they now no longer have to live in reserves I take it they will be now moving to homes next door to you and getting hired by you and marrying your children right?

Right.

Edited June 22, 2014 by Rue

[Smallc]

Royal blood, as ridiculous as they may seem on the surface, is well within the sphere of Constitutional law and can be changed with a Constitutional amendment. Some here are trying to say that aboriginal rights exist outside of that, which is impossible.

Edited June 22, 2014 by Smallc

[TimG]

Yes, the Constitution can be changed, but those rights and obligations existed before it and the courts can and will recognize that they exist outside of it, if it ever came down to that.

There are no laws outside of the constitution. Any treaty obligations are deemed to be part of the constitution and there is no part of the constitution that cannot be changed or at least demoted in priorities. The only question is what the amending formula is. In the worst case, the constitution can be completely torn up and replaced with a new one (a likely consequence of any vote for separation by Quebec).

Now when it comes to aboriginal issues the existing constitution is very clear that aboriginals cannot veto changes which affect their rights. The wording was deliberate because no one with a brain thought it would be a good idea to make 99% of the country hostage to the demands of a privileged minority. That said, the courts have a long tradition of ignoring the intent of the writers of the constitution and making crap up that suits whatever political correct BS they learned in law school. However, there is only so much the court would do if faced with a amendment passed by >50% of population in all 10 provinces. It is possible that they would reject it but it would likely be followed by another amendment that would fire all of the justices and replace them with justices that would interpret laws based on the intent of the writers instead of some politically correct BS.

Personally, I would never try to actually get rid of the rights because it would be too divisive. I would simply pass an amendment that requires that the native rights be interpreted in ways that do not impose undue burdens on the non-natives in terms of the taxes that they pay or how they govern their communities. This "no undue burden" requirement would be given more priority than "aboriginal title" if they come into conflict. I would love to see native rights activists try to argue that their rights should be honored no matter what the burden is placed on the rest of society.

Edited June 22, 2014 by TimG

[Smallc]

The Royal Proclamation of 1763 stated all land west of the Appalachians could NOT be taken from aboriginals unless by their consent through treaties.

In a way, yes, but:

And whereas it is just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them. or any of them, as their Hunting Grounds.--We do therefore, with the Advice of our Privy Council, declare it to be our Royal Will and Pleasure. that no Governor or Commander in Chief in any of our Colonies of Quebec, East Florida. or West Florida, do presume, upon any Pretence whatever, to grant Warrants of Survey, or pass any Patents for Lands beyond the Bounds of their respective Governments. as described in their Commissions: as also that no Governor or Commander in Chief in any of our other Colonies or Plantations in America do presume for the present, and until our further Pleasure be known, to grant Warrants of Survey, or pa

It then goes on to say:

And We do further declare it to be Our Royal Will and Pleasure, for the present as aforesaid, to reserve under our Sovereignty, Protection, and Dominion, for the use of the said Indians, all the Lands and Territories not included within the Limits of Our said Three new Governments, or within the Limits of the Territory granted to the Hudson's Bay Company, as also all the Lands and Territories lying to the Westward of the Sources of the Rivers which fall into the Sea from the West and North West as aforesaid.

http://avalon.law.yale.edu/18th_century/proc1763.asp

So yes, unceded lands are aboriginal....under the "protection" (in other words, jurisdiction) of the Crown. Reserves are, quite clearly under the sovereignty of the Crown, and very much a part of Canada.

As to what the Constitution says - this document is a Constitutional one. I think some are having trouble with the idea that the Constitution is not just the acts so named.

[Remiel]

I think you would find many indigenous Canadians believe that we cannot get rid of the Crown without their consent. I find that completely preposterous for all the reasons its was really crappy of the Canadian government to force foreign governmental systems upon the bands. But the view is out there.

[bush_cheney2004]

If the by-law is "racist", it is little wonder given the band's experience with Crown acts and treaties designed to subjugate, assimilate, and even eliminate native people and their land "claims". "Blame the British" only works so long.....

[jacee]

Personally, I would never try to actually get rid of the rights because it would be too divisive. I would simply pass an amendment that requires that the native rights be interpreted in ways that do not impose undue burdens on the non-natives in terms of the taxes that they pay or how they govern their communities. This "no undue burden" requirement would be given more priority than "aboriginal title" if they come into conflict. I would love to see native rights activists try to argue that their rights should be honored no matter what the burden is placed on the rest of society.

That 'balancing' of rights already exists:

The decision provides yet another example, like so many decisions before it, of the SCC emphasizing the importance on balancing Aboriginal and treaty rights with the rights of other Canadians.

http://www.mccarthy.ca/article_detail.aspx?id=5644

.

