By: Tara Williamson | Posted May 18, 2017
The trope of the vanishing Indian has been around since Europeans realized Indians existed. In the colonial imagination, then, we began to disappear at the exact moment we were first seen.
This myth, absorbed by wave after wave of settlers over the next 500 years, had clear, if one-sided, economic benefits. If there are no Indians on the land there can be no disputes over who it belongs to; any fiduciary duty the state has to Indigenous peoples disappears when the last of us are gone.
And if we have always been disappearing, according to myth, then Canadians needn’t feel too guilty about contemporary forms of erasure: continued dispossession from our lands, suicide, murdered and missing women, etc. Our disappearance is a given. It has always been just a matter of time.
As Canada prepares to celebrate its 150th birthday, I am interested in understanding how current conversations, including those about reconciliation and multiculturalism, intersect with the myth of the vanishing Indian. And by deconstructing this myth, I hope to remind you we are still here.
How to make Indians disappear (then)
The international legal concept terra nullius (“nobody’s land”) and the Spanish “Doctrine of Discovery” (1493) ensured that Indigenous peoples around the world were erased as both people and nations for the purposes of European expansion. In order for colonizers to uphold their own rules of law it was necessary to declare the “New World” unoccupied and uninhabited.
In precisely this way, the legal foundation of Canada is built on the premise that Indians do not exist as people. The state has a strong interest in upholding this lie: its legitimacy—its very existence—depends on it.
Despite early stories of Indigenous peoples helping settlers survive their first few years, the colonial project continued under the logic of Manifest Destiny—a term normally associated with America’s self-declared right to occupy all of North America, but whose motives and methods transcend borders. War, including biological warfare, slavery and bounties marked those early years of contact much more so than benign co-operation.
As Indigenous peoples succumbed to the techniques of Manifest Destiny, our numbers dwindling while the settler population grew, new methods of disappearance were developed.
Assimilation through education began as early as the 17th century by Jesuits and Récollets. When political institutions stabilized in the 19th century, a reinvigorated residential schools program became an important and now well-documented part of a new legal system designed to eradicate Indians from the geographical and political landscape.
The 1857 Act to Encourage the Gradual Civilization of Indian Tribes enfranchised, i.e., removed Indian status from, any Indian who learned to speak, read and/or write English or French. The Indian Act of 1876 defined who was or was not an Indian, and cemented into Canadian law a reservation system loosely defined in the 1867 British North America Act as “Indians and land reserved for Indians.”
Canada as a nation was therefore born out of a tenuous balancing act. On the one hand the new state denied Indian personhood; on the other its founding acts acknowledge our problematic (for Canada) existence. The preoccupation of the state—Canada’s attempt to reconcile its original contradiction—then as now has been to try to erase us.
How to make Indians disappear (now)
Amendments to and enforcement of the Indian Act through the 19th and 20th centuries ensured a continuity of erasure of Indigenous peoples in the Canadian political and legal sphere. But the patriation of the Constitution in 1982 ushered in a new model of assimilation based on the discourse of liberal rights and a national policy of multiculturalism.
Indigenous leaders fought at the constitutional tables to protect and entrench Aboriginal rights to land and self-government as specific items in Section 35 of the Constitution. But their arguments fell on deaf ears, and their efforts were further frustrated by the attention being paid to Quebec’s calls for sovereignty.
Imagine: Indigenous peoples, who were here first, living under established systems of governance, were being told a colonial, settler government deserved recognition as a “distinct society.”
The disregard shown for Indigenous arguments was captured on film in Maurice Bulbulian’s Dancing Around the Table, Part I & Part II, which can be streamed on the National Film Board website. The constitutional standoff ended nearly a decade later in the Manitoba legislature with Elijah Harper’s infamous, quiet “no” to the Meech Lake Accord.
In that moment, though Indigenous peoples became visible as players on a national political stage, they were cast as blameworthy for the failings of the new Canadian political project. In statements following the Meech Lake vote, former prime minister Brian Mulroney can be heard echoing the sentiments of Manifest Destiny: the Indians are in the way of progress, they know not what they do.
