Nesika: The Voice of B.C. Indians -- Vol. 2 No. 10 (October 1973 - Land Claims Issue) · UBCIC Periodicals

Nesika: The Voice of B.C. Indians -- Vol. 2 No. 10 (October 1973 - Land Claims Issue)

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Nesika: The Voice of B.C. Indians -- Vol. 2 No. 10 (October 1973 - Land Claims Issue)

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NESIKA

- Special Issue:
LAND CLAIMS (Gite memsing 8"
THE VOICE OF B.C. INDIANS

POSTAGE PAID IN VANCOUVER — 2nd CLASS MAIL REG. No. 3025 E> 18 . Vol. 2, No. 10S October, 1973

The torch is borne...

ek.

Se;

The early leaders of the Indian movement pose in front of the Parliament building,

(Photo courtesy of

where in 1972 Indian leaders stood also after the presentation of the B.C. land claims brief. Newton Studios, Ottawa)

Andrew Paull (Photo by Capital Press, Ottawa) . Peter Kelly

Page Two A NES IK A

3 ‘ October, 1973

The torch is passed. . .

Rosie Whimpkin of Fountain Village [Photo courtesy of The Sun]

nna

ALITTLE GIRL TRYING TO KEEP WARM [Photo courtesy of The Province] : . .. A YOUNG BOY FULL OF DREAMS [Photo courtesy of The Province]

Page Four A

NE S.1 K A

October, 1973

Nishga people plot their next move

By BOB JOSEPH
The Nishga people will meet at
' Kimeoleth, March, ’74, to discuss
their next move following their
successful day in the highest court
of this land.

In January, 1973 the Supreme.

Court of Canada handed down its

decision on the Calder land case. .

Three justices ruled that the
Nishga have Aboriginal Rights to
1,000 square miles of land in the

Nass Valley. Three others ruled’

that they do not,.and the seventh
Justice did not decide on the issues
of the case.

- But the decision was hailed by
Indian leaders across the country
as a victory because it is the first
time that Aboriginal Title has been
given legal recognition.

British Columbia’s only Indian
MLA, Frank Calder, refused to
make any statement or policy
announcement until the Nishgas
have their meeting. Calder is also
Chairman of the Nishga Tribal
Council. Hé may be. closer to
becoming a prophet than he thinks.

During British Columbia’s
centennial year, Calder rose in the
legislature to offer his
congratulations. Choking with
emotion he said, “I’m going to
predict in this centennial year that
some day we are going to be paid
for the land in this province.”

Now just about seven years later
the Nishgas have had their day in
court and have obtained a Supreme
Court split decision which gives
legal recognition to aboriginal.
title.

OPINION DEADLOCKED

Because the Supreme Court
justices were divided evenly on the
question, the matter has become
an issue for the politicians to
resolve. The federal government
reacted first by announcing it was
prepared to negotiate settlement of
the Yukon land claims. Then, in
August of this year, the govern-
ment said it was prepared to
negotiate. settlement with other
groups of Indian people who have
not entered into treaties.

The Nishga have never been in
doubt. about .their ownership of

Allied Indian Tribes of British
Columbia, and. both organizations
continually pressed for a court
hearing.
FROM TIME IMMEMORIAL

In a subsequent petition to the
federal government the Nishgas
declared, ‘‘From’ time im-
memorial the Nishga nation or
tribe of Indians possessed, oc-
cupied, and used the territory
generally known as the Valley of

the Nass River, the boundaries of-

which are well defined.”
The Nishgas asserted they were
the original inhabitants and had

their lands. It is almost 100 years \rights as such. They added that

since they first pursued their land
claims. In 1887 the Nass chiefs
appeared before a government
commission in Victoria to declare
ownership to the land in the Nass
Valley. :
“What we don’t like. about the
government is their saying this,
‘We will give you this much land.’
How can they give it when it is our
own?. We cannot understand it.
They have never bought it from us
or our forefathers. They have
never fought and conquered our
people and taken the land that way,

and yet, they say now that they will

give us this much land — our own
land.”

Although the Nishgas were
rebuffed at this hearing, they
pressed on and formed the Nishga
land committee in the 1890’s. They
raised money to further their land
claims and to obtain legal help.
They later joined efforts with the

their’ Aboriginal Rights were
guaranteed by the Royal
Proclamation of 1763. They stated
that no lands should be taken from

them unless purchased by the |

Crown.

“By reasons of our Aboriginal -

Rights above stated, we claim
tribal ownership of all fisheries
and the natural resources per-
taining to the territory above-
mentioned,” the petition read in
part. .

Under continued pressure from
the Nishgas and Allied Indian
Tribes of British Columbia, the
federal government named a
Special Joint Committee to study
the Indian claims in 1926. The Joint
Parliamentary Committee con-
cluded their hearing by ruling that

the Indians had not established a

claim based on aboriginal’ title.
The committee ordered that the
question of Indian title be‘ con-

sidered closed. However, the issue
was not dead because the ruling
didn’t say the Indians do not have a
claim,. only that they had not
established such a claim.

HEARING IN .1969
The Nishga continued their fight
and finally gained an appearance
in the British Columbia Supreme
Court in 1969. !

The Nishga nation sued the
province of British Columbia for
ownership of the Nass Valley. They
based their claim to ownership of
the land on: ~ os

(i) aboriginal occupation, a title
traditionally recognized by
English Law.

(ii) that this ownership is not
dependent on treaty or formal
government enactment.

(iii) if government recognition
ever was needed, it is to be found in
the Royal proclamation of 1763
which recognized the rights of
Indians to their land.

RESPONSE FROM B.C.

The Nishga appeal was not for
settlement but for a court
declaration that their title to their
ancient tribal territory exists and
has not been lawfully ended. The
provincial government responded
by saying that original Indian title,
if it ever existed, was taken away
in the colony of British Columbia
before Confederation in 1871.

The B.C, Supreme Court failed to
recognize aboriginal title. The
Nass Indians. appealed to the
British Columbia Court of Appeal

Nass

in 1970, but this. court agreed with
the earlier decision.

Relentlessly, the Nishga people
carried their fight. to the Supreme
Court of Canada, where Nishga
Tribal Council Chairman Frank
Calder described the Nishga Title
as follows: / .

“From time immemorial, the
River Nishga Indians
possessed, occupied and used the
Nass Valley ... and within this
territory the Nishgas hunted in its
woods, fished in its waters,
streams and rivers. Roamed,
hunted and pitched their tents in
the valleys, shores and hillsides.
Buried their dead in their
homeland territory. Exercised all
the privileges of free men in the
tribal territory. The Nishgas have
never ceded or extinguished their

aboriginal title within this
territory.”

TITLE NOT ENDED

Justices Hall, Spence, and

Laskin agreed with the Nishga and
ruled that their aboriginal title to
their land has not been ended. In
ruling that the Nishga ownership of
their land does not depend of
formal. government recognition,
Justice Hall said:
“INDIAN TITLE BASED ON
ABORIGINAL POSSESSION:
DOES NOT DEPEND UPON
SOVEREIGN RECOGNITION
OR AFFIRMATIVE ACCEPT-
ANCE FOR ITS SURVIVAL.”
On “discovery” of new. found

Continued on page 8A
See: NISHGA CLAIM

October, 1973

NES It KA

Page Five A

Summary: Claim Based on Native Title

The paper, .Claim Based on
Native Title, presents a case for
recognition of native title to British
Columbia, and for the resulting
need. for compensation for its loss.

Except for the ‘extreme nor-
theastern part of B.C. and small
areas of Vancouver Island, B.C.
Indians have not surrendered their
rights to territory within the
province by treaty or by any other
agreement, although reserves
have been set aside for them.

Objectives

1.To get recognition of native
title to the province.

2.To obtain compensation for
rights of occupancy, hunting,
fishing, etc. that have already been
lost. :

3. To have those rights that are
capable of being restored,
specially hunting and fishing.

Recog. of Rights

The paper says that native title

confers a right of occupancy, in-
cluding the right to use and exploit
economic potential of the land and
nearby waters (game, - produce,
minerals, and all other natural
resources), plus water, riparian
foreshore, and offshore rights.
This claim is presented without
prejudice to settlement of certain
current or. potential. individual

claims -for reserve size ad-
justment. But the claim includes a

DON WILLIAMS, Pengisdeta Indian Band Manager, ‘ shakes hands
In the background are Indian Affairs .

with the Prime Minister:

claim to reserve foreshore, and the
paper states that land claims of
B.C. Indians cannot be considered
until reserve foreshore is
satisfactorily dealt with.

Legal Precedents

The early governments ‘in
Canada set down precedents of
recognition of native title. The
claim states that recognition is
evident in the following:

1. Royal Proclamation of 1763.

2. Treaties of 1850, 1851, and 1852
made. by the Hudson’s Bay Com-
pany which was the instrument of
imperial policy at the time.

3. Disallowance by the Dominion
government of the B.C. Crown

Lands Act of 1874, on grounds of the _

B.C. Indians-not having given up
their lands to either government,
and of not providing compensation
for surrender of Indian lands.

4. Reciprocal Acts passed by the
provincial and federal govern-
ments of 1943 and 1960, effecting an
agreement on mineral claims on
Indian reserves, recognizing the
Indians’ ‘‘personal and usufruc-
tuary rights.”

Compensation

The. claim. states. that the lost
rights of Indian people in B.C. were
of real value.

Compensation should now be
made based on the following:

1. Land (including. timber and

Minister Jean Chretien and then Urban Affairs Minister Ron Basford.

(Staff Photo).

The land committee members of the Nishga, October 1913, Aiyansh. [Photo courtesy

An essential policy

minerals) — It is recognized that
restoration of these rights is not
practical, so compensation should
be in cash.

2. Hunting — Rights should be
restored, but where restoration is
not .posSible these rights should be
compensated for.

3. Fishing — Where these rights
are affected by international
conventions, some negotiations
should be made. -

The claim, otherwise, is for
preservation of rights and for
restitution of rights . where
these have been abolished.

