Document Information

Date: 1983-06-02
By: Canada (Parliament)
Citation: Canada, Parliament, Minutes of Proceedings and Evidence of the Special Committee on Indian Self-Government, 32nd Parl, 1st Sess, No 32 (2 June 1983).
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HOUSE OF COMMONS

Issue No. 32

Thursday, June 2, 1983

Chairman: Mr. Keith Penner

Minutes of Proceedings and Evidence
of the Special Committee on

Indian
Self-Government

RESPECTING:

The status, development and responsibilities of Band
governments on Indian reserves, as well as the financial
relationships between the Government of Canada and
Indian bands.

WITNESSES:

(See back cover)

First Session of the
Thirty-second Parliament, 1980-81-82-83

SPECIAL COMMITTEE ON
INDIAN SELF-GOVERNMENT

Chairman: Mr. Keith Penner
Vice-Chairman: Mr. Stan Schellenberger

Messrs:

Allmand
Chénier
Manly
Oberle
Tousignant —(7)

(Quorum 4)

François Prégent

Clerk of the Special Committee

MINUTES OF PROCEEDINGS

THURSDAY, JUNE 2, 1983
(72)

[Text]

The Special Committee on Indian Self-Government met at
9:59 o’clock a.m., this day, the Vice-Chairman. Mr. Schellen-
berger, presiding.

Members of the Committee present: Messrs. Allmand,
Chénier, Manly, Oberle. Schellenberger and Tousignant.

Ex-officio member present: From the Assembly of First
Nations: Ms. Roberta Jamieson.

In attendance: From the Research Branch of the Library of
Parliament: Mrs. Barbara Reynolds. Research Officer.

Witnesses: From the Blood Tribe: Mr. Wayne Wells,
Councillor; Mr. Leslie Healy. Councillor; Mr. Virgil Brave
Rock, Councillor and Mr. Narcisse Blood. Technician. From
the University of Lethbridge: Professor Leroy Little Bear.

The Committee resumed consideration of its Order of
Reference dated Wednesday, December 22, 1982. (See
Minutes of Proceedings. Wednesday. December 22, 1982,
Issue No. 1.)

Mr. Wells, Mr. Healy and Mr. Brave Rock each made a
statement.

On motion of Mr. Chénier. it was agreed.—That the
following documents tabled by the Blood Tribe be printed as
appendices to this day’s Minutes of Proceedings and Evidence:

1) Constitution and Bylaws of the Blood Indian Tribe (See
Appendix “SEND-41”)

2) Draft: Consultant’s Report re: Indian Band Government
Legislation. (See Appendix “SEND-42”)

3) Statement to the Sub-committee on Indian Self-Govern-
ment of the House of Commons Standing Committee on
Indian Affairs and Northern Development Prepared by
the Treaty No.7, Projects Office on behalf of the
Leadership and Indian People of the Treaty No. 7,
Sunehild and O’Chiese Bands. (See Appendix “SEND-
43”)

On motion of Mr. Chénier, it was agreed,—That the
following documents tabled by the Blood Tribe be filed as
exhibits with the Clerk of the Committee:

1) Federal Indian Policy and Indian Self-Government in
Canada: An Analysis ofa Current Proposal (Exhibit 00)

2) Some Thoughts on the Canadian Constitution and Indian
Government (Exhibit PF)

3) Indian Governement Undcr Indian Act Legislation, I868»
1951 (Exhibit QQ)

Mr. Wells, Professor Little Bear. Mr. Brave Rock, Mr.
Blood and Mr. Healy answered questions.

At 12:51 o’clock pm., the Committee adjourned until 3:30
o’clock p.m., this afternoon.

AFTERNOON SITTING
(73)

The Special Committee on Indian Self-Government met
«itincamera» at 4:13 o’clock p.m., the Vice-Chairman, Mr.
Schellenberger, presiding.

Members of the Committee present: Messrs. Manly,
Schellenberger and Tousignant.

Liaison member present: From the Native Women’s
Association of Canada: Ms. Sandra Isaac.

In attendance: From the Research Branch of the Library of
Parliament: Mrs. Barbara Reynolds, Research Officer.

Witnesses: From Coopers and Lybrand: Mr. Glenn Ross,
Partner and Mr. Gary Peall, Manager.

The Committee resumed consideration of its Order of
Reference dated Wednesday, December 22, 1982. (See
Minutes of Proceedings. Wednesday. December 22, 1982,
Issue No. 1.)

The Committee resumed consideration of the research
project entitled: “Federal Expenditures and Mechanisms For
Their Transfer To Indians”.

Mr. Ross and Mr. Peall answered questions.

At 5:36 o’clock p.m., the Committee adjourned to the call of
the Chair.

François Prégent

Clerk of the Committee

EVIDENCE
(Recorded by Electronic Apparatus)

Thursday, June 2, 1983

The Vice-Chairman: I will call the meeting to order and
welcome representatives from the Blood Tribe from the
beautiful and warm Province of Alberta to Ottawa. Welcome.
We are very pleased that you arc able to attend today to put
forward two submissions and some baekround material to the
committee on self-government. Mr. Wells, I believe you would
like to begin and perhaps you might introduce those who
accompany you from your band and proceed in whatever way
you feel would be best this morning.

Mr. Wayne Wells (Band Councillor, Blood Tribe): Thank
you, Mr. Schellenberger.

Just before I get into any ofthe presentation I will introduce
the witnesses I have with me. My name is Wayne Wells; I am
a Band Councillor and I am spokesman for Chief Roy Fox this
morning. He was unable to be here with us. There were some
really pressing matters that needed his personal attention at
home today and tomorrow. So he regrets that he is not able to
be here. However, we discussed this paper and he endorses
whatever we present today.

Narcisse Blood is our co-ordinator for the Blood Tribe
constitution as well as the Indian self-government. He is an
employee of the Blood Tribe administration. Leroy Little Bear
is a professor at the University of Lethbridge. He is a member
of the Blood Tribe and we also use his services as a legal
adviser to Indian government as well as the constitution itself.

Mr. Les Healy, Blood Band Councillor, will be presenting
the second portion of the presentation. As well, at the end
hopefully we can discuss a little bit of the Treaty No. 7
presentation that was asked of us to present on their behalf; he
will be presenting that.

Virgil Brave Rock, a band councillor, will be presenting the
last portion on the financial paper. These are the members of
the committee.

The Vice-Chairman: Thank you. I would also like to
introduce those members who are here, to you. We have Mr.
Ray Chénier from the Liberal Party from a riding in Northern
Ontario; Mr. Jim Manly from British Columbia, representing
the NDP Party; Mr. Frank Oberle, Northern British
Columbia, Conservative member of Parliament; and Ms
Roberta Jamieson who represents the Assembly of First
Nations. My name is Stan Shellenberger; I represent a riding
in Central Alberta. Those are the committee members here
this morning to attend the meeting. Now you may proceed
with the brief.

Mr. Wells: Okay. As l mentioned in the introduction, we
will be presenting the first three items. I will be presenting the
first one which is the Blood Tribe Constitution position on
Section 37 (2), Conference, March 15 and 16, 1983. I will
read it through and after completing that, Mr. Les Healy will
be introducing the subject on the jurisdiction for the Blood
Tribe. The number 3 item, Mr. Virgil Brave Rock will be
reading that financial position paper. Number 4 is, I believe,
what we refer to as an exhibit, so we do not need to read
through that. Number 5 will be an attachment to our presenta-
tion.

