http://switlo.com/opinion.php?selected=61 Burning down the house The Mohawks of Kanesatake Janice G.A.E. Switlo The Mohawks of Kanesatake have been frequently in the news this year. On January 13, 2004, Chief James Gabriel's house was set on fire and burned to the ground, the culmination of the conflict between Chief James Gabriel's and his supporters' efforts to achieve the conquering of the Mohawks of Kanesatake and other chiefs and their supporters trying to preserve the Mohawks of Kanesatake and fend off the final step in a long history of conquest strategy executed by the Canadian government. Gabriel left Kanesatake, returning only recently: "Protected by an entourage, Gabriel slept Wednesday night [November 10, 2004] at the farmhouse of his British-born mother, Margaret." He said, " 'I've been told repeatedly that I'm not welcome back in the community' " (Jeff Heinrich, "Gabriel returns to Kanesatake," Montreal Gazette, November 11, 2004.) It is a good time to consider the recent history of this local Mohawk community and canvass the formal record. What will the evidence look like some years hence when this period is revisited to determine just what happened here? Will the evidence prove that the Mohawks of Kanesatake failed to meet their last challenge, gave up and were conquered? Or will it prove that this was just another unconstitutional attack on the Mohawk that threatened the peace? There is no doubt that there remain some who say that they did not agree to become only an ethnic minority group, remnants of a former Mohawk Nation, defined solely by the federal government and having only delegated powers. They say that they are more than mere descendants from the Mohawk. They are Mohawk. They refuse to represent that the Mohawk Nation is extinct. I warn however, that the formal record by design heavily paints a considerably different picture that is to be ignored by the Mohawk and other Indigenous nations only at great peril. The following address to the UN Permanent Forum on Indigenous Issues (UNPFII) seeking international assistance demonstrates the continued existence and exercise of Indigenous governance at this local governance level within the Mohawk Nation. It also serves to remind that international treaty enforcement development is needed as Canadian domestic courts and counterpart international ethnic minorities dispute resolution models based on UN and OAS bodies (Organization of American States), including the UNPFII, do not assist the situation where Indigenous peoples are not conquered, but rather, serve a role in the conquering: "Mr. Chairman, We bring you greetings from the men, women and children of the Mohawk Nation at Kanehsatake, which lies within the colonial boundaries of Canada. My name is Tewatonhawitha Montour of the Wolf Clan of the Mohawk Nation. I have come to speak about Bill S-24 [the federal Kanesatake Interim Land Base Governance Act] and the new tripartite policing agreement, which are being implemented in our community. These agreements are an infringement on our sovereignty. Our community elders and children are suffering because of the conflict that these agreements have caused amongst our people. This has caused divisions within families, our schools, and health services, and in the community in general. Our people have been banished from our territory by the courts denying them their only means of livelihood. Our people have been wrongfully charged by the courts because of policing issues and the threat of a police invasion into our community by the Royal Canadian Mounted Police and the Surete du Quebec, supported by an Aboriginal police force. Bill S-24 will make Mohawk Territory into a municipality and erode our ancestral rights and use of our land. This is a violation of our basic human rights and fundamental freedoms. The Canadian Government's use of referendums to force its legislation on our lands is against our traditional method of governance by consensus. Our traditional method of reaching consensus avoids conflict and avoids the confrontation that now exists and threatens our women and children. I would like to invite the members of the Permanent Forum to visit our community and see first-hand the situation that we live in. Do not judge our situation by what you read in the mainstream press or by statements made by the Canadian or Quebec Governments. Mediation is the correct process to defuse the tension in Kanehsatake. Force of arms on either side will not bring peace. The mandate of the United Nations is to find peaceful resolutions to disputes. As part of the United Nations, we ask the Members Permanent Forum on Indigenous Issues to use their good offices to intervene and help settle this dispute and help bring peace to our community. On behalf of the men, women and children of the Mohawk Nation at Kanehsatake, I thank you for listening. Tewatonhawitha Montour" The following recent press release indicates that the Mohawks of Kanesatake continue to strive to set the record straight: "KANESATAKE MOHWAK TERRITORY, November 11, 2004, The Mohawk Community of Kanesatake is outraged at Ghislain Picard, AFN Quebec Regional Chief for not allowing a delegation from Kanesatake to address the Quebec Chief at