Compensation is claimed
where the value of the right
has been lessened by pollution
or other environmental
damage.

Value of claim

The value to be given to rights
lost is the value at the time of
taking.

Native title is as good as fee
simple title, as was held in Tlingit
and Haida Indians of Alaska v. the
US.

Compensation to be paid should
be measured by the fair market
value of the Indian interest. as of
the time of taking, but payment
must be in today’s dollar
equivalent. ;

Date of taking

The claim states preference for
valuation on date of taking based
on dates when various rights in
various areas were lost. The same
is recommended for valuation of
lost hunting and fishing rights.
The claim includes simple in-
_ terest at 5% annually; from date of

A basic point of the claim is for
the federal government to make an

_ essential policy decision that the

moral and legal responsibility for
accepting the claim. based on
native title can no longer be
denied, and that the needed
measures to give justice to B.C.
Indian people will be taken at once.

The decision should be. followed
by legislation to the following ef-
fect:

1. Accepting the validity and-

justice of the claim as described in
the Union paper.

2. Recognizing that B.C. Indian
people had rights in accordance
with native title.

3. Recognizing the kind and
extent of rights as described in the
Union paper.

4. Recognition that B.C. Indian
people have been denied benefits of
those rights without compensation.

5. Providing expressly ~ that
compensation, will be assessed and
paid for, and, where possible, that
restoration will be made.

6. Setting out factors to be

considered in valuation, and fixing

eompensation.

7. Setting up a Parliamentary or
other committee to investigate and
report on the value of the claim,
and related other matters.

8. Making it clear that it is the
intention to introduce further
legislation for overall settlement.

Claims commish.

Two methods of settlement are
suggested — a claims commission,
and legislative settlement — and
the paper stated preference for the
claims commission.

The three-man commission
would have one member chosen by
the Indians, and one chosen by the

federal government, and one to be
agreed on by the other two as
chairman.

Proceeds of settlement

The paper recommends that,
while the claims of individual
bands might be considered
separately, the totality of awards
should be regarded as being
received under one general claim
to be used for the equal benefit of
all the Indians of B.C.

To administer the settlement
funds, the formation of an Indian
Development Corporation is
proposed. Regional corporations
are not proposed because of the
organization of Bands and Coun-
cils.

Operation of the . Indian
Development Corporation will
benefit Indian people in terms of
financial returns and _ of
development and training in ad-
ministration of financial and
business affairs.

Earnings of the corporation will
be paid to Band Councils on a per
capita basis; Band Councils, in
turn, will administer their share of
settlement funds for the benefit of
their bands.

Because the award is to be taken
as’$ fund for all Indians, payment
of compensation should be annual
and over a number of years. i:

Decision on Indian child’s
adoption case to be appealed

Nearly a year ago, in December

-.1972, the Supreme Court of British

Columbia: heard a case in whicha
ion-Indian couple wished to. adopt

The’ natural parents. were

“against the adoption because they

wanted the child to be raised by
relatives. Several. Indian witnesses
told the judge that it was usual in
‘Indian communities for relatives
to raise a child when the parents,
for one reason or another, cannot
do so. The Indian -witnesses con-
vinced the. judge that native
custom, still in general use,
provides for informal adoption by
relatives.

The lawyer for. the. Indian
parents raised. a quéstion of law.
He argued that the Adoption Act,
which is a provincial law, cannot

The Native Voice]

tatus Indian child who had been -
in their care’as a foster child.

apply to a child who has Indian
status because the Indian Act,
which defines Indian status, is a
federal law. The judge said that
because a question of con-
stitutional law was raised, that he
would ask the Attorney- General of
Canada. and the Attorney-General
of British Columbia to give their
opinions.

They did so in April of this year.
They both said that they saw no
problem about Indian status. The
judge did not agree. He found that
the provincial law would affect the
status of the child. He ruled that
the B.C. Adoption Act cannot be
applied to status Indian children.

The decision has-been appealed
and so the case goes to a higher.
court, It is expected that his case
will be heard by the B.C. Court of
Appeal quite soon.

Page Six A

Aboriginal title exists in the Nass

Land Claims by Indian people in
British Columbia have finally
gained recognition in the courts
and from the federal government.

_ This historic achievement oc-
curred January, 1973 when three
Justices of the Supreme Court of
Canada ruled that the Nishga
people have aboriginal title to the
_lands in the Nass Valley.

The decision is a victory for all
Indians in the province because it
makes the principle of aboriginal
title real.

As a result the federal govern-

ment has reversed its position on
Indian land claims based on
aboriginal title. In August, 1969 the
federal government refused to
recognize land claims, when, in
Vancouver, Prime Minister
Trudeau said:
- “Aboriginal claims to land...
are so general and undefined that it
‘is not realistic to think of them as
SpeenG claims capable — of
remedy .

RIGHTS NOT RECOGNIZED

It was clear that the Prime
Minister and his cabinet had no
intention of recognizing aboriginal
rights when he added in part:

“But aboriginal rights, this

“really means saying, ‘We were
here before you. You came and you
took the land from us and, perhaps
you cheated us by giving us some
worthless things in return for vast
expanses of land and we want to re-
open this question. We want you to
preserve our aboriginal rights and
restore them to us.’ And our an-
swer ... our answer is no.”
. Following the Supreme Court
ruling on the Nishga Land Claim
the Prime Minister changed his
mind. He admitted that Indian
people have more ‘legal rights’
than he had previously thought.

On August 8, 1973, four years
later to the day, the federal
government publicly reversed its
position on aboriginal title. In an
official policy statement an-
nounced by Indian Affairs Minister
Jean Chretien, the government
said it was now ready to negotiate
a settlement to land claims.

The startling announcement .was
a dramatic reversal by the
government from the position they
held in 1969.

The policy statement announced
by Indian Affairs Minister Jean
Chretien opens’ by saying the
government has lawful! obligations
to meet with Indian people who
have entered treaties with the
Crown. The statement says the
government recognizes a. con-
tinued acceptance of responsibility
under the British North America
Act for Indians and lands reserved
for Indians.

GOVERNMENT RESPON-
SIBILITY

“The government sees its
position in this. regard as an
historic evolution dating back to
the Royal Proclamation of 1763,
which whatever differences there
imay be about its judicial in-
terpretation, stands as a_ basic
declaration of the Indian people’s
interest in land in this country,”
the statement adds.

The statement says the concern
is with the claims and proposals for
settlement from Indian people who

have not entered a_ treaty
relationship with the Crown. It
points out that such claims find
their basis in what is variously
described as ‘‘Indian Title,
Aboriginal Title, Original Title, or
Usufructuary Title.

“In essence these claims relate
to the loss of traditional use and
occupancy of lands in certain parts
of Canada where Indian title was
never extinguished by treaty or
superceded by law,”’ it continues.

The lands in question lie in British.

Columbia, Northern Quebec, The
Yukon and Northwest Territories,
it states.

“The government has been fully
aware that the claims are not only

Territories,” says Wilson.

for money and land but involve the
loss of a way of life,”’ the Govern-
ment admits. It adds that Indian

claims must be settled through

negotiations which they feel is the
most promising avenue. .

The- paper adds that any
agreements reached. ‘‘will be
enshrined in legislation, enacted
by Parliament, so that they will
have the finality and binding force
of law. The government is now
ready to negotiate with the
authorized representatives of these
Native people on the basis that
where their traditional interest in
the lands concerned can be

NESIKA

established, an agreed form of
compensation or benefit will be
provided to the Native peoples in
return for their interest,” it says.
B.C. MUST BE INVOLVED

The statement points out that the
provincial governments concerned
must be involved in — the
negotiations because they are the
owners of some of the lands in
question. These provinces have
been informed of the new federal
government position on land
claims and have been urged to
participate in the talks.

“It is therefore reasonable to

expect that provincial govern-
ments should be prepared to
provide compensation,” it states.

“The government is now ready
to negotiate the claims of Indian
people in British Columbia and
regards the participation of the

provincial governments as a-

necessary ingredient for. a
satisfactory settlement,’’ the
statement declares.

Negotiations are underway with
the Yukon Indians for a settlement
for their land claims. The
Government expresses its
willingness to negotiate with In-

Lead

rush

By BOB JOSEPH
British Columbia’s Indians
should not allow themselves to be
forced into a quick settlement of
their land claims according to a
young Indian leader,

He also warns that personality _

differences among leaders should
be overlooked while they prepare

for negotiations with the federal.

government on land claims.

He is Bill Wilson, 29, a recent
graduate of the University of
British Columbia Law School. The
calm, articulate young leader
places his faith, however, in the

. upcoming Chiefs convention to be

held in November at Port Alberni,
where he feels the elected
representatives of the Indian
people will meet the challenge.
“We must now meet with the

Federal. government ‘to~ find:

whether they are serious or not —
or just rushing into settlement
because of the situation in the
Yukon “and Northwest

He hopes the government’s in-
tention is to get into meaningful
negotiations that should take as
long as is necessary to resolve all
the issues which are many in a
province as diverse as B.C.

“People on the coast for instance
have different needs than those in
the Interior, these.differences have
to be considered and that is why
our claim must be dealt with dif-
ferently,”’ he asserts. ° /

“One thing that Indian people of
B.C. should not allow themselves to
do is to be forced into a quick
settlement because it is politically
expedient for the government,”
Wilson said in an interview. He
suggests the initial approach
should be to negotiate for a general
claim for all of B.C. and to follow it
up with local area claims when.
necessary. ~

CLAIM SHOULD NOT DRAG ON

“I don’t think the Federal
government wants to negotiate for

40 or 50 years, they want to do it

once and wholly,” he adds. He
fears any other appcoach will end
up like the U.S.-Alaska settlement
which dragged on for 40 years with
little satisfaction for the Indian
people there.