Along with a revamped Constitution, 1982 also saw the arrival of a national policy of multiculturalism. On the surface, the policy was a celebration of diversity in Canada with the benefit of differentiating the government’s position on immigration and settlement from that espoused in the U.S. As one of the pillars of the modern Canadian identity, or at least a worthy goal toward which many believe the country should strive, multiculturalism can be a risky target for criticism. My efforts to do so here borrow heavily from Sunera Thobani in her book Exalted Subjects: Studies in the Making of Race and Nation in Canada.
One noticeable problem with multiculturalism is that it does not take into account the unique and important place the first peoples of this land should occupy in the national discourse. For example, Canada affirmed its status as a bilingual country in the Charter and subsequent legislation, but the state simultaneously denied Indigenous demands for clarification of certain constitutional protections. Indigenous people were erased as original peoples worthy of recognition in the forming of the nation and relegated to a space of general non-whiteness within the policy of multiculturalism.
Thobani goes even further by contending that multiculturalism is an intentional move to innocence allowing Canada to break from its racist, colonialist past and move forward in a way that celebrates cultural richness. Relegating non-white people to a space viewed primarily as cultural—in the superficial “foods, festivals, and fairs” model—depoliticizes the messages of those who still find themselves at the mercy of racist government policy. Multiculturalism, argues Thobani, replaced and diminished messages of anti-racism and silenced Indigenous peoples in their pursuit of political recognition.
The Sparrow test
As Indigenous peoples continued to practise our traditions in our territories, opportunities arose to test the limits of Section 35 in the Constitution. The first major case that made it to the Supreme Court of Canada was a fishing charge out of B.C. It did not set a good precedent.
The Supreme Court ruling established what is called the Sparrow test, a legal mechanism for assessing whether Aboriginal rights have been infringed and/or extinguished. The test asks four questions that are further broken down into criteria for assessment. I want to highlight the four main criteria that function to erase Indigenous rights and peoples from Canadian law.
First, the Sparrow test says that for a right to be considered an Aboriginal right it must be “integral to a distinctive culture.” That means the right being claimed, or practice asserted, must be more than merely “incidental” to being Indigenous. Not only is the standard vague, it is ultimately decided by a non-Indigenous judicial body empowered to tell Aboriginal peoples that the “rights” they are practising are not Aboriginal enough. Indeed, Aboriginal rights cases have failed at this stage for precisely that reason.
Second, Aboriginal rights-holders must prove historical continuity in the exercise of their rights: we must show that we have practised a tradition, without interruption, since before European contact. Given the violent history of colonization and dispossession in Canada, this aspect of the test not only thwarts Indigenous revitalization efforts, it ensures that as colonization has erased us we must continue to be disappeared.
This logic is also inherent in the third problematic criterion of the Sparrow test, which says that if a right was extinguished prior to 1982 it cannot be revived under the Constitution. Remember that this test was developed and has been further modified in the face of real, live Aboriginal peoples who are exercising their traditional practices.
In effect, the courts are saying directly to Indigenous peoples: “If we told you that you couldn’t exercise your right before the Constitution, then never again will you be able to exercise that right. Just because you are actively existing as Indigenous peoples on your traditional territory does not mean we are obliged or inclined to recognize you in any way. We do not see you.”
Finally, we must attack the concept of justifiable infringement. Should an Aboriginal right or practice meet all the criteria of a recognizable and defensible right, it can still be infringed upon if the government can successfully argue it has valid, substantial, compelling legislative reasons. In Delgamuukw v. British Columbia (1997), the court found (emphasis added):
The development of agriculture, forestry, mining and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, and the building of infrastructure and the settlement of foreign populations to support those aims, are objectives consistent with this purpose.
In a case of justifiable infringement, Aboriginal rights are initially acknowledged but ultimately erased—because how can we exercise a right to fish, for example, when a hydro station is built on the river?
While patriots will flag progressive mechanisms intended to “recognize and affirm” Aboriginal rights, the judicial system maintains the capacity to narrow and gut those rights of all meaning. Canada’s current legal system is, in other words, not much different than the one which first looked Indigenous people in the eye and said “terra nullius.”