the Assembly of the First Nations of Quebec and Labrador General Assembly which is being held at the Hyatt Regency in Montreal from November 9th-11th, 2004. The Kanesatake delegation included Elder, Skawenati Monture, Hugh Nicholas, a former Grand Chief, Steven Bonspille, a former Council Chief and other members of the community. The delegation wanted to explain to the Quebec Chiefs present at the meeting, the true situation in their community. The also wanted to clarify the finds of a report which was commissioned by Ellen Gabriel, Interim President of the Quebec Native Women, a cousin of James Gabriel, and presented by Patricia Gabel (Gabel International Corporation) a non-native group, to some of the Quebec chiefs. The so-called 'Partners in Peacebuilding project' undertake by Patricia Gabel was at the request of Ellen Gabriel and some members of the local Kanesatake Quebec Native Women's Association mostly comprising of sisters, cousins and a very small group of supporters of James Gabriel including his mother, a non- native. The Federal and Quebec governments are funding the project and they are backers and supporters of James Gabriel. The Kanesatake community learned that James Gabriel, was allowed to address and sit with the chiefs even though he was no longer the Grand Chief for Kanesatake. The mandate, term of office and their legal authority of the Mohawk of Kanesatake had expired on midnight on July 13th 2004. There was no political representative from Kanesatake at the General Assembly. The delegation wanted the same standing as James Gabriel but they were denied by Ghislain Picard, a friend and a strong supporter of James Gabriel. There were some Chiefs who wanted to hear the Kanesatake delegation but they to (sic) were denied the opportunity to hear the truth. ... The project by Ellen Gabriel and Patricia Gabel is not supported by the Mohawk Community of Kanesatake." Canada has chosen to recognize Chief Gabriel pending a further election, which is not surprising: "The Government of Canada will continue to recognize the ongoing authority of the current Grand Chief and Band Council of the Mohawks of Kanesatake until the Court seized of this matter renders a decision." (Statement by the Honourable Andy Scott Regarding Kanesatake, Ottawa, October 8, 2004) What is also not surprising to this writer is that the AFN decided to follow suit, given its expanding role in facilitating the federal agenda. The Assembly of First Nations is currently undertaking the consultation processes that will support Bill S-16. Senator St. Germain, P.C. presented Bill S-16 in the Senate, "An Act providing for the Crown's recognition of self-governing First Nations of Canada," read for the first time on Wednesday, October 27, 2004. Describing its "National Discussion on the Recognition & Implementation of First Nation Governments," the AFN has announced that "regional discussion forums will be happening across Canada over the next month, culminating in a presentation of a report on this issue at the Assembly of First Nations Special Assembly in 2005." First Nations Governance Act part II is well underway as anticipated - only this time with more solid evidence of consultation - a step needed to be sufficiently satisfied under the test for extinguishment set out in Delgamu'ukw and other Supreme Court of Canada decisions. (I am releasing a paper on the latest goings on very shortly, on www.switlo.com and elsewhere.) But there are also mixed messages on the record from Mohawks. On July 13, 2004 a "Statement from the Kanesatake Mohawk Women's Coalition" contained the following: "We the women, children and men of Kanesatake will not tolerate this interference from Canada and Quebec, we will assert our sovereignty and our jurisdiction. Let this be known to all who have come forth in support of James Gabriel, Kanesatake made it clear that he is not wanted, we will not except (sic) his substandard policing and we will never except the governments attempts to instill (sic) its dictatorship on the Mohawk's of Kanesatake." However this statement also endorses a Memorandum of Understanding and the Agreement in principal to negotiate: "The principal does not apply to the Nations who compose the Iroquois Confederacy. As a result Kanesatake does not recognise (sic) the exercises of any rights by Canada outside of the Memorandum of Understanding and the Agreement in principal to negotiate. Canada has no authority outside of the consent of the people, everything, which Kanesatake has done, in the past or present has always been with the consent of the community of Kanesatake." [emphasis added] According to the formal record, the Mohawks of Kanesatake also agreed to the following by way of ratification vote: "An Act to implement an agreement between the Mohawks of Kanesatake and Her Majesty in right of Canada respecting governance of certain lands by the Mohawks of Kanesatake and to amend an Act in consequence," which led to the passing of the Kanesatake Interim Land Base Governance Act, said agreement having been signed on December 21, 2000. In this Act, " 'Council' means the council of the band, known as the Mohawk Council of Kanesatake." Also according to this Act, " 'Kanesatake Mohawk