Okay, before I do go ahead and begin reading the constitu-
tional paper, I would just like to, first of all, thank the
members of the committee for responding to our request that
we had done at the last hearing in Morley. I believe it was
November 29 or 30. However, it was the night before our band
elections, so we were unable at that time to present you with a
position paper. We certainly, as acting chief, thank you for
giving us another opportunity. We do believe these are the type
of formats, that we eventually understand eaehother’s, that at
times that we are not able to make any sort of presentations, it
is for good reason and it is not for any other purpose. Inciden-
tally, one of the reasons was the turnover and I think there was
a turnover of eight people. So there was quite a change. These
are some of the reasons in lndian politics that we do not want
to stick our necks out and say we are going to be back. So,
hopefully, you will understand on that one. So again, thank
you.

Before l begin this, we have been requested by Treaty No. 7
to introduce a position paper on their behalf. We will be going
through our paper first, but if time permits we would like to
request that the committee look at the presentation by Treaty
No. 7 which Mr. Healy will be doing on behalf of Treaty No.
7.

I hope that that is protocol; I hope that we do not upset the
hearing. Is it okay. Mr. Chairman?

The Vice-Chairman: It should be all right. Yes.

Mr. Wells: One of our concerns is from our initial presenta-
tion at the time of the March 37(2) Conference. We went
ahead and indicated a position from the Blood Tribe and we
would like to review it quickly with you people. This is still our
basic position in terms of that Constitutional Conference, and
what we would like to see in any new format regarding Indian-
Canada relations. Incidentally, this was read by Chief Roy Fox
at the steps of the Parliament buildings.

The introduction: this was the Blood Tribe-Canada relation-
ship issue, the BNA Act, Section 91.(24), Indians and Land
Reserved for Indians, The Canada Act 1981, Section 37, The
Aboriginal Rights, the treaties, implementation of treaties,
reserves, treaty money, education and health, interpretation of
Section 35, co-operative federalism, and the Constitutional
framework for the development of Canadian law. So, these are
the items that are discussed in the position paper that we have.

Page number two. The Blood Tribe has always existed as a
nation. From time immemorial we have controlled our lands,
which encompass thousands of square miles. We have con-
trolled our religious, political, economic and cultural destiny.
We are caretakers of this land, not for ourselves, but for our
children and all generations into the future. This is a sacred
trust given to us by the creator. We have a duty to safeguard
this trust against the immediate and perhaps short-sighted
concerns of political factions and parties, and the federal and
provincial governments.

The land is not ours to exploit. Our rights are not ours to
negotiate and limit. They are for future generations and must
be intact for them. Our forebearers signed Treaty No. 7
understanding that we would share the land in return for
certain additional rights. The land was not to be alienated
from the Blood people.

The government of the nation of Canada, including provin-
cial governments, may not affect these rights of the Bloods.
We are attending this conference to state our position to the
Government of Canada. We do not recognize the capacity of
this conference, or those who attend it. to negotiate, define, or
limit our rights without our direct input and consent.

We do not recognize the competence of the representatives
of the provincial governments to participate in any conference
concerning our rights.

Even the drafters ofthe BNA Act intentionally excluded the
provincial governments from dealing with us. It is recognized
that they held vested interests which could have been contrary
to our rights and best interests.

This is still the case today. Any discussion with the central
government concerning the identification and definition of our
rights cannot be completed in two days. Such a serious matter
requires a serious commitment from both parties, the Bloods
and the central government.

It requires an on-going process with United Nations
supervision during which it is expected that the central
government will become more familiar with our history and
philosophy. Only when you truly understand us as people can
there be some meaningful communication.

The difference in your interpretation and our interpretation
of Treaty No. 7 represents the type of unhappy misunderstand-
ing we have experienced up to the present.

A full and meaningful participation on our part is a requisite
to any identification of our rights.

Our consent is necessary for any legislative or constitutional
enactments respecting our rights. Any unilateral action by the
government of Canada would be considered invalid by the
Blood people.

The Government of Canada has a dismal record with
respect to dealing in good faith with aboriginal people. We are
aware of the failure of the NIB Joint Committee. We remem-
her the attempt at legislative assimilation in the white paper of
1969. Recent leaks revealing the strategy of embroiling native
people and provincial premiers during this conference do not
increase our confidence in their good faith. Other examples are
too numerous to mention.

Such tactics must stop or our dealing with each other will
not be mutually satisfactory. You are now inheriting the
legacy of earlier governments’ deception of indigenous people.
Do you want to perpetuate this for your successors?

Any current legislation proposal directly affecting the future
status of our rights must be suspended until those rights are
entrenched in the constitution. Government policies, opera-
tional plans, legal opinions, conditions to contributing agree-
ments and similar administrative actions must be suspended
until the yet-to-be-decided ongoing process renders a mutual
agreement on entrenchment of our rights.

The Blood people must retain all services and programs
while this process continues. Anything less amounts to
economic blackmail.

The Blood people have a unique history. From these
circumstances comes our present reality. We have plans for
our future. We will evolve in our way, in our own time, and
according to needs identified by us. We reject any attempt to
categorize us with our aboriginal groups. They also have their
own unique history and future, and it would be inappropriate
to consider us as all the same.

Perhaps the semantic confusion resulting from the label
“lndian” has confused to Canadian government. Be assured
that we are not all the same people. We are here to represent
our position. and to establish the mechanism and meetings
with you necessary for an ongoing process.

Non-lndians in Canada are responsible for the actions of
their forebears, because they are living as they do as a result of
actions taken by previous governments. The Bloods are also in
their present situation because of these earlier government
actions. This historic opportunity to fairly resolve our constitu-
tional issues offers you a chance to repair past wrongs and to
set the stage for future peaceful friendly relations between our
two peoples.

The world is watching Canada’s action in this matter. Long
a protector of rights on the international scene, Canada has yet
to clean up her backyard. Such a situation causes other nations
to doubt your sincerity.

To deal with us other than in good faith only means more
injustice, racial resentment and continuing problems for
generations to come.

The Blood Tribe—Canada relationship issues: The Blood
Tribe hereby affirms the declaration of the First Nations. The
Blood Tribe has always been a distinct people and hereby
affirms its right and responsibility to remain a distinct people.
As a distinct people the Blood Tribe has inherent powers and
responsibilities which it continues to maintain. The Blood
Tribe has had a special relationship with Canada for 106
years. During these years a number of problems have devel-
oped with regard to this special relationship.

In view of the fact that Canada is going through constitu-
tional reform, the Blood Tribe takes the position that it is an
excellent opportunity for the Blood Tribe in Canada to
mutually resolve problems that affect an otherwise good
relationship. Accordingly the Blood Tribe hereby puts forth its
position on a number of problem areas which affects its
relationship with Canada:

1. The BNA Act, Section 91.(24)—Indians and Lands
Reserved for Indians.

The Blood Tribe takes the position that Section 91.(24) does
not give dictatorial powers to Canada over Indians and lands
reserved for Indians.

The fact that Indians and lands reserved for Indians falls
under federal jurisdiction simply means that the federal
government, and not the provincial governments can enter into
any relationship with Indians in the same sense that external
affairs falls under the federal and not provincial jurisdiction.

The Blood Tribe finds it hard to reconcile Section 91.(24)
and the involvement of the provinces in constitutional discus-
sions between the Indian peoples and Canada. The Blood Tribe
interprets the involvement of the provinces as advisory to the
federal government and not as governments acting in their own
right.

2. Canada Act, 1981, Section 37.

It is the position of the Blood Tribe that Section 37
addresses two separate matters: (a) identification of rights and
(b) the definition of rights identified. It is the position of the
Blood Tribe that two of the rights of the Indian peoples have
already been identified by Section 35 of the Canada Act, 1981,
namely existing aboriginal and treaty rights. The application
of Section 37 to Section 35 requires only definition of existing
aboriginal and treaty rights and consequently, other rights
may be brought forth for discussion.

3. Aboriginal rights.

It is the position of the Blood Tribe that aboriginal rights
mean mutual recognition and mutual respect between two
peoples with regard to their land, culture and the relationship
between the land and the culture. Land includes the total
environment, what is above and below the land; animal and
plant life, air and water. Culture includes language and
philosophy, religion, economic, social and political and
governmental systems, and social values.