Wilson has no reservations about
what his part, or his interest, is in
the future of Indian land claims in

-B.C. “If and when we arrive at the

negotiation stage let us take in the
best possible people we have,”’ he
says. ‘‘One of the reasons I went to
law school was to equip and ready
myself to face the. government
lawyers we will be confronted
with,” he states.

He adds the government will not
field a bunch of incompetents but
the best they have. Despite his
unique achievement as a law
school graduate Wilson has a
feeling for the profession bordering

on disdain. “It’s a foreign system

designed to perpetuate the status

er says don’t
to settlement

quo of white and middle class
society,” he says. He suggests that
such things as property rights,
money rights and other rights do

BILL WILSON |

not chande hands because: “Those
are the whole basis of the natural
conservatism of the law.”
-““Laws.were made so that people
at the top remain at the top, and
law students are brainwashed into
becoming lawyers who will per-
petuate the system,”’ he says.

Wilson is committed to the will of

his people both status and non-°

status.

“We will need a huge con-
sultation process with the native
people,’ he states emphatically.
“That’s the job that has to be done
from now on so that our negotiating
team can take direction from our
elected leaders,” he adds. The
claim-will mean little if there is no
consultation.

Wilson calls for unity. He feels it.
is absolutely necessary among all —
Indian leaders and: groups ‘if’ the
native people are to reach a fair
settlement with the government.

“We must avoid
organizational or jealousy hassles
which might jeopardize our claim
—that is why the Chiefs Union was
formed and that is how we are
going to attain public sympathy
and support,” he said.

Wilson expresses a fervor
toward land elaims seldom seen in
his age group.

“We have the opportunity now.
To me land, claims is. such a
tremendous issue — it transcends
personalities, organizational and
tribal jealousies — it isn’t merely
collecting a debt, it means a whole
new way of life for Indian people,”’
he continues. “The terms of our
settlement will affect our children
for generations; where will our
people be 100 years from now?”’ he
asks.

_ He sounds a note of warning to
present Indian leaders that. they
must achieve a favorable set-
tlement or face the wrath and hate

any.

of generations of Indians who will.
follow:
OVERCOME DIFFERENCES

“If we fight each other, only the
professionals, consultants and
lawyers will benefit and the Indian
people will remain in the same
position,” he states. However, he is
equally confident that the Indian
people can overcome their dif-
ferences. He feels the chiefs.
elected to represent their people
can deal with the issues when they
arise.

“Tf not, then the issues are not
sufficient to be dealt with,” he
declares. Foremost in Wilson’s
mind is the need to keep Indian
people up to date on the Land
Claims and developments. ‘‘We
have’ to. tell the. Indian -people
where. we are because the average
Indian on the street has no idea,”
he says.

The young law school graduate
was Executive Director for the
Union of Chiefs when the ‘‘Claim
Based on Native Title’’. was
prepared for presentation to
government. He stated this. paper
was largely for the experts: only
and “that the general Indian

population had no understanding of :

it. “Indian people should be able to
talk about the Land Claim like they
talk about bread,” he asserted.

CLAIMS PAPER DID JOB

“It’s either our claim or the
lawyers,’”’ he: added. Wilson
realizes the document he helped to
prepare has been strongly
criticized by some parties. But he
feels the document has served its
purpose by the fact that it has been
received and accepted by the
federal government. —

“We tempered our position, but
the paper has been accepted —
that’s what it was designed to do;
the paper was not designed to be
the total or whole answer to the
issue of aboriginal rights,” he
added.

This opens the door for real and
meaningful negotiation which can

be the only way to reach a
satisfactory agreement for all
Indian people, he added.

Wilson finds no justification for
any barriers that occur between
groups of, Indian people. ‘The
Indian Act distinction has no basis
in fact or reason,’’ he says. “It’s a
distinction that’s purely legal and
to continue to perpetuate that
division is to continue to be ruled
and divided by outside forces,” he
adds. He is frustrated by the Indian
Act and Reserve system for
creating a legal definition of
‘Indian’ that separates brothers,
sisters and families. This has
created so-called status or
registered Indians and non-status
Indians. The former are a federal
government responsibility, while
the latter receives no special at-

Continued on page 12A
See: STATUS FICTION

‘be:

October, 1973

dian and Innuit groups in the
Northwest Territories who are not
covered by treaty.

“The government views this
claims policy in the context of
other policies intended and
designed to remove the sense of
grievance and injustice which
impedes the relationships of the
Indian and Innuit peoples with the
governments concerned and with
their -fellow Canadians,’’ the
statement concludes.

MORAL CONSIDERATIONS TOO

The policy statement of: Aug.4,
1973 raises some. important
questions. Is the federal govern-
ment equally concerned about

“moral obligations” in settling
claims as it is of ‘lawful:

obligations?’’ Things may be
legally correct and yet not right. If -
the government sincerely wants to
negotiate Indian claims, should not
they consider moral issues as well
as legal rights? The government
asserts its “continuing respon-
sibility” for Indian people. Should
not they be reminded that they
have the primary responsibility —
whenever they try to over-
emphasize provincial respon-
sibility? The government stresses
“Long-standing grievances’’ in its
statement.. Should not they be |
equally emphatic of our legal and
moral rights and not try to conceal
the real issues? There are rights,
responsibilities and other things as
well as grievances.

These are but a few of the many -
questions that must be asked by
the Chiefs who will be attending a
general assembly to be held in Port
Alberni in November. These
historic developments add im-
mense importance to this up-
coming convention ... . so much 'so
that the theme of the assembly will
“Land Claim and It’s Set-
tlement.’

“What will the main discussions .
be centred ‘on? Such issués as
mechanism. for negotiation, en-
titlement to settlement, timing of
meetings, and the method of set-
tlement, as well as the research
necessary to present such a
comprehensive claim.

A group of Indian leaders .in-
cluding Phillip Paul, Victor
Adolph, Heber Maitland, Bill
Wilson, George Watts, Joe Mathias
and George Manuel met: with In-
dian Affairs Minister Jean
Chretien Sept. 27, 1973 for the first
time since the federal government
had given formal recognition to the
B.C. Land Claim.

UBCIC COMMENT

The group in a press release
later said the Minister firmly in-
dicated that he, his department

‘and the federal government were

finally prepared to assume
responsibility for equitably settling
the hundred-year-old claims and
grievances of B.C. Indians. ;

The. press release continued:
“Although the responsibility for
the settlement of the claim resides
entirely with the federal govern-
ment, the Union of Chiefs expects
the full co-operation of the
provincial government.

“The Union of Chiefs has been
led to expect this co-operation by
the election statements made by
both the Premier and his party
colleagues when they said that
they would work towards the
recognition of aboriginal rights,”’ it
adds.

The press release states the
Chiefs Union is now embarking on
the most exciting and important
time in the history of Indian people
in B.C.

“This is the proper time to pay
tribute to the past leaders who
have contributed so much to the
success of the land claims issue,”
it continues, ‘‘There are many long
and_ arduous tasks ahead but if we
reflect on the leaders who have
preceded us and the strength they
have shown in their trials and
tribulations then we can draw
encouragement from their suc-
cesses.’

October, 1973

White and Bob: the first use
of aboriginal rights in defence

Indian aboriginal rights were
first used in the courts as a defence
by two Indian men charged with
hunting deer out of season in 1963.

Clifford: White and David Bob
were found with six deer carcasses
in their possession and charged
” with a violation of a provincial law,
the Game Act of B.C. The accused,
both from the Nanaimo-Vancouver
Island area, were convicted in a
Nanaimo Magistrate’s Court.

An ‘appeal was held before the
- County Court at Nanaimo, where
the evidence of two expert wit-
nesses was used. Wilson Duff,
provincial anthropologist, showed
that the lands where White and Bob
had been hunting were part of the
traditional tribe territory of the
Nanaimo area Indians. Willard
Ireland, provincial archivist,
produced a paper which dealt with
the surrender of lands by. the
Nanaimo Indians in 1854.

. The document was odd because
it had no content. It contained only
the signatures of James Douglas
and of three witnesses who were all
employees of the Hudson’s Bay
Company, as well as the marks of
159 chiefs and heads of families of
the Nanaimo Bands. The other
curious feature of the paper was
that Douglas signed it as chief
factor of the Hudson’s Bay Com-
pany and not. as governor of the
colony of Vancouver Island.

The province argued the paper
was not a treaty because it lacked
content and was. not signed on

’ behalf of the Crown. The -Court
disagreed and concluded the paper
was. one of a series of 14 such
documents involving transfers of
property between Indians and the
Hudson’s Bay Company in various
areas of southern Vancouver
Island. i

Those documents read, in part:
“The condition of, or un-
derstanding of this: sale, is this,
that our village sites and enclosed
fields, are to be kept for our own
use, for the use of our children, and
for those who may follow after us,

and the land shall be properly
surveyed hereafter; it is also
understood that we are at liberty to
hunt over the unoccupied lands,
and to carry on our fisheries as
formerly. 7

The convictions were thrown out
because the County Court judge
ruled that the document of 1854 was
an Indian treaty which protected
the hunting rights of the native
people. The judge said: “I. also
hold that the aboriginal rights of
the Nanaimo Indian tribes to hunt
on unoccupied laiid, which. was
confirmed to them by the
Proclamation of 1763, has never
been abrogated or extinguished
and is still in full force and effect.”

The province appealed the case
to the B.C. Court of. Appeal in
which a decision was handed down
December 1964. Three of five
justices who heard the case agreed
with the earlier decision by
recognizing the treaty and rights
protected under the Indian Act.

Justice Norris concluded that -

aboriginal rights of the Indian
people have existed since before
anyone can remember. He said
these rights were confirmed both
by the Royal Proclamation of 1763,
and the treaty entered into by the

Indians with Douglas. He added.
these rights had not been ended by -
the Dominion Government and

could not be taken away by the
provincial government.

The province then appealed to
the Supreme Court of Canada and
again lost. The Court recognized
the document'as a treaty and ruled
that no argument on aboriginal

‘rights was necessary.

This case raised several im-
portant issues that have since been

widely used in cases involving .

Indian rights.

