Canadian Dimension Magazine, January/February 2007 Issue

The publicity attending a showdown in the early 1980s between logging interests and Indigenous peoples in British Columbia drew attention to the ecological ideals of the Fourth World. That showdown took place in Haida Gwaii, the legendary archipelago also known as the Queen Charlotte Islands. The controversy attracted the attention of a science broadcaster who was then emerging as one of the most effective voices in the emerging global community of environmental activists. David Suzuki has described his production of a 1982 CBC documentary on the future of the Queen Charlotte Islands as a turning point in his development as a scientist, broadcaster and author. In making the film Suzuki developed lasting collaborations with a number of Aboriginal friends from the region, including Miles Richardson, Guujaaw and Patricia Kelly. As Suzuki describes it, “Guujaaw changed the way I viewed the world and sent me on a radically different course of environmentalism.”

The Spirit of Haida Gwaii

The struggle to save large portions of Haida Gwaii from the loggers became one of the most successful campaigns ever mounted. It linked Aboriginal title to the work of a broad coalition of environmental activists and organizations including the Sierra Club, the Valhalla Society and the Western Canada Wilderness Committee. The success of the project was marked by the creation in the late 1980s of the Gwaii Haanas National Park Reserve and Haida Heritage Site, which now encompasses regions of thick biodiversity and majestic geography.

The bright spot that this campaign represents, however, must be set against the background of human devastation that is the most striking evidence of the failure to recognize and affirm the existence of Aboriginal and treaty rights over several generations. The cumulative effects of a century and a half of systematic dispossession and colonization of Indigenous peoples in B.C. is given striking expression in Vancouver’s Downtown Eastside. Here, a disproportionately high number of the urban homeless are Native people. This group is especially prone to high rates of addiction, poverty and street violence, as well as the many dangers that accompany work in the sex industry.

The extremity of these dangers was made graphic in 2002, when news reports began to circulate that Robert Pickton’s great Vancouver-area pig farm contained the remains of possibly dozens of murdered young women, many of them Aboriginal sex-trade workers. The fate of these women drew attention to the unexplained and often uninvestigated disappearance of many hundreds of Native women. In 2006, it was reported that on one stretch of highway alone in northern B.C. nine girls and women, most of them Aboriginal, disappeared or are known to have been killed over a relatively short period. Amnesty International and the Native Women’s Association of Canada responded to this situation by working together on the Stolen Sisters report and by organizing the Sisters in Spirit campaign.

The aim of this activism has been to break through the walls of ignorance, prejudice and stereotyping blocking the embrace of the shared humanity of those most exposed to the predators that feed, often with impunity, on the vulnerability of the traumatized victims of Indian Country’s ongoing colonization. The makers of the Sisters in Spirit campaign sought to pressure police and the media to reverse their demonstrated tendency to discount the lives of so many young Aboriginal people.

But there percolates an even-more-volatile brew of revelations about the severity of the crimes against Aboriginal youth in the form of the scores of federally funded, church-run Indian residential schools. Until the late 1970s, a large number of these 88 Canadian schools placed pedophiles and sadists in positions of unaccountable power, and, in consequence, were witness to the premature deaths of generations of Indian children.

The revelation of this sordid history has resulted in apologies, elaborate litigation, settlement packages and healing programs. The evidence is growing, however, that there has not yet been full disclosure. It now seems, for example, that Indian residential schools hosted various kinds of medical malpractice and even experimentation that resulted in very high rates of sickness, injury and death. Moreover, the negligence, abuse and criminal behaviour within the system appears to have been clearly identified at the time it was taking place. The situation was allowed to continue for so long because those who tried to raise the alarm were often overruled or actually dismissed by officials of church and state.

In Paris in December, 1948, the Genocide Convention was ratified by representatives of 41 countries on the day before the adoption of the Universal Declaration on Human Rights. In 1973, Robert Davis and Mark Zannis authored a text charging that Canada’s treatment of northern Native people fell within the UN’s definition of genocide. Two decades later, the authors of a research report conducted for Canada’s Royal Commission on Aboriginal Peoples connected the UN’s definition of genocide with the operation of the whole system of Indian residential schools.

More recently Kevin Annett has emphasized the alleged complicity of the medical profession in his characterization of the Indian residential school system as the scene of a “Canadian Holocaust.” Annett, a former United Church of Canada minister, who has been assembling a body of evidence to support the allegations of what he calls the Truth Commission on Genocide in Canada, now believes that the only reliable means of achieving some genuine reckoning with the severity of what has taken place lies in intervention by a credible international agency. As with the arbitration of disputes over Aboriginal title and contested jurisdiction, only agencies with a base in international law and organization can render genuine third-party arbitration on issues in which Crown officials of Canada and its provinces are deeply implicated.