Edited June 23, 2014 by jacee

[TimG]

That 'balancing' of rights already exists:

I know. The problem is many native leaders don't seem to understand that and make absurd demands that have to be refused (and people like you heap scorn on the government for not giving natives whatever they ask). On top of that I don't trust the courts since carefully worded compromises are destroyed when lower courts rule on individual cases. I would rather see an explicit statement that the collective rights of Canadians of a whole are to be given priority when they come into conflict with the collective rights of Aboriginals. If nothing else such an explicit clause should make it clear that aboriginal rights are privileges granted by Canadians - privileges that can be taken away if there was a compelling need. Edited June 23, 2014 by TimG

[jacee]

I know. The problem is many native leaders don't seem to understand that and make absurd demands that have to be refused (and people like you heap scorn on the government for not giving natives whatever they ask). On top of that I don't trust the courts since carefully worded compromises are destroyed when lower courts rule on individual cases. I would rather see an explicit statement that the collective rights of Canadians of a whole are to be given priority when they come into conflict with the collective rights of Aboriginals. If nothing else such an explicit clause should make it clear that aboriginal rights are privileges granted by Canadians - privileges that can be taken away if there was a compelling need.

Ya no doubt you'd like to see that, but it isn't going to happen. And it isn't necessary.

You slam existing law when you don't really know what it is.

You are all ready to tear up the Constitution to provide something that already exists.

And Canadians say ... HAHAHAHAHA!

Your credibility's in the toilet!

.

[jacee]

In a way, yes, but:

And whereas it is just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them. or any of them, as their Hunting Grounds.--We do therefore, with the Advice of our Privy Council, declare it to be our Royal Will and Pleasure. that no Governor or Commander in Chief in any of our Colonies of Quebec, East Florida. or West Florida, do presume, upon any Pretence whatever, to grant Warrants of Survey, or pass any Patents for Lands beyond the Bounds of their respective Governments. as described in their Commissions: as also that no Governor or Commander in Chief in any of our other Colonies or Plantations in America do presume for the present, and until our further Pleasure be known, to grant Warrants of Survey, or pa

It then goes on to say:

And We do further declare it to be Our Royal Will and Pleasure, for the present as aforesaid, to reserve under our Sovereignty, Protection, and Dominion, for the use of the said Indians, all the Lands and Territories not included within the Limits of Our said Three new Governments, or within the Limits of the Territory granted to the Hudson's Bay Company, as also all the Lands and Territories lying to the Westward of the Sources of the Rivers which fall into the Sea from the West and North West as aforesaid.

http://avalon.law.yale.edu/18th_century/proc1763.asp

So yes, unceded lands are aboriginal....under the "protection" (in other words, jurisdiction) of the Crown. Reserves are, quite clearly under the sovereignty of the Crown, and very much a part of Canada.

I don't think anyone has questioned that Canada has sovereign control over the land, though there are various interests in various parts of the land that must be balanced.

No where in the RP1763, though, does it say that 'Indians' are subjects of the Crown. They are specifically and intentionally set apart from "subjects".

As to what the Constitution says - this document is a Constitutional one. I think some are having trouble with the idea that the Constitution is not just the acts so named.

True.

Aboriginal rights exist throughout the treaties, BNA Act, RP 1763, and many foundational documents and case law, all of which are in effect 'constitutional law'.

[Accountability Now]

No where in the RP1763, though, does it say that 'Indians' are subjects of the Crown. They are specifically and intentionally set apart from "

It says it in pretty much every numbered treaty which is more current and accepted than the Rp1763.

Here's the text from Treaty 7:

"And the undersigned Blackfeet, Blood, Piegan and Sarcee Head Chiefs and Minor Chiefs, and Stony Chiefs and Councillors on their own behalf and on behalf of all other Indians inhabiting the Tract within ceded do hereby solemnly promise and engage to strictly observe this Treaty, and also to conduct and behave themselves as good and loyal subjects of Her Majesty the Queen"

[Bonam]

It matters not one iota if you give a damn or not. We made a deal with them, and they have to honor the terms of that deal every bit as much as we do.

No one, then or now, has or had any right to make any deal for the entirety of a race of people in perpetuity. Any such right assigned to anyone at any time is a fabrication and need not be respected today.

[jacee]

That's ridiculous. Rights and laws can't exist in a country outside if its jurisdiction.

...

It's almost like you're saying that aboriginal people have some kind of untouchable divine right, but as an atheist, I don't really care.

Me neither.

Nothing "divine" here: Just the fact of Kanata's prior occupancy by Indigenous Nations - pre-contact - and thus their pre-existing rights and titles to the land.

We live here by virtue of our treaties with Indigenous Nations, now incorporated into our Constitution.

.

Edited June 23, 2014 by jacee

[dre]

No one, then or now, has or had any right to make any deal for the entirety of a race of people in perpetuity. Any such right assigned to anyone at any time is a fabrication and need not be respected today.

I disagree. The treaties essentially are deals we made for land. They are binding legal contracts, and must be honored by both parties.

And yes... groups of people most certainly do have the right to negotiate such things in perpetuity. In fact thats where most of the worlds national borders come from.

need not be respected today.

In a nation of laws contracts and treaties DO need to be respected.

Edited June 23, 2014 by dre

[Bonam]

I disagree. The treaties essentially are deals we made for land. They are binding legal contracts, and must be honored by both parties.

And yes... groups of people most certainly do have the right to negotiate such things in perpetuity. In fact thats where most of the worlds national borders come from.

They can negotiate things on behalf of a country or other sovereign entity, but not on behalf of a race of people.

[dre]

They can negotiate things on behalf of a country or other sovereign entity, but not on behalf of a race of people.

Thats exactly what they did. The treaties were negotiated between tribal governments and the crown. Not races.