Remarks Regarding Immigration Legislative Review Report
These remarks center on the presentation by members of MINGIGNOTI-KETEAOAG and the WABANAKI Nations Cultural Resource Center on the behalf of WABANAKI (First) Nations. The Immigration Legislative Review Committee heard our presentation last May, 1997, which brought forward the profound negative impact that the Canada-United States border has, and has had on WABANAKI Peoples and Nations. Further to this, is the subsequent issue of "canadian" immigration laws applied to WABANAKI Peoples and Nations. Although our presentation reflected the concerns of the WABANAKI, these concerns engulf all First Nations throughout North America.
We are disappointed that the report did not mention these issues much less addressed the problem. While concerns of canadians and americans over immigration matters have legitimacy, understandably, in the light of on-going travesties of justice towards First Nations, the unfinished business in the political and economic arena, the forging of a "new" partnership between First Nations and the government of Canada, and the developing re-emergence and re-building of First Nations Governments and National Structures, we believe that our concerns ought to be and must be effectively addressed in this process of reviewing the canadian immigration law and canadian fiduciary obligations to First Nations. MIINGIGNOTI-KETEAOAG and the WABANAKI Nations Cultural Resource Center feel that Resolve and Security through dialogue and mutual Good Faith with the canadian government represents fundamentally the most appropriate protocol.
With respect to the report and the recommendations, there is very little that can be addressed directly on this subject, based on the lack of substantive acknowledgment of First Nations' concerns and issues. However, certain chapters, as will be indicated, provide an indirect appeal to our concerns and questions. We will provide comments as to the effects the report may ultimately have on the WABANAKI that will further the questionable applications of canadian immigration law in adversity to WABANAKI Sovereignty, Jurisdiction and Territorial Integrity. It is our hope that our comments will provide a positive basis for the Minister to develop a "new partnership" with First Nations that will resolve these needless crisises. In stating this, we are left with a most intriguing question and irony, as we regard canada's process of revitalizing, strengthening, and tightening immigration law and security of the border, on the basis of these recommendations, we are simultaneously developing strategies of dialogue and protocol necessary to resolve these very same immigration matters having unfounded severe impact on the members of, and equally, on the Traditional First Nations. In this, the borders do not, and were never meant to be applied to First Nations of this Turtle Island ("north america").
Restatement of Issues
WABANAKI Nations and other First Nations remain a distinct and formidable presence in their territories. From historic times to the present, north american nation states have had to acknowledge both their politico-legal and binding obligations to First Nations Governments and the legal due process of political protocol established by Treaties with First Nations. This protocol forms the actual relationship between our respective governments and societies.
The border separating the United States and Canada has been and continues to be an unnecessary burden on the WABANAKI and likewise for all other First Nations. The inherent responsibilities/rights of our Peoples to move freely within our territories is fatally hampered and obstructed by this border and, in this instance, the subsequent imposition of canadian immigration law. The following represents a brief re-introduction of issues created by cross-border movement and the application of immigration law that has negatively impacted on WABANAKI Nationals.
SOCIO-CULTURAL AND SPIRITUAL/CEREMONIAL INTEGRITY
The presence of europeans has maintained an adverse affect that continues today. From the earliest colonial wars with our Nations, between european countries, and with varying competing interests in WABANAKI territories, resources and allegiances, the socio-cultural life of our Peoples has been unnecessarily hampered, severely tested, and continually challenged. Despite the tragedy of such history, the WABANAKI remain viable, having and maintaining social, political, and legal continuance and presence in the affairs of human life. Maintaining our spiritually intimate connection to our original territories, WABANAKI presence remains formidable.
The border, that remains established in our territories, continues to adversely effect our peoples, Communities, Nations and Confederacies. The institutions that have been our right since time immemorial have been unjustly and profoundly intruded upon. Such institutions include our ceremonial Life and Spirituality. From birthing to burying our Peoples, north american nation-states have attempted to control and eradicate such inherent rights as marriage, identifying, controlling, and defining our members, and other ceremonial practices, customs, jurisdiction, and traditions.