law' means a law enacted in accordance with the provisions of this Act." The only law thus being according to the Act, is delegated law flowing from Her Majesty's governments. This is not to be confused with Mohawk law as in the laws of the Indigenous people - the Mohawk, part of a well-known confederacy. The Act also contains, "This Act does not address any aboriginal or treaty rights of the Mohawks of Kanesatake. Nothing in this Act is intended either to prejudice such rights or to represent a recognition of such rights by Her Majesty in right of Canada." Not intended but does. It is silent as to the effects of such representations by these people. It is silent as to the recognition made by these people that the laws of these people are merely delegated by Her Majesty's federal government that therefore, there is no Mohawk. In section 5 of the Act, the Mohawks of Kanesatake are defined in law, by federal law only, with its legal status and capacity set out therein. In section 6, the exercise of jurisdiction and powers is only through the Council (see definition above): "6. The Mohawks of Kanesatake shall act through the Council in exercising the jurisdiction and powers under this Act." There are Mohawk of Kanesatake who did not participate in the ratification exercise. Consistent with Mohawk law, that signifies no consent. Further, their non-participation confirms that the entire process is inconsistent with Mohawk law, that no mandate existed to even propose a ratification vote. This is ignored however, and the federal government considers only the people who turned out to vote. This will be ignored in the future as well unless it becomes firmly part of the record. Implementation of the final step in a long history of federal conquest strategy is underway elsewhere in another Mohawk community, Kahnawake: "Canada Kahnawake Relations (CKR) is a bi-lateral, government to government process for negotiations between the Mohawks of Kahnawake and the Government of Canada to establish a renewed relationship." In commenting on recent developments in Kahnawake, Russell Diabo, "Membership Law Should Be Put To A Community Referendum," guest editorialist to The Eastern Door, October 29, 2004, Volume 13 No. 40, Russell Diabo says, "The fact is, this law affects the long-term rights and interests of individual community members and should be examined, understood and voted on by community members before it is applied in the community. The MCK held a referendum on a casino proposal, but merely issued a 30-day notice before adopting the 'Membership Law' that will have arguably more far-reaching impacts on community members than a casino would have. ... for the MCK to arbitrarily set itself up to determine what are 'collective rights', 'customs' and 'traditions' in a 'community law' without an opportunity for a ratification process involving all Kahnawakero:non, is a recipe for internal conflict." This is what people will have to get used to once mere ethnic minorities. Diabo also critically reminds, "I also believe it is hypocritical of the MCK to try and sell its 'Membership Law' as a step towards 'restoration of Traditional Law within Kahnawa:ke.' Community members should ask if this even resembles Kanien'keha:ka 'traditional law'. ... Let's not forget that the MCK is a 'band council' under the Indian Act and the 'band council' system was imposed on Kahnawakero:non in the late 1800s, but the Indian Act Chief and Council were never consented to by a majority of Kahnawakero:non." Let's be absolutely clear. The current federal agenda and policy imperative in removing bands from under the Indian Act is to move them on to the next and final level of assimilation under new legislation, so that assimilation by legislation is complete. (See "Natural assimilation: Assimilation by administration and design," Sheds the Light, October 8, 2003, www.switlo.com) It has nothing whatsoever to do with sovereign powers of self-governance other than to effect their termination. It specifically achieves recognition by Indigenous peoples that as at the time of the Constitution Act, 1982, they were clearly special ethnic minorities. (More on that in an upcoming paper release.) The people's voice can then only be heard through an election for chief and council. The only thing that they are left with is who to vote for come election time, and even that does not become a free choice in an environment where vote buying remains legal in an election for chief and council. Everyone is told that they are getting something special, just for them, and many continue to fall for that old line and agree to various negotiation processes. Quite frankly, it is astounding that it still works. The policy on land claims and self-government has not changed and so federal representatives at those tables can only offer the same old same old. Words are sometimes changed, but not the policies. (That should tell people something about the words. There are lots of ways to say the same thing in law.) There are usually some domestic lawyers in those pictures, sitting at the tables, billing their "first nation" clients. Surely they cannot be that incompetent and negligent in their duties to their clients? What do they