The Supreme Court ruled: .

(1) that, an Indian Treaty even if it
is informal and incomplete,
represents a binding
agreement. Anything unclear

Continued on. page 11A
See: ABORIGINAL

MARJ CANTRYN, member of
the Vancouver Police Com-
mission, holds her certificate of.
enfranchisement card, which ~

says: “This is to certify that:
Marjorie Cantryn [nee Dennis]
formerly of the Ohiat Band of
Indians - was enfranchised by
Order in Council P.C. No. 1958-.
1092, dated August 7, 1958 and
from that. date is deemed not to
be an Indian within the meaning
of the Indian. Act or another
statute or law.” [Staff photo]

George 111:
Royal Proclamation
of 1763

What has a paper over 200 years
old got to do with Indian rights in
British Columbia?

Quite a lot, Virginia! It is the
Royal Proclamation of 1763. The
proclamation was a statement of
British government policy which
clearly recognized Indian rights to
land. The Royal Proclamation has
never been repealed and it has the
force of law in Canada.

The present government con-
siders the proclamation to be a
basic declaration of Indian land
rights, as it recently stated in its
August 8, .1973..policy statement.

There are two questions about

_ the Royal. Proclamation which

have been important in discussions
about Indian land rights in B.C.
First, is it the only source in law for
Indian land rights? Second, does

Page Seven A

indian organizations intervene
to protect rights in court

The Canard case will be heard in
1974 by the Supreme Court of
Canada; the Union and other In-
dian organizations have decided
that the National Indian
Brotherhood should intervene, as
in the Bedard and Lavell cases, ba
protect the Indian Act.

‘The Canard case is about -an
Indian who lived and died off his
reserve. At his death the only

‘property Mr. Canard owned was
-located off his reserve. It is being

argued that his estate must be
handled under provincial law, so
that his widow is treated “equally”
with all other . people in’ the
province.

The case involves the Indian Act

- and the Canadian Bill of Rights, as
‘did the Lavell and Bedard cases.

The Lavell case dealt with the
question whether a section of the
Indian Act was no longer law due to
conflict with the Canadian Bill of
Rights. Jeannette Lavell argued
that her loss of Indian status when
she married a non-Indian under a
section of the Act denied her
“equality before the law.” She
pointed out that Indian women
were not being treated equally with
Indian men-by the Act.

STATUS NOT AFFECTED

The Supreme Court of Canada
upheld the Act. It ruled that In-
dians had a special status in the
Constitution of Canada (the British
North America Act), and that any
law. dealing with Indian reserve

communities or with Indian status.

the Royal Proclamation apply to
B.C.?

The controversy about the Royal
Proclamation of 1763 and its effect
on B.C. land claims seems to have
been ended by the Supreme Court
of Canada’s decision.in the Nishga
case. None of the judges in the case
held that it was the only source of
native rights. Three judges ‘said
the Royal Proclamation did apply
to British Columbia.

could not be affected in any way by
the Bill of Rights.

The Union and other Indian
organizations, to protect the Indian
Act and the reserves, had argued
against Jeannette Lavell because
they feared that the courts might
say that the whole Act was
inoperative because of the Bill of
Rights.

In the organizations’ submission
to the Supreme Court it was stated
that they were not intervening to
defend present) membership
sections or to defend section 12 (1)
(b), but to uphold the Indian Act as
a basic. protection of Indian rights.

All Indian organizations know

‘that present provisions in the Act

have worked many hardships, and
that there is hardly an Indian
family that has not been affected
by inequities of the present
membership system. But because
‘of the interrelationship and
complexity of membership sec-
tions in the Act, Indian
‘organizations feel that a piecemeal

approach to revision is not
possible.

A FAIR SYSTEM ;
One goal of the present

discussions for reform is the for-
mulation of a fair, equitable, and
just system of membership: a
system fair beth to individuals and -
fair tothe Indian reserve com-
munities. Thorough discussions
‘are being held with Indian com-
munities throughout Canada for a .
complete and integrated
preparation of specific proposals to
revise the Indian Act.

In the meantime the controversy
rages on and the innocent are the
most affected.

‘Children of Indian girls who
marry non-Indians are in the
position to suffer the most when
such marriages break down, ac-
cording to Marge Cantryn. She
should. know because she has

Continued on page 11A
See: COURT DECISION

~ Indian property rights bought through treaties

In the spring of 1850, in the name
_ of the Hudson’s Bay Company and

’ the British Crown, James Douglas
bought all the Indian lands for the
present districts of Victoria,
- Metchosin, and Sooke.

This was the result of an 1849
“grant of all lands on. Vancouver
Island to the company by the
Crown. The “grant’’ required that
these lands be opened for set-
tlement as a Crown colony. It was
necessary, under British policy
and practice, to buy the property
rights of the native people first,
before settlers could buy the land.

The job of making “‘agreements”’
with the Indian people fell to
Douglas, chief factor of HBC and,
after September, 1851, governor of
the colony. He took over the
previously noted areas and over

" the Saanich peninsula through the
following treaties:

pa
1. Teechamitsa
- April 29, 1850
2. Kosampsom
_ April 30, 1850
3. Swengwhung
April 30, 1850
. Chilcowitch
April 30, 1850
5. Whyomilth
April 30, 1850
. Chekonein
April 30, 1850
Klallam
7. Kakyaakan
May 1, 1850
8. Chewhaytsum
May 1, 1850
Sooke
9. Soke.
May 10, 1850
Saanich
10. South Saanich
February 7, 1852

chiefs’

11. North Saanich
February 11, 1852

JUST SIGN HERE ~

The form is the same for»all
treaties, essentially, and usually
begins: ‘‘Know all men, We the
Chiefs and People of the. . . Tribe
who have signed our names and
made our marks to this Deed
on.

The date of the treaty and the

‘approximate boundaries of lands

are included. All treaties included.
the following:

“The Condition of, or un-
derstanding of this Sale, is this,
that our Village Sites and Enclosed
Fields are to be kept for our own
use, for the use of our Children, and
for those who may follow after us;
and the land itself, with these small
exceptions becomes the Entire
property’ of the White people
forever; it is also understood that
we are at liberty to hunt over the
unoccupied lands and to carry on
our fisheries as formerly.” —

The treaties ended with saying -

the amount of payment, and the
names and marks (X’s) of the
Indian chiefs and heads of
families. The exceptions are the
Klallam and the Sooke treaties. In
these cases Douglas negotiated
only with the chiefs. Thus, only the
marks are on ‘the
“agreements” and goods. were
paid only to them; they. then made
distributions to their people.

SOME NOT COMPLETE —

In all these treaties the ‘‘X’s”
are all remarkably the same, as if
all were made by one hand. Except
those of the North and South
Saanich people, each treaty was
written by two people: the first half
plus the Indian names was

. probably written by Douglas; the.

second half was apparently written
by a different person at a later
date. In the North Saanich treaty
the amount and place of payment
have not been filled in, although

- space was left for that information.

All these treaties were made at
Fort Victoria; not on the actual
ground involved. This means that
tribal land boundaries were set
orally. It is doubtful Douglas had
an accurate map to work with;
even if he had, it is even more
doubtful the Indians could read it.

Thus, confusions arose over
landmarks, directions, and
distances. The result — boundary
descriptions in the treaties are so
confused, it is impossible to map
territories in more than a very
general way.

The Songhees received 371

‘blankets and one cap for their land

to be divided among 122 men of the
tribe. For the Klallam treaties
HBC paid 104 blankets to be
distributed to 56 men. In the Sooke

_treaty 58 blankets were given to at

men.
Two years later Douglas ian
the Saanich territories. The 117
men of north Saanich got 386
blankets; the ten men listed as
South Saanich got 50 blankets.

IDENTIFICATION CONFUSED.

The same South Saanich group is
thought to be really a mixed
Songhees-Sidney Island. group who
claimed what is now Cordova Bay.
In his confused ways to know who-
“owned” which land or, perhaps,
for convenience, Douglas named
the mixed Songhees-Sidney group
as the South Saanich. |

Apparently, the Indians asked
for compensation in woollen goods
(blankets) rather than cash.
Douglas priced the blankets ‘much

higher than the goods cost; the
difference was a mark-up of 300
per cent.

Not only did the Crown get large
areas very cheaply, but it also did
not pay the full amount promised.

For signing the treaties Indians
were promised. payment, reserve
lands, hunting rights, and fishing
rights. Today, each band does have
land set aside for its own use and
benefit. But very few of there were
set apart to honor the treaties.
Most of them were reserved under
a later. policy providing lands ‘to
non-treaty Indians too.

The “right to hunt over unoc-
cupied lands”’ is still in effect. But
how much ‘unoccupied land
remains in the treaty areas now
heavily populated? This right to
hunt is not worth much, if there is
no place to hunt and very little
game to hunt. :

“The right to carry on. our
fisheries as formerly” still exists.
But this right is being gradually

. worn away by fishing regulations

and by the opinion of the courts
that federal fishing law is StROngEH
than treaty right.

MODERN IMPLICATIONS

An example is the 1968 case,
Regina V. Cooper. Cooper of the
Sooke tribe. was charged with
possession of salmon in violation of
the federal Fisheries . Act.
argued his right to fish was con-
firmed by the Sooke treaty, and
that the area where he had fish was
in tribal territories described by
the treaty.

In his judgement, Justice Brown
of the B.C. Supreme Court
described the Sooke treaty thus:
“The document embodying this
larcenous arrangement must have
been drawn by or on behalf of the
Hudson’s Bay Company...”

Canadian courts, however, do
regard these “agreements” as
having the legal status of treaties
for the purchase of land and for the
protection of Indian lands and
rights. The 1854 ‘‘agreement’’
between Douglas and the 159 chiefs
and heads of families. of the
Nanaimo tribes was. tested in
Regina v. White and Bob.