The canadian immigration law and authorities do not honour nor recognize WABANAKI/First Nations marriages by customs and original religious/spiritual practices. This is one of the many topical issues brought about by immigration laws and cross-border mobility. My Wife and i, married by WABANAKI Customs and ceremony, have been requested by immigration authorities to re-marry by "bona fide" practices of the church or the state. Such expectation by immigration canada is totally repugnant to both the letter of the constitution and moral conscience. There are no grounds, whether legal, religious, or moral, to justify canadian value judgments and racial bias for annulling our marriage. We both refused to undermine our Faith in exchange for the dominance of colonial hold on our peoples. Such expectations on the part of canadian authorities amount to cultural genocide. We will not in good Conscience, aid and abet in our self-destruction.
Equally, maintaining our social relationships are impacted by the border and canadian immigrations laws. There are instances that WABANAKI People have been refused entry into our own Homelands to attend ceremonial and socio-political events of our Peoples. More horrifying, families are presently being torn asunder because one or more family members were born outside of "canada"( in the "united states") resulting in deportation orders for husbands, wives, and/or children. Since immigration has no authorization by legislation as well as politico-legality, policy, cognition, or directive by the government of Canada in the matters of First Nations, the absence and question of jurisdiction and the lack of authorization by our consent means that there are no legal grounds and justifications for any such removal of any WABANAKI.
Immigration authorities have indicated that they would recognize MI'KMAQ (MicMac) / WOOLUSTIKWEK (Maliseet) adoption practices but, as yet, not marriages according to Custom/Tradition.
"Confederacy", in WABANAKI Spirituality, is not about the political aggrandizement of a nation-state type of existence, but rather the reality of creating Family. The confederacy of our peoples is, and operates as, a Family. Our earlier treaties with the English and French peoples were the solemnization of Familial Relationships. Creating relationships of this nature meant that we would never fight nor do injury to ourselves, in the context of Family.
The Treaty of Paris, in 1783, concluded the "American Revolutionary War", creating the separation of british territory in north america from the newly independent united states. The creation of this border violated WABANAKI territorial integrity. Consent and authority to use WABANAKI territory was never obtained by the british nor the americans from the WABANAKI.
The Treaty of Amity, Navigation and Commerce, known as Jay's Treaty, 1794, established peaceful movement between these borders of american citizens, british subjects and First Nations. Articles 3 and 28 specifically recognizes and acknowledges the permanent Aboriginal Right of Mobility to pass and repass this border without immigration and customs requirements. This recognition was confirmed in the Treaty of Ghent, 1814. However, WABANAKI Mobility Rights exists independent of and without the need of recognition and existence of these treaties. (1)
WABANAKI Territories remain intact and have never been ceded to canada nor to the united states. Our People living in these territories are nationals of their respective Nations of the WABANAKI. canada and the united states have intentionally practiced usurpation of WABANAKI territories without consent or authority. It is a matter of historical fact the both canada and the united states have risen from the Homelands of the WABANAKI, and the other First Nations territories.
CANADA BREACHES THE RULE OF LAW
The WABANAKI are intimately immersed in the rule of law that continues to exist in our Communities since time immemorial. The foundation of WABANAKI Customs and Traditions are based in Spirituality originally connected to the 'Instructions' given to our peoples by KI'E'TAN, the Benevolent One. These Instructions, known as the Creator Laws, have been unchanged throughout the generations of the WABANAKI. They remain in effect to this day.
Likewise, International Law, particularly Human Rights Law, has demonstrated a simple and basic application to WABANAKI Nations, other First Nations and Indigenous Peoples throughout the world.
There can no longer be any clear doubt as to the inclusionary character and application of International law to First Nations Peoples. International Law establishes and defines the parameters of inclusion. Hence, the international definition of a People, Nationhood, Self-determination, Economic, Socio-political, Cultural Rights, and fundamental Human and Collective Rights to recognition of Indigenous People as subjects of International law rather than objects thereof, all unquestionably and unequivocally pertain to and includes the WABANAKI and other First Nations.