It is the position of the Blood Tribe that its aboriginal rights
have always existed. They have never been surrendered or
alienated though they may have been modified to a very
limited extent by treaty. The words “existing aboriginal
rights” in Section 35 confirms that Canada takes the same
position.

4. Treaties.

It is the position of the Blood Tribe that treaties are solemn
agreements between two distinct peoples. Canadian-Indian
treaties are agreements between Canada’s people and the
Indian people. Canadian-Indian treaties are agreements with
regard to land only, and not with regard to culture nor with
regard to relationship between the land and the culture.
Treaties are not surrenders of aboriginal rights. Treaties are
modifications of the Indians’ exclusive right to aboriginal
territories, but only to the extent of the Indians’ agreement to
share their land. Treaties are not real estate sales agreements.
The quid pro qua for the Indians’ agreements to share their
lands with Canada’s people is an agreement on the part of
Canada that the Indians can reserve to themselves, areas of
land for their exclusive use—reserves—to provide economic
assistance to the Indians, which is the treaty money, to provide
free education and free health care. Further Canada agreed
that the Indians can continue to hunt, fish, trap and harvest
plants as they are required by the Indians.

The above do not include all of the treaty promises made by
Canada but represent the most important ones.

5. The implementation of treaties.

It is the position of the Blood Tribe that they have fulfilled
their part of the treaty agreement with Canada, namely to
share their land subject to a reservation. However, Canada has
a dismal record in carrying out its part of the agreement.
Canada puts a very limited and restricted interpretation on its
part of the agreement, which is a cause for some of the
strained relationship between the Indian peoples and Canada.

It is the position of the Blood Tribe that treaties, whether
categorized as legal or not, are nevertheless binding on both
parties.

Insofar as the major promises by Canada, it is the position
of the Blood Tribe regarding:

(a) Reserves.

Reserves are the property of the particular tribe involved.
The Indians did the reserving and not Canada. The establish-
ment of a reserve is not quid pro quo for the shared interest in
the land covered by the treaty outside of the reserve. The
Indians continue to have an interest in the lands outside their
particular reserves.

(b) Treaty money.

It is the position of the Blood Tribe that treaty money is
symbolic of Canada’s agreement to economically assist Indian
tribes. The amount and the value of assistance is to be
interpreted in a relative sense in accordance with times and
needs.

(c) Education and health.

It is the position of the Blood Tribe that free education and
health were promises without strings attached.

(d) Hunting, fishing, trapping and gathering.

Restrictions put on the above treaty through case law,
statutory law and regulations are not in keeping with the spirit
of the treaties and such restrictions lifted.

Interpretation of Section 35.

It is the position of the Blood Tribe that since Section 35
does not state that “existing aboriginal and treaty rights are
hereby recognized and affirmed, subject to the existing case
law, statutory law and regulations”, that all that body of law
that has in the past restricted aboriginal and treaty rights is no
longer applicable and that a new body of law will be developed
pursuant to mutual agreement.

Definition of “Indian”.

The Blood Tribe maintains its inherent power to determine
who will become a member of the tribe. The Blood Tribe
cannot continue to tolerate the invasion by Canada into this
area of Blood Tribe governmental responsibility. Only Indian
nations can determine their own citizenship.

Co-operative Federalism.

The tribe recognizes that Canada approaches federalism on
a co-operative basis, i.e., even though they, the federal
government, have specified the powers and responsibilities as
separate and apart from the provincial governments, neverthe-
less the two levels of government interlock their powers and
responsibilities.

Co-operative federalism in theory seems a desirable and
workable proposition; however, in fact, it causes a lot of
jurisdictional problems. The Indians of Canada have been
caught in this jurisdictional milieu caused by co-operative
federalism. In many instances the Indians and lands reserved
for Indians have in effect been pawns in trade-offs between
federal and provincial governments. It is the position of the
Blood Tribe that co-operative federalism abrogates the intent
and spirit of the BNA Act and, more specifically, Section
91.(24) and that such abrogation cannot continue without our
consent.

Constitutional Framework for the Development of Canadian
Law.

The Blood Tribe finds it difficult to reconcile the whole
concept of a constitution with the traditional notion of
parliamentary supremacy. In fact, Canada misleads its people
by making them believe they have a constitutional form of
government when, in effect, one cannot talk about a constitu-
tion as long as parliamentary supremacy remains as an
operational concept of government.

A lack of constitutional framework results in a melting-pot
approach to law-making in which there is no effective distinc-
tion between what is constitutional and what is statutory law
and what is a regulatory scheme: All these three types of laws
are given equal weight and effect. It results in regulations, for
instance, overriding constitutional rights.

The Blood Tribe would like to offer advice to the Govern-
ment of Canada that it either adopt a constitutional form of
government or maintain parliamentary supremacy. If the
former is adopted by Canada, a constitutional framework
within which Canadian law can develop is a definite requisite.

If Canada is going to maintain parliamentary supremacy as
its approach to government, then constitutional discussions and
activities are a futile exercise.

Mr. Chairman. this ends the position that we submitted on
Section 37 to the conference and now I would like to call on
Les Healy to read the financial position paper, from this
position that we stated at the time to what we have been
developing towards this sub-committee hearing.

The Vice-Chairman: Mr. Healy.

Mr. Leslie Healy (Band Councillor, Blood Tribe): Thank
you, Mr. Chairman.

Jurisdiction: What the Blood Tribe Wants.

New Indian legislation has been a goal for Indians and the
federal government for a number of years. Both Indians and
government agree that the present Indian Act is too restrictive
and does not meet the needs of either party. Amending,
repealing or changing the present Indian Act and the need for
policy reform are not at issue.

What is at issue is changing the relationship that presently
exists between the Indians and Canada. More specifically what
is at issue is who comes up with the proposals, who gets to
expend moneys allocated for the purpose, and whose needs are
being addressed. The federal government has, in the past,
drafted papers outlining proposals for new but optional Indian
legislation.

The object of the proposals have been to enable local Indian
governments at the band level, to become responsible for the
social, economic, political and cultural development of their
own Indian communities. However, Indians have more or less
consistently opposed new Indian legislation because the federal
government: (1), fails to address Indian concerns; (2), simply
proposes new but not very different administrative schemes,
rather than substantive law changes; and (3), does not have the
best interests of the Indians as a basis for legal and policy
reform. Consequently, it cannot be trusted.

Concerning the mistrust Indians have of the federal
government, a good example is the leakage of proposed
amendments to the membership section of the Indian Act. In
spite of promises to consult with Indian leaders, the Depart-
ment of Indian Affairs and Northern Development, all along,
had its own proposals in its back pocket. which it promptly
tabled at an opportune time, bypassing consultation with
Indians, including its own Indian advisers.

The hilarious Dennis Marantz memorandum outlining a
strategy of embroiling Native people and provincial premiers
during the recent constitutional convention, is yet another
example which adds to the mistrust Indians have of the
government.

The federal government, if it hopes to receive co-operation
from the Indian people, must address directly those concerns
that Indians have harped about for years. If it does not, this
present exercise will be just another in a long list of useless
exercises resulting in political frustration.

Sovereignty and jurisdiction.

Sovereignty is a legal concept of western European interna-
tional law. It defines the political legal existence of a nation
state. Sovereignty can also be defined as that fundamental
authority of any nation state to which none other is superior or
equal. Whatever the political definitions the various Indian
tribes and nations had applied to themselves before the arrival
of the European colonizers, the relationship established
between the Indian tribes and the Europeans, a relationship
that was characterized by treaties, was based on the concept of
sovereignty.

