Native American Legal Update : Native American Law : Foster Pepper Law Firm : Northwest, Seattle, Spokane, Portland Lawyer & Attorney

When the Mohawk Council of Kahnawake began presenting eviction notices this month to 25 non-natives living on their 13,000-acre reserve just south of Montreal, it sparked an outcry from non-Native human rights activists. The Mohawk Council’s priority is to protect their language, culture, and sovereignty, but outsiders have decried the action as a racist and illegal denial of Canada’s constitutional Charter of Rights and Freedoms.

A fundamental difference in view comes from perceptions of identity: the Mohawks do not see themselves as Canadians. The Council’s laws require a person to have at least four Mohawk great grandparents to live or own property in the Mohawk reserve. Any Mohawk who marries a non-native must leave. “Everyone knows the law: if you marry out, you stay out,” says Joe Delaronde, a spokesman for the Council. “If we don’t protect who we are, we will become Canadian citizens.”

The basic philosophy is embodied in the legal terms of the Kahnawá:Ke Membership Law:

We have consistently and historically exercised the right to determine our own membership. In recent times, we have been compelled to adopt measures that were necessary to ensure our continued survival as a Kanien'kehá:ka community.

This Law is another link in the unbroken chain of our historic struggle to survive as Kanien'kehá:ka of Kahnawá:ke. This Law is the result of a lengthy period of discussion and consultation within our community. It is an expression of the will of the Kanien'kehá:ka of Kahnawá:ke and is intended to reflect the values and principles described by the Elders of our community in their statement on membership: Entsitehwahahárahne.

This Law is an affirmation of our Indigenous and Treaty rights. This Law is essential if we are to survive and to thrive as Indigenous Peoples and as Kanien'kehá:ka of Kahnawá:ke.

The Kahnawake reserve was originally set up by the French in 1716, when the Mohawks were their allies against the British. Shortly afterwards, some French traders were asked by the Tribe to leave. In the modern context, evictions of non-Natives have been spurred by the fact that First Nations receive federal money for social services only for officially registered Natives. Canada’s minister of Indian affairs has stated the evictions make him “uncomfortable”, but says he can do nothing because First Nations have the right to say who lives on reserves. The Mohawk Chiefs deny the relevance of the Charter of Rights and Freedoms, stating that their relations with non-Natives are actually governed by the Two-Row Wampum Treaty, agreed with Dutch traders in the 17th century. The Treaty called for mutual non-interference, or as the Mohawk Council spokesman stated: “We stay in our canoe and you steer yours.”
 

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Flag of the Nisga'a Nation (University of Victoria)

In a break from long-standing land control policies, the Nisga’a First Nation in British Columbia is set to begin allotting property to its members, who can then mortgage, lease, or sell it – even to non-Nation members.

The new policy is part of an ongoing effort to improve the economic circumstances of the Nisga’a. After three years of study, the Nisga’a government has concluded that restrictions on private property ownership by its members has been a significant obstacle to financial growth. The new policy will provide Nisga’a members with freehold title to their homes, which they can then sell or mortgage as they please, and the policy may soon be extended to the Nation’s commercial and industrial properties.

This new policy from a First Nation in Canada will contrast sharply with policies among Tribal nations located within the United States. The property allotment policy implemented by the federal government during the 20th Century is generally viewed as having been an economic and social disaster for Native communities. The selling off of Tribal lands, typically at below-market value in order to obtain much needed cash, resulted in the “checkerboarding” of Native reservations and an alienation of Native peoples from their traditional homelands. Tribes also lost control of significant mineral wealth and water/mining rights due to the loss of ownership of their lands.  Most Tribes within the U.S. have spent the decades since the end of allotment trying to regain lost lands and return them to permanent Tribal status.

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Citing negative impacts including homelessness, ecological destruction to Native lands, huge public debt, and a greatly expanded police state, a movement of Indigenous groups has arisen to challenge the Olympic industry and specifically the 2010 Winter Olympics that will be held in British Columbia, Canada.

Organizers from No2010, an Indigenous anti-Olympics organization, will travel the West Coast of the US to conduct a speaking tour on the resistance to the 2010 Olympics.  The stated agenda is to promote an anti-colonial and anti-capitalist convergence that will coincide with the opening ceremonies of the Games in February, 2010 in Vancouver.

According to the group's website:

Although it can be said that all of the Americas is land stolen from Indigenous peoples, 'British Columbia' is unique in Canada in that virtually no treaties were made in the process of colonization & settlement. Treaties were required under British, and later Canadian, law prior to any trade or settlement (i.e., the 1763 Royal Proclamation). Although today the government seeks 'modern-day treaties' with its Indian Act band councils, the fact is in 'BC' the land is clearly occupied by an illegal colonial system. The slogan 'No Olympics on Stolen Native Land' is a way to raise anti-colonial consciousness about the true history of 'BC'.

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In a move that puts traditional Native rights at odds with animal rights advocates, the Nuu-chah-nulth Tribe of Vancouver Island is planning to reinstate sea otter hunts, after reaching a tentative agreement with the Canadian Department of Fisheries and Oceans. The deal will allow the members of the Nuu-chah-nulth Tribal Council to hunt roughly one per cent of the sea otter population in their territory on the central section of the west coast of Vancouver Island every year. Based on current figures, the take would amount to approximately 20 otters per annum.

Cliff Atleo, president of the Nuu-chah-nulth Tribal Council, stated: "For us, it's not about the numbers. It's about reconnecting with the pelts worn by our chiefs, the heads of our governments," Council Member Keith Atleo said expects opposition to the hunt, especially since sea otters are known for their cute looks, but said the hunt is necessary to stop the sea otters from decimating sea urchin and shellfish stocks, which are a valuable source of food for First Nations communities and commercial fishermen. "We have a lot of cute children in our community that depend on the seafood, and we'd rather they have a good future. Sea otters have affected the balance in our food, traditionally and culturally," he said.

Sea otters were hunted out of existence in British Columbia during the lucrative fur trade between colonialists and West Coast natives in the late 1700s and 1800s. In the 1960s and 1970s, animals from the surviving population in Alaska were reintroduced to the B.C. coast. The otter population is now estimated at 3,500 and the species is now listed as "at risk," rather than endangered. The Nuu-chah-nulth otter hunt agreement still is awaiting final approval from First Nations leaders and the Canadian government, and the hunt is not yet scheduled.
 

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In order to comply with the Western Hemisphere Travel Initiative and the Real ID Act, travelers seeking entry into Canada from the United States must present either a current passport or a security-enhanced ID card by June 1, 2009. The federal government has provided millions of dollars to state governments to develop the chip-embedded ID cards and supporting database systems – but no money has been provided to Tribes to equip their members with the necessary cards and support.

Many Tribal members prefer to utilize ID cards issued by their Tribal governments when traveling internationally, to reflect the sovereignty of their Tribes. Despite the 1794 Jay Treaty that guarantees indigenous peoples the right to move freely between Canada and the U.S., if Tribal governments can't issue security-enhanced ID cards by June 1, Tribal members attempting to enter Canada with standard IDs will likely be turned back at the border. Tulalip Tribal leaders have agreed to develop ID cards for several Northwest Tribes, along with a database that would link to computers at the border, but it appears unlikely the systems will be on-line in time. "We're racing the clock right now," said Theresa Sheldon, a Tulalip policy analyst who has worked on the border security issue for several years. "The only way we would be able to make it by the deadline is if they gave us an extension."

The National Congress of American Indians has filed a request with the federal government for a $20 million grant to help Tribes create their own enhanced IDs. However, even if that request is approved, the money will likely not become available to Tribes until 2010.
 

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