Fast forward to 2017 and we are now faced with a new discourse of reconciliation. Various Indigenous voices have pointed out the problem of even using the word.
Artist and professor David Garneau’s position, expressed in his presentation to a symposium on reconciliation in Sault Ste. Marie, resonates with me: “This word choice imposes the fiction that equanimity is the status quo between Aboriginal people and Canada.” Garneau asserts that reconciliation limits the conversation so that it focuses solely on the relationship between Settler Canada and Indigenous peoples, and is therefore necessarily confined to a post-contact narrative.
In the Canadian imagination, Indigenous peoples are visible (exist) only in so far as they interact with settlers. Not only does this go against the spirit of the Two Row Wampum Treaty of 1613—that we will occupy separate canoes, one path shall not interfere with the other—but it denies a separate, Indigenous identity. Garneau asserts the existence of “irreconcilable spaces of aboriginality” that have existed since time immemorial and do not rely on perspectives or relationships outside of themselves.
For reconciliation to be effective as conceived, on the other hand, a certain kind of Aboriginal subject is needed. We must be willing to reconcile, willing to hear apologies, willing to share our trauma with others, willing to heal and willing to forgive. I emphasize willingness because it exposes another point of erasure. What happens to the irreconcilable Indian? The one who is angry, resentful, outspoken and critical of the process?
An irreconcilable Indian cannot exist in a system of reconciliation. There is no space for her. She is either completely erased or she is condemned for not existing in the newest Aboriginal-friendly space created by her oppressors.
On the flip side, reconciliation also imagines and perpetuates a certain kind of settler-subject. The willing, reconciliatory settler is moved by the stories of trauma, wants to participate in healing, is interested in learning about and incorporating Indigenous cultural practices into her life. It is only through these things that we can all move on.
The real goal of the settler-subject in reconciliation is to relegate colonization to the past—so that Canada can let go of the guilt it has been holding since contact.
Indeed, you can feel the collective uneasiness about twinning, even unintentionally, official reconciliation and a giant 150th birthday party. The City of Vancouver almost decided to boycott the latter, until someone decided to add a plus sign to Canada 150+, without which we reproduce the myth this was “no man’s land” before Confederation.
And really, where do you even start to celebrate? Do you invite the kid you’ve been bullying for 150+ years, expecting a present and a pat on the back for being so thoughtful? When the kid arrives, do you pretend like nothing ever happened? Do you apologize?
And what do you expect in return? It’s your birthday, after all—it’s a party. It would be very unkind of your guest not to accept an apology and eat some cake. If you’re going to be a spoilsport, maybe you just shouldn’t have come.
Here to stay
From this Indigenous perspective, colonialism has always been and will always be about erasing me. The very foundation of this country relies on my non-existence. This erasure continues through literal killings (at alarming rates in the cases of suicide and murdered and missing Indigenous peoples), administratively through legislation and policy, or socially, in the pressure to assimilate into mainstream Canada.
Reconciliation is not a break from this situation but its continuation. It asks me to exist according to the Canadian agenda, and forces me to engage in an abusive, colonial relationship if I want to be acknowledged and seen.
If reconciliation were actually about making amends for the past it would involve actions that accounted for the ongoing legacy of colonization. We would be having conversations about land repatriation. We would talk about dismantling structural inequities. You would give us back our children.
And that would just be the start.
Reconciliation is not really about Indigenous peoples. It is something visited upon us as Canada tries to maintain a great myth the dispelling of which would unravel a nation: how can Canada continue to exist on the stolen land of Indigenous peoples while we are still here?
To date, the answer to this question has been based on erasure. Just make them go away. But to date, it has not worked.
To have a real conversation about reconciliation we need to rephrase the question slightly, to change the emphasis: How do you plan on continuing to exist on our stolen land, knowing that we have always been here and aren’t going anywhere?
Tara Williamson is a singer-songwriter and poet from Manitoba by way of Peterborough. Her newest album, Songs to Keep Us Warm, is available on iTunes and Bandcamp.
This article was first published in the May/June 2017 issue of The Monitor, the Canadian Centre for Policy Alternatives’ national magazine. It’s republished here under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 Unported license. Read the original article.
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