The United Nations Declaration of Human Rights articles 2, 15, 16, 21, 27, 29; the MONTEVIDEO Convention on the Rights of States, Article 1; International Covenant on Economic, Social, and Cultural Rights, Article 1; International Covenant on Civil and Political Rights, Articles 17, 18, 27; Permanent International Court of Justice, as supplemented by the International Commission of Jurists, definition of a People; Declaration on Granting Independence to Colonial Countries and Peoples; the Convention for the Crime and Punishment of Genocide, Article 2,3,4,7; Draft Declarations on Defense of Indigenous Nations and Peoples of the Western Hemisphere, 1977; Draft of Declaration of Indigenous Human Rights, 1995, are examples of International law in support of WABANAKI right to existence presently breached by the canadian immigration act. (2)
The Canadian Immigration Act is of no effect or force until the act comes into compliance with the Rights and Treaties of WABANAKI Nations. Canada exceeds its jurisdiction when applying, unilaterally, and without the authority from consent, its laws onto and over WABANAKI Nationals and Territories. The Immigration Act, the Ministry, and the proposed recommendations do not conform to the constitutional requirements to affirm and recognize existing Aboriginal Rights and Treaties. To the extent of this basic violation to WABANAKI Rights of Sovereignty, Jurisdiction, Socio-Political and Territorial integrity, the canadian constitution makes void the application of immigration law to all First Nations of Turtle Island and to every member thereof. (3)
Equally serious is the subject of territory. Both canada and the united states have unjustly claimed ownership of all lands comprising the continent of "north america;" these claims include the Homelands and Territories of First Nations. Despite overwhelming evidence to the contrary, these claims have immediate significance to the matter of cross-border mobility and immigration. Immigration claims jurisdiction and right over WABANAKI Nationals born outside of "canada"; this right manifests in the removal/deportation of WABANAKI persons from their Families, Communities, and Nations. In light of the Treaties made with First Nations and the historical legacy of formal nation-to-nation protocol between north american nation-states and First Nations, such claims to territory and jurisdiction over First Nations' members are unfounded and illegal. All members of WABANAKI Nations are well within their rights, as members, to move freely within their Territories and Homelands. Immigrating to their Homes is absurd and any action that treats First Nations members as immigrants is of no effect and void of authority and jurisdiction. These violations are equally unconstitutional; the canadian constitution technically prohibits both immigration and the government of Canada of unilaterally seizing WABANAKI territories and expelling WABANAKI persons from those territories. (4) Actions of this nature amount to criminalizing First Nations peoples for Being First Nations.
Report: Some Significant Impacts the Immigration Legislative Review Proposed Recommendations have on the WABANAKI
Immigration canada and the recommendations presented by the Immigration Legislative Review Committee do not consider the issues, concerns of, or the impact on the WABANAKI and other First Nations. In light of the report and recommendations of the Royal Commission on Aboriginal Peoples, and furthered by the recent statement of the Minister of Indian Affairs, the question arises as to the existence of conformity in the context of nation-to-nation relationship to First Nations.
Particularly, recommendation 1, 4, 29, 30, and 31 asks people immigrating to canada to be expected to enhance the social responsibility and participation of citizenship. When applied to First Nations, this recommendation furthers the ugly history of assimilation, integration, enfranchisement, and extinguishment of Aboriginal Rights. This history has been a primary source of tragedy and resistance for First Nations. Both canada and the united states have unilaterally enacted and enforced citizenship and naturalization legislation over WABANAKI Nations at the steady objections and resistance of the WABANAKI and most other First Nations. Since the time of the enactment of these laws, members of WABANAKI Nations continuously maintain allegiance to our own nations and not to canada nor the united states. The continuity of WABANAKI Reality and Existence is jeopardized by the labels of and enforcement in north american nation-state citizenship, while culturally affirming our right to remain WABANAKI has successfully maintained resistance and strengthened this continuity.
In our present case confronting canadian immigration law, we have likewise indicated and maintained that neither my wife, Miigam'agan, nor myself are citizens of either canada or the united states. We are WABANAKI first and foremost, and have no desire for citizenship in either of these two countries. For us, and many of our fellow tribal relations, citizenship in canada and/or the united states is tantamount to ending the existence of our Peoples, Nations, History, and Homelands.
Item 5 however, provides to us the possibility that negotiation/dialogue can be achieved in the recognition of humanitarian cause and human rights laws.