The concept of sovereignty has always been the starting
point for Indians in any discussions or decisions with respect to
them and the jurisdiction they possess over people and
property. Indians exercised their sovereign powers when they
entered into treaties. Sovereignty of a society remains so long
as the society is functional and remains distinct. It becomes no
less sovereign because some other entity refused to recognize
it.

One of the problems that has plagued Indian governments,
and has been a point of contention, is jurisdiction by a tribe
over their own people and lands. Jurisdiction is the legal power
which a government has to rule or govern its people and
territory. Generally, jurisdiction includes three powers of
government: legislative. the power to make laws, to pass or
enact ordinances or rules; executive, the power to enforce the
laws, to make people obey the laws by using police persuasion
or some other method; and judicial, the power to make legal
decisions when there is disagreement, to decide cases such as in
a tribal court or at a council meeting when there is some
dispute or disagreement about the law.

Jurisdictional problems arise when two or more governments
apply, or attempt to apply their laws to the same people
and/or territory.

In addition to Indian governments, provincial and federal
governments claim certain powers over Indians and Indian
land, All three governments apply or try to apply their laws.
The attempt by different levels of government to apply their
laws to Indians causes a lot of jurisdictional and conflict-of-
law problems. This would not be the case if only one level of
government had exclusive jurisdiction. However, before a case
is made for giving Indian tribes exclusive jurisdiction over
their own people and territory it would be in order to examine
the past and present jurisdiction of the federal and provincial
governments, so that this committee will have some apprecia-
tion of the problems caused by overlapping jurisdiction.

Federal and Provincial Jurisdiction . . . Past and Present.

It is somewhat misleading to think in terms of past and
present legal regimes with regard to Indian jurisdiction
because Canada. and Britain before it, has always had the
same policy towards Indians. This policy is based on theories
of sovereignty which broke all rules of European logic, but
which nevertheless existed as a fact and sufficed as justifica-
tion for Britain and other European powers to lay claim to the
Americas in spite of the prior occupation by the Indians. These
theories include the “Doctrine of Discovery”. “the Crown
always having had the underlying title”, and numerous other
but more specious theories to the effect of Indians being
savages and paganistic. Based upon its own land- acquiring
concepts, Britain unilaterally claimed Indians as British
subjects and consequent jurisdiction over them and their land.
For instance, in the Royal Proclamation of October 7, 1763, it
is stated:

And whereas it is just and reasonable, and essential to our
Interest. and the security of our Colonies, that the several
Nations or Tribes of Indians with whom We are cormecled,
and who live under our Protection . . . ”

The emphas is ours. This statement is a good example of the
unilateral and paternalistic approach to relationships with
Indians. Canada, subsequent to Britain, has continued the
same policy toward Indians to the present day.

Indian Jurisdiction—Past and Present

Indians, prior to the appearance of the white man on the
shores of North America, were independent and sovereign
people. Indian governments, more or less, had complete
authority to rule within their aboriginal territories. Most
Indian governments originally had more or less complete
authority to rule within their own territory, but most did not
have any power or jurisdiction to rule outside their territory.
Some governments have received religious jurisdiction, that is.
legal power in religious matters. Others gave no such jurisdic-
tion.

But the inherent jurisdiction or power rightfully held by an
Indian government is often forgotten or ignored. Very often
Indian governments do not exercise or use the full jurisdiction
or governmental powers they have. As often happens, Indian
governments are prevented or discouraged from exercising
their legal jurisdiction. In some cases particular Indian nations
have intentionally given up part of their jurisdiction in treaty
agreements. However, many treaties which appear to surren-
der Indian jurisdiction were actually fraudulent and not truly
understood or agreed to by the Indians involved.

Likewise, it has often happened that the provincial or
federal government simply ignores, or tries to take away or
override Indian jurisdiction, and put provincial or federal
jurisdiction in its place.

Looking at the history of how Indian jurisdiction has been
worn away or forgotten, and trying to understand which
government, Indian, federal, or provincial has what jurisdic-
tion or power can be confusing. A great deal depends upon
whether one begins from the point of view of Indian law, or
whether one looks primarily at provincial or federal law. As
mentioned earlier, Indian traditional law usually gives
complete jurisdiction to the Indian government to rule Indian
territory, to manage Indian national affairs, to settle disputes
and so on, all without outside interference. On the other hand,
if you go by Canadian law, actual Indian jurisdiction is much
less than the inherent. sovereign jurisdiction which each nation
has or had under its own law.

Of course, each Indian nation must be looked at individually
in light of its own history and law. Since the beginning of
Indian-White relations, the jurisdiction of Indian governments
has steadily dwindled.

The jurisdiction that Indian governments enjoy today is a
mere pittance of what it used to be. For an historical view of
how Indian jurisdiction has been worn away, the Bloods would
refer the committee, to this document, which gives a good
account of how Indian governments have fared under
Canadian Indian legislation during the period 1868 to 1951.

At this point in time may I refer you. the committee, to this
particular document: Indian Government under Indian Act
Legislation, 1868-1951 I am submitting this to you as an
exhibit.

The mere pittance of jurisdiction that present Indian
governments have is realizable usually through band council
powers laid out in the Indian Act. The very limited jurisdiction
that Indian governments have is, however, exercised not
without frustration, because the powers that band councils
have are not exclusive, but subject to federal legislative powers
and, in some cases, provincial laws.

Probably the most frustrating aspect of the exercise of band
council powers is the lack of enforcement capability of Indian
hands. This lack of capability almost renders useless the
powers granted to band councils. It is one thing to have
legislative power, but quite another to be able to enforce
legislation. It is worse than useless to pass grants of power that
cannot be enforced. Frustration with enforcement will continue
to plague band councils if new legislation does not effectively
provide for enforcement—Indian police—and a justice system,
—tribal courts. Viewing the federal governments policy over
the past one hundred years, one can readily see that proposals
for optional Indian legislation cannot be considered as a
radical departure, but instead can be viewed as a continuation
of the same old policy, namely, addressing administrative
concerns of the Department of Indian Affairs rather than
substantive issues such asjurisdiction.

Why the Blood Tribe wants something different.

Historically, Indians had complete domain and jurisdiction
over lands in North America. Contrary to all the legal fictions
that have been forwarded as justifications for taking away
lands from the Indians.

Indians have never given up the lands nor their sovereignty.
Indians may have agreed to share their lands, but sharing is
quite different from alienating their interest in the land.
Indians, consequently, would like to straighten the record, lest
the basis of the relationship they have with Canada will
continue to be based on legal fiction.

Constitutionally, the Blood Tribe believes that special
mention of Indians in the British North America Act and the
fact that treaties were signed with them is proof of their
sovereign and separate status. Section 91 (24) of the British
North America Act is interpreted by the Blood Tribe to mean
simply a division of powers between the federal and provincial
governments; that between the two levels of government, the
federal government will be the level of government to enter
into relationships with Indians. The Blood Tribe does not agree
with the government interpretation of Section 91.(24) that it is
a dictatorial power over Indians. The Blood Tribe would like to
have their interpretation of Section 91.(24) given equal
strength and effect. What does the Blood Tribe want?

The Blood Tribe wants to have their internal sovereignty
restored and to have a territorial base sufficient to meet their
own needs. We want to have the right to determine our own
form of government. We want access to and control over
sufficient fiscal resources to enable us to socially, economi-
cally, culturally and politically develop our own communities.
Indians, somehow, are left out when it comes to benefits from
the land they once wholly owned.

In some cases it may be argued that Indians surrendered
their rights to land and therefore, the right to benefit from it,
when they signed the treaties. But it is time we got away from
hogwash arguments that might have held water way back
when, but we know better today. From an Indian standpoint,
Indian treaties. in the simplest of terms, were not surrenders of
land, but are agreements to share the land. Sharing in no way
implies exclusion from benefit. Both the federal and provincial
governments are the beneficiaries of billions and billions of
dollars worth of natural resources, none of which is ever
realised by Indians.