There are complex cycles of history linking the legacy of sexual abuse in the Indian residential schools to horrors like the epidemic of addictions plaguing some Aboriginal communities or the trafficking of children for the purposes of prostitution. From the violent promotion of opium use in China in the nineteenth century to the flood of crystal meth into many reserves during the early years of the twenty-first century, colonialisms new and old have frequently been accompanied by processes that chemically and psychologically enslave subject peoples.

In B.C., there are persistent rumours suggesting that trafficking in drugs and the sexual exploitation of children, many of them Aboriginal, converge in corruption involving high officials in the judiciary and the B.C. Law Society.

The Experiences of Jack Cram and Renate Andres-Auger

In 1999, Jennifer Wade, a founder of Amnesty International in Vancouver, referred to this in a keynote presentation at the Global Conference on the Commercial Exploitation of Children and Youth. As part of her talk, Wade looked back at the experiences of Jack Cram and Renate Andres-Auger. Andres-Auger was the Cree lawyer in B.C. who brought forward allegations about the sexual exploitation of children.

In 1994, Andres-Auger hired Jack Cram to be her lawyer after she fell into difficulties. Wade explained this history as follows: “The sex trade in children is not a recent happening in Vancouver. While doing some research for this presentation, I came across the affidavit of a Cree lawyer named Renate Andres-Auger naming prominent legal personalities and the B.C. Law Society for destroying her legal practice and libeling and slandering her (I have a copy of that affidavit listing prominent plaintiffs with me). Renate Auger alleged this happened partly because of her knowledge of pedophile rings operating out of the Vancouver Club and out of resorts in Whistler. In a very bizarre scene as it was described in the papers I discovered, Ms. Auger and her lawyer, Jack Cram, were first not listened to in the court, and then were handcuffed and dragged out of the courtroom to a jail cell. When Jack Cram eventually did speak, he put before the judge some of his allegations involving cover-ups by the head officers of the Law Society and the judiciary to aid and abet pedophiles and drug dealers. When he insisted on giving more details on radio, Jack Cram was met by ten policemen upon his return from a radio station. He was then put into an ambulance and taken to the psychiatric ward of Vancouver General Hospital. He believes he was injected again and again with mind disorienting drugs.”

No public investigation into the treatment and accusations of Andres-Auger and Cram ever took place. We can only speculate, therefore, on the circumstances behind such a dramatic collapse of dignity and due process in the criminal-justice system. Certainly it is made to seem probable that some highly placed group or individual believed that he, she, or they had a great deal to lose if And-res-Auger and Cram had been able to press charges.

What’s more, the accusations of the two lawyers merged with a powerful stream of allegations by critics who charged that rampant corruption and conflicts of interest permeated the entire proceedings of the $27-million federally funded test case to determine the legal status of Aboriginal title in the lands and water of B.C. Cram was deeply involved in this controversy. At the time Cram tried to represent Andres-Auger, he was also beginning to act for Gitskan Indian clients who charged that their own lawyers had committed fraud against them. That pivotal case began with the assertion that the hereditary leaders of the Gitskan and Wet’suwet’en Indians continued to be the legitimate governors in a large area of the B.C. interior. The case would eventually emerge in 1997 as the basis of the Supreme Court of Canada’s Delgamuukw ruling.

The Bruce Clark Story

Cram’s rapid transformation from a successful and well-regarded Vancouver lawyer to an involuntarily institutionalized patient in the psychiatric ward of the Vancouver General Hospital resembled the treatment extended the following summer to Bruce Clark. It seems that the propensity is high in B.C. to kill the messenger rather than to grapple with the content of difficult messages.

Bruce Clark’s position was that the domestic courts of Canada had wrongfully usurped the jurisdiction of the Indigenous peoples, the Queen and international law in trying to arbitrate the constitutional character of Aboriginal title in much of B.C. In 1995, Clark tried to make this argument on behalf of Aboriginal clients engaged in an armed standoff with the RCMP and the Canadian Army in Gustafsen Lake, B.C. In his effort to represent the self-styled Ts’Peten Defenders, an incident transpired in a rural B.C. court much like those that took place when Andres-Auger and Cram tried to bring their evidence forward. Clark was taken into custody and sent to an institution for a compulsory psychological examination.