Chapter 5 is especially disconcerting because of the severity that it will place on our Peoples. The economic conditions in most WABANAKI Communities are well known statistically as severe. Most of our Communities suffer from chronic economic depression, only about 5-10% of our members holds 90-100% of any employment opportunity. The remainder of our People receive social assistance. Whatever assets may avail to seizures, it will not likely be monetary. This then brings the subject of seizure to concern. What likely would be defined as personal assets are those items of personal property that may have a potential economic value, Family car, household items…. In First Nations context, if those contemporary items do not qualify sufficient severity, cultural items/objects having a familial heirloom character may also qualify as an economic asset. (5) If such a determination is made, this then may heighten this possibility as a confrontation of cultural resource appropriation. Non-Indian museums and institutions are quite literally full of Aboriginal "artifacts" that, in actuality, have no business being in the possession on non-indian peoples. Historically, the most notorious possession of First Nations People forfeited for such economic schemes was, and, in some instances, remains land.
How could an Aboriginal spouse qualify to sponsor her/his children/spouse if welfare becomes criteria for determining ability/inability for sponsorship? Aboriginal People will not likely be able to meet the standard of qualification this recommendation suggests.
Recommendations 44, 120, and 122, while regarding obtaining legal status in canada, exemplifies the problems of extending canadian status and jurisdiction over First Nations. Regardless of where WABANAKI Nationals may be situated in regards to the border, seeking to acquire canadian status is contrary to being First Nations; acknowledging status, however, under any socio-political pretext is fundamentally a human right. This notion applies to every government, whether Indigenous/WABANAKI or Immigrant/Canada. The obvious reality to our common human history is a reality based on a colonial polity of dominance and exclusion. Historically speaking, such contrivances have ultimately failed in the objective of creating conformity to the rule of dominance. Identically, contemporary postures of equality and parody, moving the elimination of prejudice, racism, and intolerance, the rise of moral duty and conscientious obligation and accountability, are demanding that every human being be given due respect and dignity. Thereby, no human institution can justify exclusion of any being, human or otherwise, from the quality of Life, Respect, and Dignity. These recommendations, in the context of implying application to First Nations, suggests maintaining the status quo in the long, sorry history of indian-white relations.
Recommendations 141, 142, 150, and 158 regard the smuggling of People across the border and encouraging the cooperation with immigration regulations. Our concern of this particular idea, as it applies to First Nations, pertains to criminalizing WABANAKI persons who steadily profess to, resist from, and perpetuate their status as nationals of their respective First Nations. Pursuing their Rights to maintain and develop in that status and defining their own place in WABANAKI Existence and Reality is an inherent right of humanity. Helping to move their relatives home to their communities across the border into "canada", for instance, after living for years in the "united states" could likely qualify as "smugglers of people". Moreso, when WABANAKI persons, deciding that defiance of such ordinances is justified or necessary to preserve their mobility rights and maintain continuity among one another as WABANAKI, will, predictably, intentionally act from this pretense, which in turn increases the potential and risk of confrontation with canadian officials. It is the very nature of the historic eurocentricism of canadian polity that ignores the fundamental questions and issues of the Right and Responsibility to Be and Remain WABANAKI, as with other First Nations, that would result in such predictable and unnecessary crisises.
Lastly, recommendation 170 provides to the Minister the options to use or not use residual powers. Our concern of this topic rests on the questions of process. What we have been suggesting all along as remedies for curing and resolving these historic dilemmas is based on achieving Good Faith to dialogue and reach mutual accommodation. Reason and the rule of law requires this posture of rational creatures. We are of the opinion that suggesting any official holding the final decision on matters affecting another people, and to further exacerbate this situation with no obligations for explanation of such decision, reverses the objectives and history of the nation-to-nation paradigm, politico-legal due process arising from the protocol actuated by treaty-making powers, and openness to honest dialogue based on Good Faith.
Recommendations 1: Addressing the Report
Subject to analysis and approval of WABANAKI Nations, there are a number of suggested modifications to the above listed recommendations that may satisfy our concerns.
Canada has indicated willingness to regard First Nations as one of three orders of government that would comprise the government of Canada. This form of government ought to be more appropriately termed the Great Confederation of Canada. In this, francophone, anglophone, and indigenous people would not only form, but serve to model this union on the shared principals of democracy, equity, and profound respect for the spirituality, quality, and dignity of Life.