The Supreme Court of Canada
supported the view that the 1854

_“agreememt”’ was a treaty within

the meaning of the Indian Act, and
as such it protected the aboriginal
right of the Nanaimo Indians to
hunt for food in the treaty area;
that this right to hunt is not subject
to any provincial game law, and
still exists.

LEGAL HOCUS POCUS

In making these treaties Douglas
assumed certain things: (1) that
the Indian tribes were legal,
political groups with exclusive
ownership of their lands, and (2)
that the chiefs had authority to sell
the land of an entire group of
people.

Douglas’ assumptions are legal
fiction (or in Harold Cardinal’s
words — legal hocus pécus) and
were planned to get white man’s
answers to white man’s questions.

When the treaties were made,
certain lands, like house-sites and
some fishing stations, were held by
individual families. Other areas,
like hunting grounds, were used
and shared by larger groups. Some
places were used permanently,
while others were seasonal sites.

However grossly unjust and
inadequate, still these treaties are
important to Indian people; they
represent a formal recognition of
aboriginal rights.

Page EightA

NE S I K.A

October, 1973

~ Nishga claim spurred on by 3-3 d

Continued from page 4A‘

lands, Justice Hall held that tthe
natives were the rightful oc-.
cupants, with a just and legal
claim to keep possession and use of
their land. |

When British Columbia joined
the Dominion of Canada, the In-
dians were recognized by the
Crown as owners of their un-

surrendered land, but this Indian . |
property was dependent upon the.

goodwill of the Crown and could be
surrendered only to the Crown.
TREATIES ARE PROOFS

Justice Hall made reference to
Treaty No. 8 of 1899, which includes
the Beaver and Slave Indians in the
Fort St. John area of B.C. The date
of this treaty and the fact that it
involves the surrender of Indian
lands goes against the province’s
argument that aboriginal title was
destroyed before 1871. As the
justice put it: ;

“IF THERE WAS NO INDIAN

TITLE EXTANT IN BRITISH

COLUMBIA IN 1899, WHY

WAS THE TREATY NEGOTI-

ATED AND RATIFIED?”

‘In his opinion Justice Hall added
that the Royal proclamation of 1763
intended to include the land west of
the Rockies and that it carried the
force of law in British Columbia.
Because this proclamation showed

“the Crown’s intention to .respect
native rights, the Nass title to their
tribal lands was a legal right when
they came under British rule. Asa

‘legal right, that right could not be

otaken away-except by surrender to
the Crown or -by specific action
through Parliament, said Justice
~ Hall. :
Since there has been no
surrender by the Nishga nation and

’ “neither. the. provincial or. federal
governments have made specific

“laws to end, the Indian title,” the
Nishga ‘right to possession, use,

Andrew Paull, left, and Frank Calder, right, during'a break. [Photo by Capital Press Service, Ottawa]

and enjoyment of their land must .
still exist.

«RIGHTS OF DISCUVERY
On the other harid three justices;
‘Martland, Judson * and - Ritchie, :
agreed with the province’s position.

and ruled that the ‘appeal be
dismissed. : a,

They believed that. ‘‘discovery”
gave full ownership of the:land. to
the. Crown. They;added that. any
rights. the Nishga may ‘have had
were destroyed by provincial laws

governing land~ grants, mines,
railway rights-of-way and so on.

The .Mckenna-McBridge Com-
mission. was. used. as. further
-evidence: that: Indian: ‘title was
ended in B.C: This::;commission’s
recommendations helped to fix the

ecision

sites and boundaries of reserves in
the Nass Valley. Justice Judson
believed the Royal Proclamation
of 1763 did not include the Nass
Valley. He argued the Nishga
people were unknown to the
English and not under British
protection when the proclamation.
was. made and, _therefore,. not
covered by it.
.PERMISSION TO SUE

Justice Pigeon, the seventh
member on the bench, rejected the
case because the Nishgas had not
first received permission to sue the
provincial government as is
quired. However, he made no
comment on the aboriginal rights
question. :

Although there was supposed to
be a full court of nine justices to
hear the Nishga case, only seven
sat on the bench, thus, the split
decision. But it was enough, for the
federal government has since
indicated is prepared to negotiate
claims and settlement.

The Native Brotherhood of
British Columbia will hold its 40th
annual convention December 4-5,
1973, at Masset.

Part of their discussion will deal
with Indian fishing rights with
respect to commercial and
domestic use. Alvin Dixon, 36,:of
the Bella Bella Band has. been
hired to research these matters for
the NBBC.

The Native Brotherhood has long
been associated with the land
claims struggle along with the
Nishga Tribal Council and. the
Allied Indian Tribes of B.C.’

Dr. Peter. Kelly and Andrew
Paull who played major parts in
the.pioneering efforts of the Allied
Tribes ;to. gain: recognition . for
Indian land claims: both later -on
went to work for the NBBC.

B.C. Special never accepted as title sett!

Since. 1927 the federal govern-
ment has paid $4.6 million dollars
to Indian people in B.C. in lieu of
treaty payments. But that isn’t
what’s important. The thing to
remember is how this annual
payment of $100,000 was:
established and set. /

It was brought about because a
few courageous Indian men with
vision were trying at that time to
get the federal government to
recognize B.C. Indian Land. Claims
based on Aboriginal Title.

Known as the B.C. Special Vote,
the fund was. set up following
recommendations: from a Joint
-Parliamentary Committee that
heard the “Claims” of the Allied
Indian Tribes of B.C. in 1927.

_ Those brave men were -Peter
Kelly, Chairman of the Executive
Committee of: the Allied Indian
Tribes; Andrew Paull, Secretary
for the Allied Tribes; Chief David
Basil of the Bonaparte Indian
Tribe, and Chief Chillihitza ef the
Nicola Valley Indian Tribes.
TREMENDOUS ODDS

In a battle against. tremendous
odds and prejudice, these men
were told they had not established
any claims to the land based on
aboriginal or any other title. It
must have been a painful setback
to be told, in part, by the Com-

- mittee: “‘The matter should now be
regarded as finally. closed.”’

“Tn lieu of annuity, your Com-
mittee recommend that a sum of
$100,000 should be extended an-
nually.”’ ,

The Superintendent General of
Indian Affairs was instructed to
tell all B.C. Indians the Committee
recommendations and refusal to
recognize land claims were final.
To add insult to injury it was also
further decided that Indian people
of B.C. be told not to. contribute any

more money to any further efforts
of presentations of land claims to
the federal government.

Political interest, had won over

Indian interest and the B.C.

Special Vote was born. Although
the fund was born, the idea of land
claims settlement among Indian
people has never died. The trials
and tribulations of those pioneers
of. our “Claims” then deserves
tribute.
INITIAL USES

The fund itself was. to be spent
initially on technical education,
provision of hospitals, and medical
attendance, the promotion of
agriculture, stock raising, and
fruit culture as well as for the
development of irrigation projects
for Indian. people. Indian Affairs
Department officials looked on the

fund. as its most important source
of capital and assistance to native
people for many years.

The Department. maintained
total control of this money_as late
as 1959, when they agreed to have a
three-member Indian Advisory
Committee. But because the
committee members were. only
advisors to the Indian Com-
missioner on how and where the
money was to be spent, it remained
‘department expenditure.

It should be noted that none of
our leaders have ever accepted the
B.C. Special as payment for our
“Claims.” oo

During the first meeting. of the
Indian. Advisory Committtee, Guy
Williams stated: “My appearance
before this board called here today.
by the Indian affairs department is

not to be taken as admission of the
acceptance of $100,000, or any part
thereof, as a waiver by me for
myself or the Indians of B.C. of
their rightsto the land of B.C., or
other aboriginal rights which they
have.”

MONEY NOT ACCEPTED
- The Kitwancool Band has to this
day refused any acceptance of B.C.
special money for fear it may
jeopardize their land claim.
Always the department had total
control of the fund. Much of their
original preoccupation was to
make farmers of all Indians.
Finally, in the mid-1950s, it must
have been recognized that there
could be other worthwhile en-
deavors on the part of Indians. The
fund was partly spent for hospital
and medical attendance up until

Government must recognize

The federal New Democratic
Party has called for the govern-
ment to make a declaration
recognizing the aboriginal rights of
B.C. Indians. :

In a statement reledsed in Oc-
tober, 1969, the NDP state that in
non-treaty situations such as in
B.C. the government must
recognize that the native Indian’s
“hereditary title to the land, and

' all that that encompasses, was

never extinguished.” The NDP
recommends that the government
“must agree to sit down on.a man-
to-man basis and to enter into
open, free and honest discussions
to try to resolve this matter.”

The statement also recom-
mended the same approach be
taken in settling any treaty
disputed. ‘

In case an Indian Claims
Commission is established to

research and investigate in-
dividual cases the NDP suggests
that it. should be financed by.
government “with no strings at-
tached’ and that it should be
totally composed of Indian people.
If, however, a mutually
satisfactory agreement cannot: be
reached on any matter, the
statement recommends that the
Indian people should have the right
to go to an independent group, like
the International Court of Justice,
for.a decision. .

The statement adds: ‘‘Whatever
the rights are which are finally
spelled out, they must be given the.
sanctity of statute law by en-
dorsement by Parliament of any
agreements, or by inclusion in the
Constitution.”

On the Indian Act the NDP states
that an end should be put to what it
calls the “Great White Father

rights — NDP

concept”’ in handling changes in
the legislation. If the Indian people
desire it, the NDP states, ‘they
should be able to participate in the
actual drafting of changes to the
Indian Act and, in this regard,
participation must mean that
representatives of Indian people
should actually sit in -with
government legislative draftsmen
and rewrite the Indian Act
themselves.”

In conclusion the NDP recom-
mends that the government should
put an end to the practice of
developing programs and _ then
trying to “‘band”’ the people to fit
them: ‘‘The policies of government
must not have as their starting
point the concept: ‘What can
government do for the Indian
people?’ but rather what can be
done to permit Indian people to do
things for themselves.” . ~

1946-47, and for technical educatiori
until 1955-56. It was then decided to

spend $60,000 annually for
irrigation and $40,000 for
agriculture.