Bruce Clark was treated in the media as an amalgam of a stoned rock star and a serial killer. There was a huge emphasis on his shaved head, his unorthodox designer glasses and his provocative sound bites. This approach left little room for balanced coverage of the serious constitutional arguments Clark was attempting to articulate.

In 1973, in response to the arguments of the Nisga’a Indians and their advocate, Thomas Berger, the Supreme Court of Canada had acknowledged in an ambivalent ruling the legal existence of Aboriginal title. Clark had then become prominent as a lawyer developing the field of Aboriginal land claims. He first devoted himself to developing the evidentiary basis for an assertion of Aboriginal title by an Aboriginal group in Temagami, Ontario. His clients, many of whom lived on a small reserve on Bear Island, claimed they had been passed over in 1850, when, on behalf of the British imperial Crown, William Benjamin Robinson negotiated two treaties with the Aboriginal Anishinabek in territory north of the upper Great Lakes.

When Clark failed to make headway in Ontario against a thick wall of judicial hostility, he continued to hone his arguments, writing both an M.A. and then a Ph.D. thesis, both of which were subsequently published. These texts, together with a more recent book, many articles and a large body of court reports and philosophical musings published digitally, form a very rich record of the contentions of a lawyer who alleged that the judiciary, the law societies and many elites of the law profession in Canada had chosen the course of politics and expediency over the responsibility of upholding the rule of law in their interventions affecting Crown-Aboriginal relations.

Clark later moved from Ontario to British Columbia, where he specialized in representing Aboriginal clients like Shuswap elder William Jones Ignace. Ignace and many of Clark’s other clients found legitimacy in their own traditions of Aboriginal governance rather than in the federally funded system of band-council governance spawned and fertilized by Canadian Indian Act. As Clark and his clients saw it, the application of the Indian Act system in B.C. was illegal and tailor-made for manipulation by Crown paymasters. In their view, the organization of B.C. treaty negotiations on the basis of the system of political and legal representation rooted in the Indian Act was an abomination.

Clark’s interpretation emphasized four dates: 1537, 1704, 1763 and 1948. The first date corresponds with the Papal Bull recognizing the right of Indians in the Americas not to be enslaved or robbed of their liberty and property. The second corresponds with a constitutional ruling issued in 1704 by Queen Anne’s Privy Council in the case, Mohegan v. Connecticut. A key facet of that ruling held that any future arbitration on the issue of Aboriginal title in the English colonies in North America would have to be done by independent jurists not connected to the contending jurisdictions.

This judicial independence from the perspective of the litigants is what is meant by third-party adjudication. While the ruling in the Mohegan case might at first glance appear remote, it speaks directly to the contemporary problem of who is going to determine the nature of the constitutional relationship between Indigenous peoples and those others who assert claims of title and jurisdiction emanating from non-Aboriginal sources. A central requirement of any credible rule of law requires that judges must be perceived as neutral, impartial, and capable of assessing in a balanced, disinterested and dispassionate fashion the evidence, laws and precedents placed before them. They must not have, nor should they be seen to have, clear ties with any of the parties that appear before them in litigation. To draw upon the example of team sports, the referee obviously can’t be a member of one of the teams engaged in competition, nor should he or she be perceived as a partisan promoting the interests of one side over the other.

In Clark’s estimation, the precedent established in the Mohegan case applied in British Columbia. Clark maintained that judges in B.C. and the rest of Canada are in no less of a conflict of interest when they decide on assertions of Aboriginal title, jurisdiction and sovereignty than were the judges of Connecticut in 1704. How could judges whose land titles, salaries and judicial status come from the governments of colonies or their successor states fairly assess allegations against those same governments by Aboriginal litigants asserting that their own Aboriginal jurisdictions have been wrongfully invaded? By what right or authority is a precedent set by the highest Crown court in the eighteenth century dispensed with by Crown courts in twentieth-century Canada?

Clark rounded out his interpretation by drawing heavily on the Royal Proclamation of 1763 and on the Genocide Convention. The result was a reading of the law that ranks as one of the most challenging ever brought forward by a legal advocate in Canada. Clark did not back away from accusing the judges he faced of treason, fraud, complicity in genocide and the usurpation of jurisdiction.

Not surprisingly, some jurists lost their composure. Chief Justice Antonio Lamar, for example, responded in 1995 in the Supreme Court of Canada by calling Clark a “disgrace to the bar.”