think? That the moneys can be legally spent and the civil servants somehow mandated to negotiate on a mandate that has not yet been mandated? Absurd. Final implementation remains at full speed ahead, no matter how much some may long to hear or are being told something different. Don't believe it. No one has succeeded in stopping that train. The hope is that once that train is boarded, a process is committed to and develops its own life, it will not be stopped and will come to its inevitable destination of extinction. "Watch out You might get what you're after" (Burning Down the House) The Indian Act was imposed, without consent. But in the case of the Kanesatake Interim Land Base Governance Act, and all such others that come to be, including for the Kahnawake should they complete their "unique bilateral process," and all those governed by the First Nations Land Management Act and to be governed under the act that will result from Bill S-16, "An Act providing for the Crown's recognition of self-governing First Nations of Canada," are on the record as being asked for by the people, via the various agreements, such as "the agreement between the Mohawks of Kanesatake and Her Majesty in right of Canada respecting governance of certain lands by the Mohawks of Kanesatake." That is on the formal record in the case of the Mohawks of Kanesatake, and becomes similarly on the record for all others who follow suit. The Indian Act is an unconstitutional and unlawful interference with Indigenous peoples' governance - self-governance in the international context not dependant on Her Majesty but permanently allied with and protected by Her Majesty in exchange for the permissions granted to Her Majesty by the Indigenous peoples, nation-to-nation, - not self-government as central domestic government provided with delegated self-governance through Imperial order in turn providing for local government functions all originating in Her Majesty. What will it be, self-government Not-Conquered-style or self-government Conquered-style? The Kanesatake Interim Land Base Governance Act accepts and concedes that Mohawk does not exist and, ipso facto, that their governance does not exists. Only descendants of Mohawk exist. Bill S-16 "An Act providing for the Crown's recognition of self-governing First Nations of Canada," similarly will recognize what is designed in the final step of colonial conquest to exist - delegated governance. All of this is confirmed on the record by the January 31, 2003 decision, Francis v. Mohawk Council of Kanesatake (T.D.) [2003] 4 F.C. 1133 at para 15: "... Accordingly, it is preferable to compare band councils to municipal councils (Canadian Pacific Ltd. v. Matsqui Indian Band (C.A.), [2000] 1 F.C. 325). That being said, I recognize that the legislative powers of the Mohawk Council of Kanesatake under the Act may be somewhat more limited since the Kanesatake territory is not a 'reserve' within the meaning of the Act. Moreover, the Kanesatake Interim Land Base Governance Act, S.C. 2001, c. 8, rectifies, to a large extent, this latter deficiency. Section 7 of the latter Act provides that the Band has jurisdiction 'to make laws in relation to the use and development of the lands in the Kanesatake Mohawk interim land base'. Those powers are exercised through the Council. From the list of powers enumerated in said Act (including, for example, traffic regulation), I have no hesitation in concluding that they are analogous to the ones generally attributed to municipal councils and that the Band's "law making powers" come within the ambit of section 32 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11 (the "Charter") (RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573)." All of this was in place well before the present struggles said to have been triggered by the death of Chief Crawford Gabriel on October 3, 2002. The Kanesatake Interim Land Base Governance Act was assented to June 14, 2001. The people confirm all this on the record that they exist because of and at the pleasure of the federal government, as they went to court to confirm what the custom was: "The applicants, three of whom are Council members and the fourth who is a non-resident Band member, have brought the present judicial review application to set aside the impugned decision, to declare what the custom of the Band is and to obtain other injunctive relief." There is nothing in all of this that is in any way "sovereign." To the contrary, these people have put on the formal record that they do not see themselves as sovereign, as is understood in the international context, in the context of Indigenous peoples. They could however be seen to be "sovereign" as perverted and defined as self-government in a domestic context, the definition being promoted by Harvard professors throughout Canada for two years now and now championed by the AFN. It must be understood that currently from the formal record, this is not a situation of a police force entering a local community of the sovereign Mohawk. Rather, it is a question of a police force entering a Canadian municipality. Thus the following is perfectly reasonable on the part of the federal government, being consistent with that record: "The Government