Consequently, to make up for this lack of benefit from the
land, Indians have for many years attempted to get their fair
share of this counlry’s riches by asking for secure funding,
whether it be through equalization formula funding or some
other arrangement to act as the quid pro quo for sharing their
lands. But more specifically, and more from a jurisdictional
perspective, we want an exclusive set of substantive powers
that other governments have and exercise, for instance, as
follows:

—Immunity from suit, but not when engaging in a proprietary
activity

—Adverse possession not to be applicable to an Indian
government

—Latches not to be applicable to an Indian government

—Statutes of limitations not to be applicable to Indian
governments.

—The right to enter into contracts

—FiscaI powers

—Power to expropriate

—Power to levy and collect taxes

—Power to create corporations with Indian objects

—Power to establish police forces and tribal courts

—Power to determine membership

—Power over domestic relations

—Power to determine custody and appoint guardians

—Power to regulate hunting, fishing, trapping, and collecting

—Power to create interests in land.

—Power to regulate land use

—Power to dispose of tribal property

—Power to license businesses

—Power to enact building codes

—Power to enact environmental protection laws

The above should not be taken as a complete list, but instead
as an example of substantive powers we would like to have for
our own government. We believe that ifgiven an exclusive list
of powers, it will go a long way to eliminating the present
jurisdictional mess over Indians and lands reserved for Indians.

Conclusion.

New Indian legislation is a goal for both Indians and the
federal government, but that is where the mutuality stops. The
federal government is in the process of tabling new optional
Indian legislation but Indians are already gathering their
forces to oppose the new legislation. Indians oppose new
legislation because they feel that their concerns are not being
addressed in any substantive manner. Indians would like to re-
examine the basis of the relationship that exists between them
and Canada, while the government simply addresses adminis-
trative convenience. The Blood Tribe would like to clear up the
jurisdictional mess caused by overlapping jurisdiction between
three levels of government by suggesting that we be given
exclusive jurisdiction over our own people, lands and resources.
The Blood Tribe truly feels that we have legitimate historical,
constitutional, cultural and philosophical reasons for these
demands, and that these demands are reasonable.

What does government have to do to make new proposed
legislation meaningful to Indians? The federal government, if
it hopes to receive Indian support, will have to, once and for
all, initiate meaningful discussions on those concerns that
Indians keep harping about, namely aboriginal rights, Royal
Proclamation rights, treaty rights, land claims, trust relation-
ship, Jay treaty rights, and exclusive jurisdiction for Indian
governments. The federal government will have to get away
from the seeming clandestine approach—secret documents—
to legislative changes, and operate on an open and above-board
basis with Indians. The government will have to address
substantive issues rather than just administrative changes.
Last but not least, the government will have to provide
sufficient fiscal resources to enable Indian tribes to meet goals
that they themselves have set.

If the government does not meet any of the above recom-
mendations then it will be the “same old story”. Meanwhile,
Indian nationalism and separatism will continue to be fostered
by existing government laws and policies.

Finally, when all is said, when all the dust has settled, what
will be the result of these hearings? The Blood Tribe position
is that any resulting new legislation should be no less than a
form of government instituted by Indians, for instance, as
proposed by the attached Blood Tribe constitution.

Here is the attached Constitution and By-Laws of the Blood
Indian Tribe, which is an appendix for the committee.

Mr. Wells: Thank you, Les.

Incidentally, just before I go on to have Mr. Brave Rock
read the last portion, what we just tabled as an appendix is,
just a word of caution, not a result of this proposed Indian
government legislation of providing tribe constitution. This has
been in the works for quite a number of years. So I would just
like to have that recorded as such.

Virgil, I wonder if you could read the last… This will be
the last portion of our reading of the material. I am sure you
will be asking us questions after that. Virgil.

Virgil Brave Rock (Councillor, Blood Tribe Chief and
Council): Thank you Waynct Mr. Chairman. This last portion
is a financial paper.

When the “Contribution to Bands” circular was introduced
by Indian Affairs in 1969, the procedures for transfer of
programs of tribal governments was relatively simple and
straightforward. Budget allocations were adequate with the
greater portion of funding provided from appropriated money,
and release of funds were governed by the financial require-
ments to operate the programs.

Over the years this type of arrangement and assistance has
changed dramatically and the system is now controlled by
rigid regulations and guidelines that complicate negotiations
and slow down the process. Delays encountered in many
instances has created financial problems for the band, to the
extent that it has been a source of embarrassment and a loss of
Credibility of the staff.

The following comments are directed to some of the critical
areas of concern.

Policy.

Many policies adversely affecting budgetary allocations and
procedures for processing financial applications have been
implemented by regional and Ottawa departmental staff
without consultation or negotiations with tribal governments.
For example:

(a) categorization of Alberta bands into three groups for the
purpose of determining amount of contribution allocation
(regional office);

(b) implementation of the 1980 directional plan (Ottawa
office);

(c) Treasury Board approval required where a tribe’s total
program agreement exceeds $4 million (Ottawa office).

This type of action by the department is detrimental to the
development of tribal governments, as policies should only be
implemented after due consultation and negotiations have
taken place with chiefs and councils.

Planning.

Regional office financial staff prepare the annual financial
resource plans (program forecasts) required by Treasury
Board to substantiate the total regional budget. Here again
this very important document, which contains all the input for
justification of contribution funds to every Alberta band, is
prepared in isolation without the very important input from
them. The financial staff do not have sufficient knowledge to
determine band requirements or set their priorities. In
addition, when funds are allocated they are not necessarily
used for the same purpose they were justified for. Again, it is
essential that negotiations take place with tribal governments
and the department to ensure funding is based on their
programs. Band master plans should be used for physical back-
up information.

Signing authorities.

The department has continued to centralize their organiza-
tion, creating in the process many rubber stampers and post
offices, where documents have to be processed prior to
submission to a final authority with sufficient powers under
Section 16 of the Financial Administration Act to sign, In
most instances. the checkers do not have sufficient background
information on the subject to make a valid recommendation so
they attack the submission in isolation and request more and
more substantiation from the originator. A splendid example is
the IEDF—Indian Economic Development Farm—loan-
guarantee application for a line of credit with the Bank of
Nova Scotia, which was submitted to the department for
renewal in July 1962, and to date has not been finalized. This
guarantee has been in place for twelve years and provides the
cashflow required to operate Kainai Industries. This applica-
tion has been delayed by one Ottawa individual for eleven
months without valid justification, after being approved by
every other level prior to reaching his office.

Recommend delegations to lower levels to or provide a more
direct route to authority. A change in delivery system will be
appropriate.

Band capital funds.

Controls and inconsistent directions imposed by regional
reserves and trusts has delayed many B.C.R.s, Band Council
resolutions, requesting capital for band projects. Rejections in
some cases resulted from administrative technicalities.

Recommend that the system be altered to provide a service
instead of trying to revert to a paternalistic control.

Program agreements.

We are one of the tribes in Canada who have to submit our
agreements to Treasury Board for approval as the total
amount exceeds $4 million. This is due to the Social Services
non-discretionary program being included with the discretion-
ary programs. Social Services is not a transferable program as
the tribe administers this service for the department. in view of
this it should not be calculated in the total for contributions.

Block Funding.

Under the present system funds are allocated to one
particular program and cannot be shifted to any other
program. This does not allow the flexibility to offset deficits
with surpluses or to meet changes in priorities which occur
throughout the year.

Allocations.

In the initial stages of transfer of programs, the bulk of the
funding was allocated from departmental sources. This mix
gradually changed to a point where the tribe is absorbing the
larger portion of cost. For example, when the Road Authority
was established in 1976, the department funded 57% of the
budget. In 1982-1983 this amount was reduced to 14%.

Recommend that a complete review of contributions to
bands be examined.