Two noteworthy comments, noting that this particular remark is beyond the scope of the immigration legislative review process to unilaterally initiate, accommodating the concerns of the WABANAKI, and other First Nations, is, however, well within the scope of recommendation. Secondly, the above mentioned proposal already exists as a matter of historical fact and law. First Nations, since european history began on our Turtle Island, have maintained our Treaty Relationship and Commitments to both the French-speaking society and the English-speaking society. The suggestion offered by the Charlottetown Accords and the Royal Commission on Aboriginal Peoples already exists in fact and in law. The fact of this matter, that it is now Canada moving to agree to their already legally-binding obligations arising from this previously established rule of law.
Accommodation can be best achieved by recognizing the existing nation-to-nation paradigm precluding the requirement of First Nations direct participation in canadian society as canadian citizens. Thus, we recommend the following:
The Immigration Act and the Citizenship Act recognizes and affirms First Nations Rights and Treaties consistent with the spirit and letter of the relevant sections of the Canadian Constitution. Furthermore, said acts acknowledge and maintain that all past, present, and future regulations, policies, and amendments be consistent to the nation-to-nation relationship between First Nations and the government and people of canada.In regards to addressing the topic of people smuggling, resistance to cooperating with immigration measures, obtaining legal status, seizures of assets, and qualifiers for sponsorship of Family members, the following suggestion is made:
Nothing in the Immigration Act and the Citizenship Act shall derogate from nor abrogate from the nation-to-nation relationship of the Government of Canada to First Nations, their Peoples, their political structures, social, economic, cultural, and spiritual Rights, nor from their Treaties existing with the national government.It is further urged and recommended that the said acts come into compliance with section 52 of the Constitution of Canada, and that any part of the Immigration Act and the Citizenship Act that does not meet the required consistency set forth in section 52, pertaining to First Nations, be voided and of no effect until at such time, such sections come into compliance.
It is further recommended that no provision of the Immigration Act and the Citizenship Act shall serve to cause irreparable harm to members of First Nations, be taken or construed to manifest unauthorized land cessions, and extinguish in any manner or form the aboriginal rights of First Nations.
Lastly, in recognition of the Minister's residual powers of discretion, recognizing the potential of irreparable and emotional harm done to First Nations and their Families through removal or deportation orders, obstruction of First Nations Mobility Rights, and furthering the objectives of Good Faith, Humanitarianism, and International Human Rights and Law, we suggest the following:
The Minister of Immigration recognizes the merits of First Nations concerns, are acknowledged as legitimate, and in keeping with the Government of Canada's commitment to reconcilliation and rectifying injustices cause by injury to First Nations from past federal policies, and in keeping with the desire of the government to move into new partnership with First Nations, moves to recommend to the Government that nation-to-nation relationships to First Nations be best served in the public interest by pursuing, and commitment to, candid and open dialogue with First Nations to resolve such matters as cross-border mobility, issues of territorial impact caused by the canadian-united states border, and the recognition of Treaties, Royal Proclamations and other instruments arising under the Obligations of Canada, particularly with respect to Articles 3 and 28, of the Jay Treaty, and Article 9 of the Treaty of Ghent, and, as otherwise revealed in the Constitution of Canada.We further recommend, that
The Minister of Citizenship and Immigration immediately respond to the crisises impacting WABANAKI, and all other First Nations, Families and members, with respect to deportation, and all other removal orders, and all immigration proceedings, including, but not limited to, detention, harassment, confiscation of spiritual, cultural, social, political objects, papers, instruments belonging to First Nations and their members, by enacting a moritorium on immigration activities pertaining to clearly identifiable First Nations and their members, until such time as these issues can be properly and appropriately disposed through the well established political due process of dialogue and resolve actuated by and through the treaty-making protocol of the historic and existing nation-to-nation partnership between First Nations and the government of Canada.
Recommendations 2: Over-all Issue
Since the outset of european colonization of our Lands, Territories, and Homes, peaceful co-existence between Indigenous People and those originally immigrating to Turtle Island, has been a near fatal, and continuous, challenge. To this date, the endless cycle of injustice done to First Nations hinges on misinformation, cultural bias, superiority fixation, and the quest to extract even more material wealth from the possessions of Indigenous Peoples and Nations. The most intriguing and tragic consequence of this senseless situation is the betrayal of democracy and the rule of law. It has been said that "Truth" is not complete if its integrity is not whole; the "half-truth", little "white-lie" is still a lie. Recorded history in "north america", that holds so much attention of the domineering social power structure, has been a lie from the very beginning. The ideology of dispossession, the delusions of conquest, the baneful allegation of manifest destiny have serve to justify the injustice, genocide, theft of Indigenous Life and Possession.