If valid, Clark’s interpretation calls into question the legitimacy of a system that generates good livelihoods for scores of experts, practitioners, consultants, elected politicians and administrators willing to work within the framework of the agenda to confine Indigenous peoples and their Aboriginal polities within the constraints of municipalization, delegated authority and corporate law. Clark’s interpretation treats whole complexes of litigation as exercises in politics disguised as jurisprudence.

In spite of being disbarred by the Upper Canada Law Society in 1999, Clark remains unapologetically insistent that the rule of law is being violated by the domestic courts and by the regime of Crown-Aboriginal relations, including the B.C. treaty negotiations, based on the system of political and legal representation created by the federal Indian Act.

John Graham and the Murder of Anna Mae Aquash

British Columbia continues to develop on the frontiers of Anglo-America’s changing relationship to land, law and liberty. For example, the attempt by the U.S. government in 2003 to extradite John Graham from Vancouver to face the charge of murdering Anna Mae Aquash in South Dakota created many flash points of controversy within Indian Country. It also brought the heritage of Atlantic Charter into direct conflict with the forces of the national security state.

John Graham is a Southern Tutchone Indian from Canada’s Yukon Territory. In the mid-1970s, Graham was deeply involved in the American Indian Movement and its assertion of the international character of Aboriginal and treaty rights in North America and throughout the Western Hemisphere. One of the most high-profile AIM activists in the early 1970s was Anna Mae Aquash, a young Micmac woman from Shubanacadie, Nova Scotia. AIM made an armed stand in 1973 at Wounded Knee, South Dakota, the scene of an infamous massacre of Native people in 1890 by the U.S. Armed Forces. Gradually, AIM was drawn into a virtual civil war on the Pine Ridge Reserve in South Dakota through its efforts to provide protection for Sioux traditionalists against the paramilitary incursions of the GOON squad connected to the federally backed tribal chairman, Dick Wilson. Dozens of AIM members and sympathizers were murdered during this period in the mid-1970s.

One of them was Anna Mae Aquash. The general assumption for many years was that Anna Mae had been murdered by the FBI or by one of the federal police force’s paid assassins. In the mid-1970s, AIM was one of the prime targets of COINTELPRO, the so-called counter-intelligence division of the U.S. federal police force. COINTELPRO’s mission, involving the planting of police collaborators within AIM, was to confuse its members and to weaken, divide and ultimately destroy the organization.

Part of the technique of destabilizing AIM was through “snitch jacketing.” Snitch jacketing is meant to create as much suspicion as possible within a targeted organization through the encouragement of rumour mongering about who might be collaborating with police officials. Anna Mae Aquash got caught within this web of rumor and suspicion. According to the authors of the charges brought forward in South Dakota, John Graham shot Anna Mae in the back of the head sometime between late December, 1975, and February, 1976. It was alleged he was acting as an enforcer on the orders of the security division of AIM’s leadership.

But John Graham denies he killed Anna Mae. Graham maintains he has been framed, much like AIM member Leonard Peltier. In 1976, Peltier was extradited from Vancouver to face murder charges in South Dakota. It is broadly recognized that Peltier’s extradition proceedings in Canada were based on false evidence.

The background of the John Graham case points to the ongoing character of the Indian wars in North America. It points to the ruthlessness of the effort to prevent Indigenous peoples from acting on the principle that their polities continue to draw sovereign jurisdiction from the unextinguished source of their Aboriginal and treaty rights. It points to the severity of the sacrifices sometimes required of those who insist on asserting the imperative and right of Indian Country to survive in the heartland of the American empire.

After following the story of AIM for more than three decades, Ellen Klaver, a journalist for KGNU Radio in Colorado, has observed of the uncertain facts surrounding the murder of Anna Mae Aquash, “Whoever was involved, the FBI was the architect. They either had her killed or tricked AIM into killing her.”

The controversy swirling around John Graham touches upon the quality of Canadian sovereignty in relations with the U.S. Both Graham and the woman he is accused of killing by officials of the U.S. government are Native people from Canada. Can this tragic case be dealt with and resolved within Canada, or will the Canadian government give in to pressures to send Graham to South Dakota to face the same system that so mishandled the criminal proceedings in the case of Peltier?

Can Canada and British Columbia point the way to new paradigms of relations with Indigenous peoples? Can Crown officials avoid old patterns of genocide in the manipulation of law and lawlessness in the conquests of Anglo-America?

This article was posted on Thursday, January 4th, 2007 and is filed under Canadian Dimension Magazine, First Nations / Aboriginal Peoples, General. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.