In summary, if the changes recommended above were
implemented, the operation of transferred programs by tribal
governments would become more effective and efficient.

That ends that portion of the financial report, Mr. Chair-
man.

Mr. Wells: Mr. Chairman, I would just like to quickly refer
to the IEDF loan guarantees, The reason for it is that we
might have overlooked. in terms of our presentation, the whole
notion of conflicting legislation that we got ourselves into while
operating an industry of that nature. Just a quick review.

I think most of you might have heard of Kainai Industries,
which is in modular home building. At the time of its incep-
tion, we were asked to form a legal entity in terms of a limited
company, which we did. At the time, we were in a partnership
with an outside firm, and when the outside firm was bought
out by a bigger company, the bigger company itself was only
interested in its balance sheet. At the same time, the modular
home building was probably ahead of its time, so the sales and
the market for it were not what we had hoped or projected.

I guess what I am trying to say is that at that time we did
require the assistance of the department. There was DREE
money put into it to get it off the ground. When the partner,
an American company, pulled out because of the fact that we
were not able to sell the product, the band itself, in order to
continue the employment that we still have maintained the last
13 years through that industry, we have injected capital into it
to keep it operating for the sake of employment.

I guess the real concern is this. When we took over as sole
owners of the industry, we developed this line of credit that the
department guaranteed on our behalf. The real problem is this.
When we were on our own, and thinking that we were a legal
entity in terms of operating under a limited company, we were
unable to get performance bonds, in which case we were not
able to bid on large projects. So this is what we are saying: on
the one hand we inject money into it and on the other hand
legislation hinders us from being able to expand and make a
profitable organization. This leads us back to this $500,000. It
was always a line of credit of $1 million for the last 13 years.
The government has never had to pay off on our behalf,
although there have been several times, because of the market
going up and down…

Then, all ofa sudden, and I can see some of the rationale in
terms of saying well, we have been in operation for 13 years.
You should not require all of the $1 million line of credit. You
should have been able to establish yourself by now.

But I guess, referring back to the legislation, performance
bonds cannot be—because of the industry being on the reserve,
we were never able to be competitive, in that sense. That is one
of the reasons for us maintaining this $1 million line of credit.
We just were never given the opportunity like anybody else,
even though we formed a legal entity in terms of corporate
bodies.

So I thought we would like to have this on record: the
reasons. And I suppose everybody is talking about economic
development, so we are more anxious to share these types of
problems with the committee. ljust thought I would explain it
a little further.

So with this, Mr, Chairman, I believe we do not need to read
the last portion, which we indicated would be an appendix to
our presentation; and again, as I mentioned earlier, the
constitution and bylaws of the Indian tribes.

Leroy Little Bear (Legal Adviser, Blood Tribe): Yes.

Mr. Wells: We have been working at this for close to 12
years. trying to establish some sort of continuity in terms of
Indian governments. So it is not necessarily because of the fact
of this new Indian legislation that is being proposed. But again,
as you can see in our presentation, any time we start talking
about tribal constitution per se, we are certainly hindered by
these pretty narrow guidelines that we have had to try to
establish. So it seems to us now. with our positions, what we
are saying is supposing you came back to us and said, okay,
you want sovereignty, how are you going to do it; well, what
we are saying is we have something we want to build on,
instead of using this old attitude: give it to us and get out and
it is our own business. So we would like to deal in this manner
with any governments that we have any type of relationship
with.

With this. Mr. Chairman, I would like to table this presen-
tation, with its appendix. I guess we will be answering
questions from now on.

The Vice-Chairman: Thank you very much, Mr. Wells.

We will require some motions from committee members to
add to the record today as an appendix “Constitution and
Bylaws of the Blood Indian Tribe”. the consultants report re
Indian band government legislation. and the statement to the
subcommittee on Indian self-government regarding the Treaty
No. 7 projects office on behalf of the leadership and Indian
people of Treaty No. 7, Sunehild and O’Chiese Bands.

Mr. Chénier: I move that these documents be appended to
the record of today’s proceedings.

Motion agreed to.

The Vice-Chairman: We then have three exhibits which will
be identified in the record today. They are “Federal Indian
Policy and Indian Self-Government in Canada; An Analysis of
a Current Proposal”, by Mr. Long, Mr. Little Bear, and Mr.
Bolt; “Some Thoughts on the Canadian Constitution and
Indian Government”; and “Indian Government under Indian
Act Legislation. 1868 to 1951”.

Thank you very much for the presentations. Would you now
be prepared to accept some questions from committee
members?

Mr. Wells: Yes, Mr. Chairman. And I guess when we come
down to legal terms. we have Mr. Little Bear and our eo-
ordinator, Narcisse Blood, who could answer for us as well, if
it is all right with you. Mr. Chairman.

The Vice-Chairman: That is fine.
Mr. Oberle, you have to leave in a few minutes.

Mr. Oberlez Thank you, Mr. Chairman. Maybe we could
begin by getting a little better a profile of your band. Unfortu-
nately, I did not see—normally we get some briefing papers,
and they give us a demographic profile. We did not get any
this morning. Maybe we could have you give us a little bit of
an idea—what is the membership of your band?

Mr. Wells: I am sorry, Mr. Chairman. for not . . .

Mr. Oberle: That is quite okay.

Mr. Wells: The Blood Reserve has 547 square miles and the
surrounding towns would be Lethbridge, Fort MaeLeod,
Magrath, Cardston and a few hamlets such as Hill Spring.
The population is about 5,900—it is crowding 6,000. The
agricultural area, I believe, is about 300,000 acres. We have a
hamlet. Standoff is our headquarters, the government head»
quarters, and there is a town site right next to it. About l,500
people live there; there are I19 homes in the town site with a
kind of industry, which was why Standoff was selected as the
future town of the Blood Reserve. The industry itself supports,
at its peak, about I00 to I50 employees, at its low point, about
50 to 70. That is our prime industry. It is the kind of
industry . . .

Mr. Oberle: What kind of industry is it?
Mr. Wells: It is a kind of modular home industry.
Mr. Oberle: Oh, yes.

Mr. Wells: The balance of it is in cattle operations. We have
our own bus co-op operation. It is a co-operative that operates,
I believe, 45 buses on the route.

There are three schools, one Indian high school and three
elementary schools. These are in the Leavitt area, to the
southwest of the reserve, and Standoff has an elementary
school and St. Mary’s. It used to be the old Catholic school,
but it is now the Blood Reserve high school.

There are about 500 miles of road. Most of it is gravel,
which causes quite a headache in terms of trying to maintain
those roads for the buses as well. When we refer to the
jurisdictional problems, this is one of them, where we do not
have the funding to maintain our roads to the satisfaction of
the highways department at times.

We have a feedlot, which is one of these economic develop-
ment operations. The Blood Band ranch, I believe, operates a
1,000 to 1,200 head cow«calf operation, which is a band
enterprise. The feedlot itself can operate, I believe, with 2,000
to 3,000 head. We have a potato farm that it is still in its
infancy, however we have been able to sustain a market for it,
which provides employment.

In the Indian agricultural… in what we refer to as the big
lease, this is all leased out on a share basis, which is used as
revenue for the band.

Mr. Oberle: The 547 square miles…is that all reserve
land?

Mr. Wells: Yes.

Mr. Oberle: Do you have any additional land leased?

Mr. Little Bear: In addition, ifl may mention it , first of all
there is about a six square mile area just outside of the
Waterton Lakes National Park that is also part of the reserve
and is mainly used for timber purposes, for the logging needs,
etc., of the tribe.

Mr. Oberle: Do you have 300,000 acres under cultivation?

Mr. Wells: Close to it—some individually claimed, but in
total I think that is right. Yes.

Mr. Oberle: That is a lot of land. Is it mostly grassland?