Eventually it was decided that. -
assistance could be given to Indian
fishermen, trappers, and loggers
from the agricultural portion. A
breakdown of expenditures shows
that agencies in farming areas
received more .money. For in-
stance, the Okanagan received per
capita grants amounting to $48.27
compared to the Kwawkewlth. who
received $1.60 in the years 1949 to
1954.

PER CAPITA DISTRIBUTION

The Indian Advisory Committee
in 1962 recommended the fund be
distributed on a per capita basis to
all Bands.

In May 1965 it was decided that
payment be made directly into
Band trust accounts once Bands
requested this through Band
Council Resolutions. It. was only
from this point on that Indians had
a direct say on how the money was
to be spent, although the amounts
became blatantly insignificant
once the payment was made on a
per capita basis to so many people.

It can be definitely stated that
B.C.’s Indians have never accepted
the B.C. Special Vote payments as
having any relationship to the idea
of giving up their aboriginal title.
The Allied Indian Tribes of B.C.
could not, nor did they concede
anything during their 1927
presentation. This is borne out by
the fact that the federal govern-.
ment unilaterally set up the
$100,000 per annum figure, and the
fact that the department through
the years administered the money
for added services. they were
responsible for providing to Indian
people anyway.

Page Ten A.

N ES 1|K A

October, 1973.

s By TIM KENNEDY
EDITOR,S NOTE: The following
article, reprinted from Challenge
for Change, published by the
National Film Board, sheds some
light on dangers of so-called
“settlement” of land claims. Our
readers will find here that there
are a lot of things more to chew on
when considering the B.C. land
claims. The author worked seven
years in Alaska. The projects,
funded by the U.S. Office of
Economic Opportunity, on which
he worked also gave Kennedy a

' good view of Alaska’s native
people. He is now a producer with
Challenge for Change.]

In rural Alaska something is
happening since the land claims
settlement was finally signed into
law. The first explosive reaction
was seen in Galena. A white hunter
landed a small plane: He came up
the beach, and most of the adults in
Galena were waiting for him with
rifles.

They said, “You cannot hunt
here, white man. You are white
and you cannot hunt here
anymore.”

And the guy said, ‘‘Ah, for crying
out loud, get off that, ” and took no
notice.

And they responded by cutting
the rope on his plane and shooting
holes in the floats, and the plane
almost sank. _

Now that could never have
happened five years ago, two years
ago.

TOTALLY UNHEARD OF

That news has spread through
rural Alaska like wildfire. It is the
first indication of what the
ingredients are, if the land claims
aren’t settled properly. ~

And the land claims issue is
turning village against village in.a
- subtle way. I think you are going to
see another explosion here. You
are going to see Eskimos and In-
dians attacking white people in-

stead_of responding implosively by.

attacking each other. They’re
under incredible pressure.
DIVIDE AND CONQUER

This idea of divide and conquer
Each village in a region is required

to have an incorporated entity. So
each village has to incorporate
itself and then the regional cor-
poration, which it has to belong to,
has to incorporate a legal entity.
Very few people understand. The
village gets so much land around
its present site but it doesn’t get the
sub-surface rights to it. The
regional corporation. does.

So let’s look at a situation that
could arise. A village has oil, but it

says, ‘“‘We don’t want to exploit. We -

don’t want to ruin what we have,
even though there is money in-
volved in it. We know that fifteen
miles away there are oil deposits
as big as the one we’re sitting on.
We don’t. want to move our
village.”’

But the sub-surface rights belong

to a regional corporation that has.

13 villages. They only have. one
vote out of 13 to decide what to do.
The other 12 villages may decide to
erect an oil well in that village and
sub-surface rights take preference
over surface rights. They can’t
stop them from doing it. So you can
really imagine people in that
village, feeling other villages are

turning against. them. And they’ll.

start fighting amongst themselves.
WHO OWNED WATERWAYS?

The other thing is that people are
finding out now for the very first
time, that all navigatable
waterways in Alaska have always
been owned by the State.

For example, a village is located
by a huge lake. The people of the
village have been hunting and
fishing there from time im-
memorial. They found outa couple
of months ago that it is not their
lake. It has always been owned by
the State of Alaska, even in

territorial days. There has been a

terrific negative reaction to: that.
SIXTY PER CENT GLACIER

The Chugiach Native Associatio
just found out after the settlement
that 60 per cent of the land they can
withdraw is glacier. They are a
little upset. I..really. believe you
have the ingredients fora. very
explosive situation ‘here.

ESKIMOS AREN’T KIDS -
The American people are going

to have to start. realizing that
Eskimos aren’t kids — they are
grown men and women — and start

realizing. just how much that land -
‘means to them. They are perfectly’

willing to fight for it, if it gets down
to it, including mobilizing the
National Guard and everything
else, as has been discussed in a

_humber of villages.

That information has to get out
so the people can see the
seriousness of this. For instance,
the Land Use. Planning Com:
mission, people like that, are
totally unaware of this. They are
just going to go out, excited about
going out into the villages to talk to
these people — to these nice people
who have-a sense of humour,
harpoons, skinboats, and all this
kind of thing. Kind of a glamor trip.
And they. are going to be in for a
rude awakening.

GEARED NOT TO WORK

But a let won’t surface until the
people really start seeing the land

claim is not working the way they -
thought it would. And it’s geared:

not to.

Most of the Senators and

Congressmen who helped write
that bill, with all its compromises,
are from the western states and
they know that the Indian groups in
their states are watching very
carefully.

If this works, the Indians are
going to go the legislative route. Up
to now, they’ve gone through the
Indian court claims, which is a
legal route. Most of them got very
bad deals out of it. This is the first
group that’s gone the legislative
route, through the political
process, applying pressure and

having specific laws passed in the’

legislature. All the Indian groups.
. are watching this carefully, and if
it works they are going to start —
~over®and go the legislative route.” |

And _ the politicians don’t want

that to happen. So they have very
skillfully written this bill — the

most complex bill that’s ever been’

passed by the. U.S. Congress. Even
lawyers don’t understand it — they

‘admit it. the terminology is just

incredible.

An explosive: Alaska after settlement

And now the burden is on the
regional corporations to decipher it
and make it work — to fulfill the
requirements.

A new elite has been established,
modelled on other western in-
stitutions, and it’s making the
same mistakes, for the most part.

They have three years to do this
thing, two years to do another. If
they don’t do it, the people don’t get
the money. And then each year, at
each congressional session, they
have to go back for the next in-
staliment of the money. But each
session of Congress is going to
decide whether they are going to
relate to that or not.

The corporations are going to
have to-go back each session and
fight to keep the thing going. The
next session of Congress can say,
“We don’t recognize what the last
Congress did,’”’ and cut them off.

WRITTEN IN
BUREAUCRATESE
The Act is. written’ in

bureaucratese. For instance, there
is a distinction between allocation
and appropriation. A billion dollars
has been allocated, but a billion
dollars hasn’t been appropriated:
And that is the key: A lot.of times
you can allocate very easily.
Appropriation means coughing up
the money. They have ap-
propriated so much for the first
year, but they haven’t ap-
propriated anywhere near the
billion.

So the native people are now
starting to find out all these things,
You know, to find out that 60 per
cent of their land is glaciers is a
kind of.a blow. They are trying to
get the Department of the Interior
to change it, but the answer has
been not.

- THE STRATEGY IS MAPS
-. Part of the problem is that it has

been a matter, mainly, of looking

_at maps, and saying, “Gee, a lot of

land.”’
Then when they finally go around

_and start surveying, it’s glacier.

And, of course, the Department
of the Interior knows it’s glacier.
There is also the problem of right
angles. The claims are to be at

right angles on the map. Not

following a river bank or a valley

or a trap line — just 90 degree

angles. Makes no sense to anyone

but the bureaucrats.

NATIVES ON MOUNTAIN TOPS
There is a cynical joke going

around. They'll give everything

from 25,000 to 15,000 feet to the
Aleut; from 15,000 to 10,000 feet to
the Athabascans; 10,000 to 5,000
feet to the Tlingets; from 5,000 to
2,500 feet to the Eskimo, and give
the whites the rest. The natives will
end with a lot of land; but it would
be the tops of the mountains.

The reality is almost.that ab-
surd, and the people are finding
that-out more and more.

They thought they were going to
be independent and have a money
base, and for the first time they
were going to be able to control |
their own lives. That door is slowly
being closed. ‘

The settlement was not really

‘based on land usage and need, but

rather on population density.

The caribou hunters in the north
need a far greater. breadth of
territory for the same. amount of
population than, say, the fisher-
men on the Yukon River.
COMMUNICATION WILL HELP

So the Skyriver process is now
being used by the Northwest
Alaska Native Association to
unravel the land claim settlement.

First, they can find out what
people think the land elaim is right
now, which varies from village to
village. Some people don’t know
anything about it, some people
have a fairly good knowledge of it,
and the rest of them fall kind of in
between.

There’s a lot of misinformation
and rumor. So they have to get that
out on the surface first, to find out
just exactly at what level they have
to deal with the villages. Then they
will respond to the villages with
videotape to strengthen and speed
the process.

If the villages can. profoundly
understand. and communicate their
common interests, perhaps that
“divide and conquer’? approach
will not have its destructive effect.

B.C. land claims presentation: delegation to Ottawa pose in front of Parliament in July, 1972.

[Andrews-Hunt Photography ]

October, 1973

Court decision
is fair

Continued from page 7A

worked with and helped scores of
such peoole over the years.

Mrs. Cantryn, executive
director, Vancouver Indian Centre,
was a status Indian and member of
the Ohiet Band till her marriage to.
a non-Indian 16 years ago. She has

two children who, because of the -

regulation in the Act, are no longer
recognized as Indian by the federal
government.

DECISION IS FAIR

Because -Mrs. Cantryn has
always been in a position to handle
her own affairs and, because she
feels the protection of Reserves
and Indian peoples rights as a
whole must be maintained, she
feels the Supreme Court decision in

‘the Lavell case is fair.

