Hot! After the Indian Act

National Post – Opinion/Special to the National Post
Friday, Sept. 17, 2010.   Joseph Quesne

To paraphrase one of my favourite history professors, “It is easier to destroy something than to create something new.”

He was talking about Stuart Britain, and more specifically the beheading of Charles I during the English Civil War — a period when it was popular to discuss dramatically reconfiguring society and politics. Later, France would take this “big bang” approach to its logical conclusion. Their revolution had horrifying results for human rights.

I thought of all this as I considered the debate over replacing the Indian Act. National Chief Shawn Atleo of the Assembly of First Nations (AFN) is saying he wishes to see the Indian Act — the 19th-century federal legislation governing most aspects of Indian reserve life in Canada–replaced within three to five years. At the Institute of Public Administration of Canada, he told an audience of close to 700 civil servants that they need to be involved in a new “public policy project” to replace the Indian Act.

This is a critical discussion, and Atleo is courageous for tackling it publicly and at such a high level.

First Nation leaders have been calling for the end of the Indian Act for decades.

Just as observers in Old Europe knew there were problems with the Divine Right of Kings, aristocracy and feudalism, it is widely recognized that the act is paternalistic, distorts First Nation democracy and locks reserves out of the economy. But to avoid the kinds of shocks experienced in Old Europe, First Nation citizens, policy makers and governments must carefully think about what would actually fill the vacuum left by any winding up of the Indian Act.

Some modern cautionary tales include Quebec, which underwent rapid change in the 1960s during the Quiet Revolution. At first, the liberal reforms were good, but eventually they replaced Catholic paternalism with state paternalism. Quebec is only starting to realize the pernicious economic effects of this model. Similarly, Russia’s collectivist culture was not prepared for the privatizations of the 1990s, and corrupt commissars have been replaced with corrupt oligarchs.

Recognizing problems is only the start of useful reform. The real challenge is replacing the Indian Act with something that’s actually better.

It would be critical that First Nations seeking life after the Indian Act engage in bottom-up discussion and debate. Menno Boldt, author of Surviving as Indians: The Challenge of Aboriginal Self-Government, has argued that elitism has grown in First Nation communities; the band elected leadership, well-connected bureaucrats and businesspeople sit at the top, and the rest of the people struggle at the bottom, especially women without secure property. A post-Indian Act world will only work if all people, not just elites and academics, are involved in the decisions.

In particular, they must consider how powers will be distributed. These communities cannot replace federal government oppression with indigenous government oppression. Policy expert Gordon Gibson has described the problem First Nations face in governance as “small governments with large powers.” If power is not diffused, chief and council control important areas of life such as housing, social assistance, employment and whether kids go to college or university.

First Nations can draw upon indigenous models where leadership is more responsive to the people, but cultural differences should not be exaggerated to the point that First Nations attempt to completely reinvent the wheel of political philosophy.

Indigenous scholars assert Indians are different than everybody else. To a certain degree, this is true. First Nations value culture, language and homelands. But, polling — including the recent Urban Aboriginal Peoples Study by Environics — reveals that First Nations share universal goals like a good job and career, and getting ahead in life. In a forthcoming study presented first at a conference of the Canadian Political Science Association, researchers Christopher Alcantara and Greg Whitfield assessed 14 modern aboriginal constitutions by self-governing First Nations. They discovered these constitutions contained plentiful references to liberal democratic values, such as freedom of expression and religion, and a commitment to majoritarian democracy. They also included recognition of rights to the land and clan-based representation, but these values are not fundamentally at odds with the West.

The Federalist Papers, for example, are a monumental work on the U.S. separation of powers which addresses universal issues and should be seen as a valuable resource for First Nations rebuilding their bodies politic in a post-Indian Act world.

The elephant in the room is economic self-sufficiency. Even the Royal Commission on Aboriginal Peoples concluded First Nations require secure fiscal footing. First Nations need a realistic plan, not just to free themselves from federal dependency, but to become independent.

Let the long, thoughtful conversation begin.

-Joseph Quesnel is a policy analyst with the Frontier Centre for Public Policy, where he writes about Aboriginal and property rights issues.

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