Mr. Brave Rock: I do not know if you can call it grassland.
A lot of it is under cultivation right now by the farmers. That
is why we have these IEDF loans for northern native farmers
who plan to go into. and are going into, their own farming.

Mr. Oberle: In the ranching operation operated by the band,
are there any loeatees, so to speak, any individual holdings,
except leases? Do the individual band members have their own
operation, or is it all a band-operated enterprise?

Mr. Wells: The majority is privately owned, either individu-
ally owned operations of farms or some of it is leased as part of
an individual operation. The band itself I think operates close
to 7,000 to 8,000 acres, which is what we refer to as hand
enterprise. The rest of it is privately operated.

Mr. Oberle: l see. So they are mostly leased to white people
who are farmers?
Mr. Wells: Quite a bit of it, yes.

Mr. Oberle: I see, yes. The lease income, would that be the
main source of your income?

Mr. Wells: Yes, it would be.

Mr. Oberle: What term of leases do you usually enter into?
How long?

Mr. Wells: They are mostly live-year leases.
Mr. Oberle: Five-year leases and then they are renewed. Do

you think you get a good rate of return? Who negotiates the
leases? You do that yourself, I guess.

Mr. Wells: We do the footwork but the eventual lease is
between the Crown and the lessee, because of the fact that it is
a . . .

Mr. Oberle: And you think you get a good rate of return in
comparison?

Mr. Wells: l think we do.

Mr. Oberle: And they are negotiated every five years.

Mr. Wells: That is right.

Mr. Oberle: Do you have any scheme where you would take
a share or a gross revenue or anything like that?

Mr. Wells: Most of the lease arrangements are operated on
what we refer to as so much an acre as a rental payment and in
some cases it is a third share, and then there are others. And it
depends on the area of the reserve as well. There are areas
where to try to be beneficial to both parties, slightly different
financial arrangements are allowed, such as cash rentals.

Mr. Oberle: You have a large land base, and one would
assume that you would be one of the bands, one of the areas,
that should proceed with your own form of self-government;
you should not be economically dependent and therefore
politically dependent on the Department of lndian Affairs.
You are saying that you still have a large welfare roll. Why
would that be if you have that kind of an economic base?
What is your unemployment rate on the reserve?

Mr. Wells: lt ranges anywhere from 60% to 80%.

Mr. Oberle: What is wrong? Why are the people not
working in the enterprises on the reserve?

Mr. Wells: I guess basically because agriculture requires a
very heavy capital input in terms of operating with very
limited employment opportunities. If we went out to these
farms, two people will run two sections or three sections and
yet they will require $400,000 worth of equipment. That is
probably the same reason on a reserve where you require way
more than… At one time they used to try to describe that
$15,000 of capital would be required to provide for one person
employed, but for agriculture the ratio is quite a bit different.
At the moment you require that kind of money for your
tractors and everything else. and then the less people you
employ, that is how you can make your money. So it is not
quite the same as any assembly line operation. Basically, this is
probably one of the. . .

Mr. Oberle: l dabble in farming a little myself. The
economy of scale reduces quite a bit when you have large
holdings, which you have. You have large holdings and you
only need one set of equipment to get maximum utilization
from it.

We had evidence from other bands that said that if they
were just permitted to transfer some of the welfare money that
they are getting, that is earmarked for welfare only. and they
used that to buy equipment or to use it in the economic
development area, that would solve the problem. We had
testimony here from one chiefin British Columbia where there
is no unemployment at all. There is some welfare but every
person works. They will not get their welfare cheque unless
they work in the band. That is not the kind of approach you
have thought ofand you would be using, is it?

Mr. Wells: l suppose. in some ways, that is an alternative:
but it would not be the total solution, because on our reserve
there are different types of social welfare recepients: unem-
ployed employables, and then people who are actually sick
and . . .

Mr. Oberle: Yes. but disregarding those who are disabled
or. . .

Mr. Wells: It would help some, but that is not the total
solution. It would help a great deal, l would imagine.

Mr. Oberle: What is the solution? I guess you have told us
in many ways, if you had better fiscal and monetary control,
you would be able to manage your affairs better. You say, in
the powers you think you require, you would want the power to
dispose oftribal property. Does that include land?

Mr. Little Bear: Yes, that it would include land; but here,
we are not saying to alienate the land from band ownership.
What we are referring to is the tribe’s having exclusive right to
give interests to land to band members and so on.

Mr. Oberle: To hold individually and develop individually,
yes.

Mr. Little Bear: Right.

Mr. Oberle: ln your government modclrand I guess my
colleagues will question that in greater detail»-as I see it, I do
not understand, frankly, some of the terms you are mentioning
here. What is a latch? You say “latches not to be applicable to
an lndian government”. I am not a lawyer. Maybe Roberta
could tell me what a latch is.

Ms Jamieson: Leroy is a lawyer. He will tell you.
Mr. Oberle: l.eroy will tell us.
Ms Jamieson: l can whisper in your ear, but . . .

Mr. Oberle: Can you? Maybe there are a couple of others
who are as ignorant as I am.

Mr. Chénier: Yes, that is quite right.
Mr. Oberle: It is at the bottom of page 17.

Mr. Little Bear: There is not much difference between
latches and the statute of limitations.

Mr. Oberle: I see.

Mr. Little Bear: Basically, latches refer to somebody who
might have a chosen action, some legal action they can take
and proceed against somebody else, and they choose not to act
on it. In this case, for instance, we are saying you can never
apply the whole notion of latches to the Government of
Canada. You might be able to apply it to an individual. Say
you had the chance to act on certain matters ifyou were going
to move against somebody else, but you did not. But that is not
applicable to the Crown. you see. So those are the kinds of
concerns we have.

M Oberle: Looking at the list of the powers you want to
exercise, and at the brief generally, am l right in saying you
are looking for a combination of traditional tribal governments
but that you are in many ways emulating the white man’s
structure?

Mr. Little Bear: I do not know if you would call it emulat-
ing the white man’s structure. I guess we are simply trying to
put it into terms so white people would understand what we
are trying to say. Basically, what we are saying is: if you want
a list of the things we would like, here is what we think would
forth a good basis for an lndian government to be able to
operate.

Mr. Oberle: But in order to do that, you would require your
own judicial system.

Mr. Little Bear: We feel that is a definite necessity, a
definite requirement. Why have a power you can enact if you
cannot enforce it? It is next to useless to have a power but not
to be able to enforce it, so we definitely feel a judicial system is
a definite requirement.

Mr. Oberle: What about the judicial power you would
require for your nation government? Would it, in some cases,
exceed that of the powers the provinces have?

Mr. Little Bear: Here, I guess you might be thinking in
terms of how that would fit into it. Would it interface with the
existing judicial system? When we are talking about having
our own court system, what we are thinking of is having an
exclusive jurisdiction over a territory which is basically an
Indian reserve. We are saying that it is no different from—
when I come into a jurisdictional area such as the Province of
Ontario from the Province of Manitoba, l abide by Ontario
law. We are saying. when somebody comes in, whether he be
Indian or non-lndian, to an Indian reserve, he should abide by
the law that is in place for that territory. That is what we are
talking about when we are saying a jurisdictional area.

Now, would it interface with the existing judicial system?
Well, l guess that would depend on how the whole Indian
government relationship develops, If the whole Indian
government relationship is brought about by a statutory
scheme, then you know, yes, we would have to provide for law
—we would have to provide in that statute some way to
interface a tribal court system with the larger courts, with the
larger system. Or, if we are going to approach Canada-lndian
relationships on the basis of bringing lndians into the union in
the same way, for instance, that Newfoundlandfia a separate,
sovereign entity. . . came into the union and accepted provin-
cial status, then, the terms of entry would spell out how we are
going to fit into the constitutional system. So it depends on, I
guess to a very large extent, how the overall constitutional
relationship develops. But we feel that with our suggestions
they could be worked in statutorily or constitutionally.