But, she adds,. the decision

should be really left to the in- -

dividuals and Bands concerned to
decide who remains on the Band
lists.

She says about 45 per cent of the
mixed marriages that have come
to her attention while working at
the centre usually break down. She
adds that many of these women
end up. on skid-row, and their

children become wards of society.

“They lose their status and are
not recognized as Indians. by the
Department of Indian Affairs but
continue to be Indians in the eyes of
society,”’ Mrs. Cantryr said.

‘She was recently appointed a
member of the Vancouver Police
Commission. Legally she is not an
Indian, but all the news reports of
her appointment emphasized that
she was the “‘first. Indian’? named
to that post. Mrs. Cantryn’s point
of view is one of many. If you feel
concerned enough we would like to
hear yours.

Settlement —
of claims.
urged by PCP

The Progressive Conservative
party, in their Indian affairs policy,
statement, say that there is an.
“urgent’’ need for the government

to recognize and settle all claims ~

by native people based on
Aboriginal rights.

The statement continues: “The
Progressive Conservative Party
abhors the failure of the Trudeau
government to live up to the
obligations. of over two hundred
years of Canadian history in not
recognizing aboriginal rights.’

It also suggests all outstanding
treaty claims should be studied
and settled. The statement
proposes too that in ‘appropriate

instances” both treaty claims and

those based on aboriginal rights
should be settled through the
legislature.

The Conservatives term the
handling of Indian affairs by the
‘Trudeau government a ‘‘farce.”
By indifference and insensitivity,
they say, the government has
undermined any confidence the
native people have in its intentions.
This is proven, they say, by the
failure of the government to
engage in any meaningful’ con-
sultations with representatives of
native people or to develop any

substantive programs.

The PC .statement also con-
demned “‘... attempts by the
government to fragment the
reserves by imposing on the native
peoples an alein system of in-

dividual ownership of the land.” .

The Conservatives hold that this
goes against the Native tradition of
the land being held communally by
the Band. For the government to
insist that the native person could
only gain .equality with other
Canadian citizens by doing so was
to “... ignore the tradition of
communal identity’? of native
peoples of Canada.
J

NESIKA

An Indian fisherman cleans his salmon catch.

[National Film Board photo, courtesy of The Sun}

Hunting and fishing cases lost with aboriginal defence

Although the recent Canadian
Supreme Court decision went
against the Nishgas’ land claim,

. the nature of. the decision could
have far reaching effect on some

B.C. hunting and fishing cases in
non-treaty areas based on
aboriginal rights. .

Two recent cases in point are
Regina v. Discon and Baker
hunting case and Regina v.
Derriksan fishing case.

In the Discon and Baker case of
1968 the two Squamish Indian men

were arrested under provincial _

laws for the illegal hunting of deer.
The two men based their case,
heard in the B.C. County Court, on
aboriginal rights saying provincial
laws did not apply to them as. their
special right to hunt
guaranteed to them by the
Proclamation of 1763.

The Derriksan case of 1971 was
argued using a similar approach.
Derriksan, an Okanagan Indian,
was charged with fishing for
Kokanee contrary to federal law,
and tried in the B.C. Provincial
Court. He argued that he had an
aboriginal right to. fish ‘in the
particular creek saying that it was
a traditional place in ancient tribal
territory, and that he was pro-
tected by thé 1763 Proclama-
tion.

Both cases were decided against
the Indian mén. Both judges based
their decision on their belief that
the Proclamation of 1763 did not
apply to B.C. They also said that

was .

for aboriginal rights to exist there
be recognition by statute, treaty,
or proclamation dealing with the
area.

In the Nishga Canadian Supreme
Court decision made since these
trials, however, none of the seven
judges said that aboriginal rights

had to be recognized by statute,
treaty, or proclamation, and three
of them said that the Proclamation
of 1763 did apply. to B.C. The im-
plications of this have not been
tested yet as no judge has. been
asked to look at the question since

~ the decision.

A Salish weaver at arts and crafts display in North Vancouver, October,
1972.

[Staff photo]

Page Eleven A

Land claims
and the

B.C. government

Section 109 of the Constitution of
Canada (the British North
America Act) says that the
provincial governments own the
land and natural resources in each
province. Thus, any claim to land
by individuals or by Indian tribes is
a claim involving the province..
That is why the Nishga people took
the Attorney-General of British
Columbia to court. They did not
take the federal government to
court because they were claiming
land, not compensation.

On August 8, 1973, the federal
government said it was prepared
to negotiate a settlement of the
British Columbia land claim. The
federal government said it
“regards the participation of the
‘Provincial Government as a
necessary ingredient for a
satisfactory settlement.’ The B.C.
government has’ not ‘yet stated
their position on a settlement of the
land claim.

Indian Affairs Minister Jean
Chretien said to representatives of

the Union of B.C. Indian Chiefs on — -

September 27, 1973, that whether
the provincial government agreed
to be involved in the negotiations or.
not, the federal government was |
prepared to begin negotiations to
work out a settlement of the B.C.
Land Claim.

Chretien has said too, that B.C.
must be’involved in any land part
of a settlement, because the
government of Canada. does not
control the land in British
Columbia. Chretien also hopes that
British Columbia will supply some
of the money that could be part of a
settlement.

Although the federal government
wants the province to be involved,
it is clear that the legal respon-
sibility for settling the land clairn
lies with the government of Canada
— not with the government of ‘the’
province of British Columbia. °

Continued from page 7A
in the treaty should be = un-
derstood in the way that the
Indian parties would have
understood it to be.
that provincial laws do not
apply to Indian people- when
these laws are against an In-
dian treaty, the Indian Act or .
any other federal government
act. This meant that White and.
Bob were not subject to
provincial game laws because
their right to hunt for food in
the treaty is protected by the
Indian Act.
A County Court judge and an

’ Appeal Court judge said:

(1) That the Royal proclamation
of 1763 applied to Vancouver
Island and that it confirmed the
aboriginal rights of Indian
people when they came under
British rule.

(2) Aboriginal rights have always
existed and only the Dominion
Government can take them
away. Since this has not been
done, aboriginal rights must
- still. exist. ,

Justice Norris of the B.C. Court
of Appeal in summary stated:

“Aboriginal rights have existed in

favor of Indians from time im-

memorial and they became per-

sonal and usufructory under: the

British Crown.... The right to hunt

_ and fish on unoccupied lands was

an aboriginal right confirmed by
the Royal Proclamation of 1763.
This right to hunt and fish,
recognized by British and Colonial
Governments, could only be ex-
tinguished before Confederation by
surrender to the Dominion
Government.... and it has never
been extinguished and surren-
dered.”’

Page Twelve A

October, 1973

EDITOR’S NOTE: This abstract is
_ based on Mr. M. K. Vincent’s ar-

ticle in the August July 1973 issue
of Northern Perspectives,
published by the Canadian Arctic
Resources Committee.

Two factors explain the militant
court. action of the Indian
Brotherhood of the Northwest
Territories: .

1. The Mackenzie region is
covered by treaties with the In-
dians.

2. The region is the controversial
focus of northern oil and gas
development.

In contrast no treaties were
made with the Indians of the
Yukon, except for a small area.
Thus the government likes to say
that the Yukoners and the Inuits
are reasonable and cooperative in
the search for a settlement of

aboriginal rights; the MacKenzie
Indians do not want negotiations.

Minister Chretien says his offer
to: negotiate stands, but the NWT
Indians understand this to mean
that negotiations will be only in
terms of the treaties.

The Indians say these treaties
were never intended by the. people
to be a surrender of their lands;
they will not accept negotiations
limited by the land settlement
provisions of the treaties. They
want the treaties rewritten.

How valid is a claim. to rewrite
treaties?

There can be no question about
aboriginal rights. Such rights have

long been recognized in Canadian .

and British courts.
NWT IS SPECIAL
In. NWT Indians have special

Alaska settlement: land grants
and payments awarded by law.

The Alaska Native Claims
Settlement Act of 1971 is a
legislative settlement of the
aboriginal land claims of the In-
dians of that state.

‘The agreement does not involve
‘either reserves nor special status
for Indian- people. Instead land
grants have been made to native

communities and payments made’

to specially created corporations
whose shareholders are Indian.
The settlement was reached to
allow the development of oil and
gas resources in the state of
Alaska.

Those native people with at least
25 per cent Indian blood and who
were U.S. citizens at the date of the
Act, December 18, 1971, will share
in the settlement.

The settlement divides the state
into 12 regions each with a profit
making corporation owned by. the
natives: of that area. A 13th cor
poration has been established for
the benefit of Indians who no
longer live in Alaska. All boards of
directors of the corporations are
Indian.

Shares in the corporation cannot
be sold during the first 20 years but
following this period it does
become possible to sell and for the
corporation to pass from native
hands.
villages that have populations of 25
or more that have incorporated
under Alaska State law.

Fourty million acres of land is
being selected by the Indians from
' federal lands in Alaska. The Indian
villages will hold surface rights to
22 million acres.

The regional corporations will
hold all surface and subsurface
rights to the remaining 18 million
acres. The land will be held in fee:
simple — full ownership with no
restrictions or protection. Indians:
outside of Alaska have severely
criticized this arrangement
because this means the land can be
sold to non-native interests.

The Alaska Native Fund monies
will be distributed among the
regional corporations on a
population basis. J

Seventy per cent of income
received by a regional corporation
developments made to the public.
Prior to that, the Yukon Native
Brotherhood presented a brief to
Prime Minister Trudeau on
February 14, 1973. It was titled:
“Together Today For Our Children
Tomorrow.” The consultations and
research which led to, the report
were funded by the Commissioner
On Indian Claims, Dr. Charles
Barber. The proposals in the brief
are similar to those of the Alaska
settlement in that the Yukon
Territory has no treaties and no
reserves.

The proposal states all Indian
people with 25 per cent Indian
blood would’share in the set-
tlement.
General Council that would control

There are 220 native.