of Canada will continue to recognize the ongoing authority of the current Grand Chief and Band Council of the Mohawks of Kanesatake until the Court seized of this matter renders a decision." This is not "custom government" as in the nature that the Kanesatake Mohawk Women's Coalition may have believed it would be. This is "custom government" as permitted by the federal government, to be confirmed by the courts. This is "custom government" as in pick your federal agency representative by your preferred means. It has nothing whatsoever to do with self-government as that term is applied and understood internationally. It has everything to do with self-government such as in other municipal governments in Canada - self-government Conquered-style. At the end of today, the best that I can conclude is that there are still many mixed messages emanating from this part of the world, which is either still sovereign Mohawk territory, or is simply conquered lands of the former Mohawk peoples. What is in law (de jure) and what it all looks like (de facto) is not consistent. If it continues to look as is does based solely on the orchestrated formal record, de facto an ethnic minority group with delegated authorities, then it will become the law de jure: Mohawks extinct. It is up to the people, the governance of the Mohawk to set it all clear. In this, I mean not just decentralized, local community governance, erroneously called at times "nations." I mean the nation. The Mohawk. The people. Are there simply pockets of leftovers out there? People who call themselves, "descendants of Mohawks"? Or are there still Mohawk, having local communities coping with unlawful and unconstitutional interference with their sovereign governance powers? People who call themselves, "Mohawk." The decision is not for domestic court judges today. It is a decision for the people today. Who are they? Who do they say they are? Where is this being said? Will what is being said remain available, for the record, when some future domestic or international judge dares to consider the question, "When did the Mohawk die?" When that judge looks into the eyes of those not here today, whom will that judge see? The eyes that I have so looked into, say Mohawk. But those young eyes look worried indeed, so I am seeing to it that those who want the record correct for that time have a means to do so. Information on this will be available on my homepage at www.switlo.com. "Hold tight wait till the party's over Hold tight we're in for nasty weather There has got to be a way Burning down the house Here's your ticket pack your bag; time for jumpin' overboard Transportation is here Close enough but not too far, maybe you know where you are Fightin' fire with fire ... No visible means of support and you have not seen nuthin' yet Everything's stuck together I don't know what you expect staring into the TV set Fighting fire with fire" And that is all I have to say. Janice G.A.E. Switlo Burning Down the House Talking Heads Speaking in Tongues (1983) My first year of law school at Osgoode Hall Law School in Toronto, Ontario was 1983 and I fondly remember the Thursday night pub nights at the school. I was 24 years old with hair-sprayed big hair, my treasured Greenwich Village, NYC black and silver sparkly one-of-a-kind Converse runners and green neon pants and accessories newly acquired from chic European boutiques during my travels, which the somewhat stuffy and certainly bland preppy atmosphere tolerated with a bit of a sniff that I was just one of those "Lotus Land" types (from Vancouver, British Columbia). While many chose to stand looking bored with beer bottles in hand, I preferred hours of energetic dance, often starting up the dance floor, which became infectious and earned me the nickname "double-time." I like to think I shook things up a bit during my time there. I still try to. "Art School and Punk Rock truly came head to head when the Talking Heads formed in 1974. Although they sported neither spiked hair nor pinned shirts, they perfectly embodied the disembodied, and their stuttering vocals, choppy rhythms and detached lyrics fit right in at CBGB's. This phase wouldn't last long, however, as David Byrne's smartly subversive songwriting was bound to find an audience bigger than New York's punk rock elite. With Fear Of Music (1979), the band began to radiate a kind of somber power, as they beefed up their previously lean sound with African rhythms. Remain In Light followed in 1980, and remains one of the more striking albums of that decade or any other. The rhythms were meticulous and yet completely driving, while the production was highly experimental with enough conventional flourishes to make Once In A Lifetime a radio success. Their blueprint now set, the group became hugely successful over the course of the 1980s, and their 1984 concert film is widely considered one of the best ever made. Their music was so immediate that their worldbeat-inspired songs still sound unique in whatever context they're heard. The group gave official notice that it was disbanding in 1991, bringing an inevitable close to one of the most creative and experimental commercially successful acts of the rock 'n' roll era." (Rolling Stone)