To be certain and convincing about this sentiment, is the often "double-talk" / "double standard" nature of the political/law-making institutions masquerading as "legitimacy"; most if not all north american citizens would never have tolerated, much less accepted the conditions of repression as wrought upon Indigenous Peoples. If the history to date of "north america" were reversed, and the good citizens of the "united states" and "canada" were equally subjected to what history has witnessed done to First Nations, there would be no doubt that these circumstances we witness today would indeed be changed immediately.
We have concluded that the only true recourse for the WABANAKI and the millions, upon millions of other Indigenous Peoples throughout this hemisphere and world-wide, and for that matter, all People, is to remain steadfast in the security of Natural Law, the Spirituality of the Life Principal we call KI'E'TAN, the Great Creative Force. There can be only one way for Humanity to maintain and sustain Life, in its entire dimension, that is the way of Truth; not the lie.
In this pursuit, we have formed alliances with all People, who, with mindful conscience, and willful determination, to begin to heal our mutual wounds of this 500 year atrocity, and address that one plaguing, unanswered question that Judge Thomas Berger so articulated as,
By what right did the Europeans take the land and subjugate the peoples of the new world? By what right did they require them to repudiate their way of life? (6)He further adds,
What lies in the way of such accommodation is the persistence of attitudes that have often triumphed in the past: that superiority in arms entitles one nation to subdue another; that land can be taken from a people if we deem them or their use of the land to be deficient; that all cultures should be judged by our own; that injustice, if it is sufficiently long standing, need not be redressed. (7)
CANADIAN IMMIGRATION IN THE CONTEXT OF ABORIGINAL RIGHTS, TO RESOLVE IN THE PUBLIC INTEREST
The government of Canada calls for a "new partnership" with First Nations; one that is based on the recognition of First Nations as being the "third" order of government; one that seeks to reconcile the abusive and unjust treatment of First Nations and their members by canadians through candian public policy. We conclude that the canadian immigration act and the proposed recommendations must be predicated on the rule of law, in its entirety. This then is inclusive of WABANAKI Customs, Traditions, and Way of Life that is foundationally and quintessential our Spirituality; this inclusively embraces international law as it is observed in this brief.
It is the rule of law that equally binds the WABANAKI and the government of Canada to resolve the issues caused by official obstruction of WABANAKI Aboriginal Rights of cross-border mobility, and the circumvention of the political nation-to-nation protocol established in the treaty-making process by unilateral misapplications of the canadian immigration law to WABANAKI Nationals. It is to and for the honour of the canadian people that its government upholds the integrity of its constitution, laws, and Treaties with the WABANAKI and other First Nations, and conforming to the standards demanded by Good Faith, Honesty, and Integrity in being faithful to the fiduciary obligations to the WABANAKI and other First Nations, previously and historically agreed to.
This situation, that has wrought so much havoc, pain, and heart-ache upon WABANAKI Peoples by the intrusion of this illegitimate border, has been, and continues to be senseless and immoral.
1 for the pertinent reference to first nations text of jay's treaty and the treaty of ghent see appendix # one, page 1; appendix # two, pages 3, 4
2 for text reference see appendix # one, page 2; also see appendix # two, pages 5, 6, 7, 8, support of international law, for fuller text
3 for text reference see appendix # one, page 3; appendix # two, pages 9, 10
4 the basis of this statement rests on article 25, 35, and 52 of the constitution of canada; for text see appendix # one, page 3
5 the indian act makes provisions in the despense a member's personal property and/or family heirloom
6 berger, thomas, village journey, collins publishers, toronto, 1985, 1986; page 173 a long and terrible shadow, white values, native rights in the americas,1492-1992 douglas & mcintyre, vancouver/toronto, 1991 page 2
7 ibid, introduction @ page xiii
8 ibid, page 25, 24
9 ibid, introduction @ page xii
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