-worker.

It proposes a Yukon —

the. money and much of the
responsibility. :

Land would be selected for each
of the 12 native communities in the
Yukon. These communities in turn
would become municipalities
under Yukon Territory law and
hold the land by permanent lease
from the Government.

MONEY SOURCES

The Yukon Indian General
Council would receive money each
year from the following sources:

— 15 per cent of all revenues
from*commercial fishing industry,

— percentage from gas, oil and
mineral production,

— a royalty on all government
revenues from wood and _ forest
production.

In addition there would be a cash
settlement to be paid over ten
years.

The proposal asks for'a selection
of land: that ‘would’ include. both
surface and subsurface: rights
which would be held in permanent
trust by the Crown. Léases of such
land could be made to non-Indian
persons but for periods no longer
than 25 years.

A Yukon Native Development
Corporation would be formed. The
Yukon Indians’ say the first
program they want to start in-
volves pensions and local facilities
for older people. The second would
be cultural development followed
by community development and
adult education.

The Yukon proposal says some
special rights for Indian peoplewill
end after a certain length of time.
It suggests Indians living on Indian
land will pay taxes after 25 years
and that they would pay for their
awn health services in this time as
well. It states that in 10 years all
Department of Indian Affairs
programs be turned over to them.

“However, they ask that Indian land

be held permanently for Indian
people.

- A concern that has been ex-
pressed by other Indians is that the
settlement is one of termination,

an ending of special rights and.
‘status for the Indian people there

after a certain length of time.

‘ Nelson Commission;

N ES I K A

constitutional status. In 1870, when
Rupert’s Land and the Northwest
Territories first became part of
Canada, it was provided. that:

“gpon the transference of the
territories in question... the
claims of the Indian tribes to
compensation ... will be con-
sidered and settled in conformity
with the equitable principles which
have uniformly governed the
British Crown in its dealings with
the aborigines.”

Treaties 8 and 11-were attempts
at settlement, but the native people
say, justifiably, that the treaty-
making was not equitable and was
a fraud done to Indian people.

When the Indians went to court to
apply for a caveat, they claimed
misrepresentation and deceit by
the government. (Mr. Justice
Monroe has ruled: that the native
people had the right to apply for a
caveat, a document: which notifies
the register of titles of a person’s
interest in land.)

On. record is the report of the
in in-
vestigating the treaties in 1958 the
commission found that the Indians
had no. understanding of the ‘im-

’ plications, and it concluded that if

the treaties were not understood
then, they were not understood in
1924. Then Indian people’s com-
mand ‘of English and level of

- education were even less than in

1958.
MATTER OF DISTRUST

Even if the treaties were valid
and binding, its land settlement
provisions have never been carried
out; no land allotment was ever
made.

On the invasion of whitemen

The Jay Treaty

When is a treaty not a treaty?
When. the Canadian. government
has never passed. laws: to. give
Indians the rights promised. i in the
Jay Treaty. of 1794...

The Jay Treaty was entered into

- to determine the border between .

the United States and Canada in
the eastern part of the country. .

The treaty was entered: into
between Great Britain, on behalf of
Canada, and the United States. No
Indians signed the -treaty. -It
promised that Indians would be
able to move freely. across the
border without having to worry
about immigration laws and
without having to pay custom
duties on their own personal
belongings.

The U.S. recognizes the right of
Indian people to freely cross the
border and to work in the States.

In 1956 the Supreme Court of
Canada said the Jay Treaty is still
in effect as an agreement between
Canada and the United States, but
said Canada had not lived up to the
treaty promises to Indian people.

In 1968 Indian people demon-
strated and blocked. the In-
ternational. Bridge at Cornwall,

_ Ontario, to-protest the fact that the

Canadian government had not
recognized their rights.

The Canadian government has
still not recognized the rights of
Indian people as promised in the
Jay Treaty.

Recreation, travel grants

Continued from page 6
percent of the start-up cost of the

project to a maximum of $10,000. |

Such undertaking must be owned
by a person’ of Indian ancestory
and must employ the applicant or a
minimum of one Native Indian
The applicant will be
expected to provide a portion of the
cost of the project.

(14) Upon the recommendation
of.a Band Councilor a bona fide
Indian organization the Fund will
support a project where competent
native Indians can be retained to
set up and encourage native Indian
arts and crafts.

(15) Projects designed to
promote recreation activities

between various Indian com-
munities will be considered.
ATHLETIC TRAVEL EXPENSES
(16) Allocations from the Fund
for projects involving travel. of
athletic clubs. will be considered
only for those regional and
provincial playoff competitions
approved by the B.C. Native
Amateur Sports and Recreation
Federation.
_ (17) Capital allocations from the
Fund will be authorized for such
recreation requirements as
equipment and uniforms provided
50-percent of the total.cost is met

‘locally. Priority will be given to

projects involving younger per-
sons.

Acceptable negotiating terms needed in the NWT

during the rush-to develop northern
resources, Indian villages are
aware of the dangers. They do not
trust. promises that caribou
migration routes or fish stocks will
not be disrupted.

The government may choose to
require the Indians to bring their
claim to-court and establish in

detail the nature of aboriginal

rights. The issues would in the end
come before the Canadian
Supreme Court.

What can be done to avoid costly,
lengthy court proceedings? If the
government had offered
negotiate with the NWT on the
same terms offered the YNB, the
NWT Indians might have prepared
a negotiating position instead of
having gone to court.

There are risks for the Indians in
going to court all the way. They
should be ready to compromise
and a wise minister of Indian af-
fairs should offer acceptable
negotiating terms.

Government and Yukon Indian
brotherhood carry on talks.

The Yukon Indian people are
now negotiating with the federal
government for.a settlement of
their land claims.

So far the talks have been
proceeding with no information on
from timber and mineral
resources will be divided among all
12 regional ‘corporations.

At least 45 per cent of the income
of a regional corporation will be
divided among the native villages
increasing to as much as 50 per
cent after five years.

Ten per cent of the profits of: a
regional corporation will be paid in
dividends to the shareholders each
year for the first five years. The
land will be tax exempt for 20 years
only but will be subject to taxation
immediately if developed by or
leased to non-Indians.

FOUR MAIN FEATURES

The settlement has four main
features worth noting. They are the
matters of the land grants, money
payments, economic development
and special status.

The Land Settlement: Like the
Yukon and North West Territories,
the native villages in Alaska did
not have any reserves or any other
title, other than aboriginal, to their
lands. To settle their land question
the’ communities became in-
corporated and the ownership of
the land used was: given to the
incorporated community. .

The Sharing of Money: The total
cash settlement is distributed to
the regional corporations on the
basis of current population. Part of
the revenues from timber and

Status fiction

~ Continued from page 6A
tention or services from the federal
level. The difference has some-
times created a rift between the
two groups as they vie for govern-
ment services.

“T think the non-status Indians
have made their position very
clear ... they want no part of
Indian Act funds, they don’t want
to move on to reserve lands, they
don’t want any share of Band
funds,” Wilson stated. He added he
has heard recent statements from
status Indians that there is a fear
that hoardes of BCANSI members
would flood the reserves if they are
allowed to participate in any
settlement. Wilson deplores - these
unfounded fears that have created
a rift between the two groups.
FAMILIES DIVIDED
_ “What bothers me about it is not
so much that there is a difference

. but that it is a difference that
divides families,” he said. To
emphasize his point Wilson said he
himself is a status Indian | while
some members of his immediate
family are not. “We do not
recognize this legal distinction in
my family,” he stated.

“If there are disqualifications
fine, but Indian leaders and the
people will have to realize that they
will have to come to terms with the
ludicrous definition of Indian

within the Indian Act,” he stated.

Wilson suggests a blood
definition as in the U.S. where you
are required to be one-quarter
Indian blood to be recognized as a
status Indian. He added this would

* settlement.

minerals on the land held by the
regional corporations are shared
among the other twelve. This
sharing of revenue ensures that no
region then becomes poorer or
richer than others,

Economic Development: The
money can be used-for social and
economic development. The
regional and village corporations
decide how the money is to be
spent. Already the regional cor-
porations are talking about. social
welfare expenditures, education,
health and housing.

Special Status: After 20 years
there will be no special laws, no tax
exemptions, no special protection

of the lands and those native people ~

who own shares in the corporations

will own the land and shares. Such _

ownership then can be sold to non-
Indian people. :
NOT SATISFIED YET

The’ Alaska Indians are not
completely satisfied with the

settlement. The Alaska Federation
_of Natives have stated they are not

happy with the area of lands from
which they are to choose 40 million
acres.

It has become clear that the
Alaska. settlement payment-in the

intended ‘for ‘other’ Indian
programs in other states. These
two problems of source ‘of- budget
for payment and land selection are
not included in the settlement
legislation...

From a Canadian point of view it
is unfortunate the settlement does
not protect special status for In-
dians and Indian land.

divides family

eliminate many BCANSI members
from participating in any claims
BCANSI has also
stated that only those of its
membership who can trace their
ancestry to B.C. should have any
interest in any compensation.

“It has also been said that it is
ludicrous that a right which an-
tedates the Indian Act — a right in
the land that is accrued to Indian
people should be defined by

legislation that came after that:

right arose,” Wilson said.

Wilson made it clear, however,
that BCANSI is confident the
Chiefs Union will handle
negotiations well. He said the hope
is that there will be some in-put
from non-status members.

COMPENSATION HAZARDS

There is one form of com-
pensation which Wilson vigorously
opposes. He feels there should be
no large monetary per capita
payments made. “In five years the
Indian people would be right. back
where they are,” he said.

Another pitfall he fears would be
a settlement based on termination
of federal responsibility for Indian
people.

“There is no reason why we have
to agree to that, but it’s in the back
of the government’s mind to give
us millions of dollars for our
rights,’’ he warns.

Wilson foresees a better day for
all Indians regardless of status. He
states there are common issues
which will bring the Indians
together such as_ politics,
education, health and ‘welfare. _

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