Mr. Oberle: You make some interesting observations and I
agree with your observations. I agree with you, that you cannot
pretend to operate under consitutional law and pretend to be a
parliamentary democracy with Parliament having the
supremacy. That is one of the reasons that I voted against the
Constitution when it was before the House of Commons. Not
being a lawyer—as a layman, you look at it from the outside. I
appreciate the comments you make; you see a distinct differ-
ence there, and I do too. We have now surrendered to the
Supreme Court of Canada powers to which they are not
entitled under a parliamentary system. The lawyers may think
differently, but to my logical mind, there is a conflict there and
I appreciate that you have come to the same conclusion.

I am thinking more about the court system that you are
looking at in terms of how it . . . well, you have answered that
in some cases it would have to exceed provincial legal jurisdic-
tion. But how would it integrate with the Constitution? How
would it conform with the Constitution? Would there have to
be special constitutional arrangements to permit tribal courts
to make laws that would be peculiar to an Indian government,
laws affecting the rights of the individual, for instance? We
have certain entrenched rights for individuals now, which
obviously are in conflict with tradtional practices in a collec-
tive lndian government structure. How do you see that
integration?

Mr. Little Bear: lf lndians were brought into the union and
they became part of the union, for instance, in the same way
that Newfoundland came into the union—I am sure that
Newfoundland said, well, if we are going to join the union,
how do we join? What are the terms on which we would agree
to join? On what terms would Canada allow us to join the
union? I guess it is a give and take. In the final analysis,
Newfoundland decided to come in on a provincial basis and,
therefore, be treated like any other province.

In some cases Indians are saying they want a third form of
government. In other words, they are saying they do not
necessarily want to come into the union, into Confederation, as
another province. They do not necessarily want that. Because
of their distinct cultural. philosophical and historical differ-
ences, they would prefer to have a different form of govern-
ment that would be provided for in the Constitution, and if
that was provided for we could then spell out, in the same way
that Section 92 spells out powers for the provinces and in the
same way that Section 91 spells out the powers for the federal
government, powers that would be accorded to a new level of
government. In those powers we can include this judicial
power.

Mr. Oberle: This is my final question. What do you say?
You say lndians. What do you say? Would it require a third
level of government, or is there room within the existing
framework? Is the existing framework flexible enough to be
modified to accommodate Indian government under one of the
systems now existing?

Mr. Little Bear: Yes and no. Yes, because having provincial
status, l guess, would certainly be better than what we refer to
as having beekeeping rules. If you read the Indian Act, under
Section 81, which gives bylaw-making powers to Indian tribes,
part of those bylaw-making powers refers to a band council
being able to pass bylaws with regard to beekeeping, tagging of
dogs and so forth. So having provincial status would definitely
be an improvement over Section 81 of the Indian Act.

But, ideally, because of the cultural differencefiwe are not
immigrants and so on; we have always been here and will
continue to be here—we feel that we would be much better off
if Canada recognized that difference instead of trying to sweep
it under the floor and saying that we are all Canadians and so
on. We are not; we are different people. Canada is made up of
different people, and l think we have to recognize that.
Consequently, a third level of government within a constitu-
tional framework I think would be the much more ideal type of
government to give to native people.

Mr. Oberle: Thank you, Mr. Chairman.

I am sorry I have to leave. lt has been exceedingly interest-
ing. Thank you very much.

The Vice-Chairman: Thank you, Mr. Oberle. Mr. Chénier.

Mr. Chénier: First of all I would like to commend the
committee or the group for a very, very good brief and a very
enlightening brief.

Many of the things you said I completely agree with. Where
I have some problem is I guess being white men we look at
provincial governments, we look at municipal governments,
and the municipal governments in Ontario are all treated the
same way. . . they are under one bill—and the provinces are
treated the same way because of the division of powers and so
on. But when we talk to Indian nations people keep saying to
us we are the Blood or we are the Iroquois or we are another
group and we have our own traditional form of government so
we cannot be just put under an umbrella and call it lndian
government-and this is really what we have been doing for
the last 100 years.

When l look at your list on pages 17 and 18, do you think
these things could apply to any band in Canada? In other
words, I am saying that there would be a common basis for
lndian government, and then another part of the act or
whatever it would be would take into consideration the
individuality of each one of the bands in Canada. Do you agree
that there could be common grounds for lndian self-govern-
ment that would apply to all nations in Canada, and then
another part that would take into account the individuality of
the bands?

Mr. Little Bear: We think so, yes. For instance, all the
provinces have the power with regard to the administration of
justice.

Pursuant to that head of power administration ofjusticc, the
province of Alberta chose not to have provincial police. So
their approach to the administration of justice, with regard to
policing, is slightly different from Quebec and Ontario. ln
other words, under the administration of justice, Alberta’s
needs have been met, you know, differently, and they are
exercising it differently than Ontario and Quebec. We feel the
same way: Given these powers, the Mohawks from Caugh-
nawaga can exercise any one of these to meet their specific
needs; the Blood Tribes. maybe having the same power, can
exercise it slightly differently.

Mr. Chénier: It is because it seems quite often to frighten—
I do not know if it frightens the bureaucrats. but I suppose it
frightens the politicians at times—and I will give you an
example. The chiefs of Manitoba came to Mr. Munro and
myself to discuss a new form of financing for their group. To
me that is a very important move that we should make. and
fast. However I knew that, for instance, the Indians of Alberta
have prepared a paper on funding; I believe the Indians of
Saskatchewan have done the same thing; the Indians in B.C., I
believe. are either in the process of preparing one or have it
completed already. When I met with the chiefs from
Manitoba, I said what I wanted would be a clear mandate
from the Assembly of First Nations that they would be
negotiating a new type of funding for all the Indian bands of
Canada.

I guess because of internal politics. and I understand that, it
was impossible to do. They received the endorsement of the
AFN, but other groups within the Assembly said that they do
not want Manitoba to negotiate for them; they can have their
own agreement and we will have our own. This is why I believe
it might be important for the Indian nations to get together to
try to define or to find a consensus on a basis they would all
work from. Then the other differences can be ironed out, in the
same way that the child welfare agreement in Manitoba was
signed with all the Indians of Manitoba. But then, under that,
there is a sub-agreement that each band signs with the
Government of Canada. In that sub-agreement there are minor
differences that apply to special areas of the province.

Mr. Little Bear: Can I comment on that? My comment is
not an answer. but more in the nature of a comment. I think
those complaints, if we can call them that, by native people
with regard to funding, are probably symbolic and maybe
symptoms of something that the Indians feel with the existing
system. Now, everybody knows that there is something wrong
with the present funding situation, because I think Canadians
across the country are aghast when they hear that the Govern-
ment of Canada is spending $1 billion or $2 billion as the
budget for Indian Affairs. But they never stop to think that
about 667:, at least. never gets down to Indians. It is all spent
in that administration and in that bureaucracy. So very, very
little of the money actually trickles down to Blood Indians. for
instance.

When they see other situations, such as Prince Edward
Island, with fewer people than all of the treaty Indians in
Canada, getting millions of dollars more, they say: There is
something wrong; we are not getting our fair share of this
country’s riches.

So when people from Manitoba say, look, we want to make
different fiscal arrangements, and people from Saskatchewan
are saying the same thing. maybe they are differing on
specifics. but they certainly are not differing on the main
principles and on the long-term goal, which is secure and fair
distribution of the moneys available in Canada.

Mr. Chénier: This is what I think. The thing is that I find-
and I guess that was my fear, and the minister’s fear—that if
we negotiated with Manitoba and we came to an agreement
with them, maybe six months later we would start the same
kind of negotiations with Alberta. At times it is felt in our
circles that we re-invent the wheel; that people will repeat the
same research that has been done. And why do that?

I believe the formula Manitoba is proposing is an extremely
good one. Why could it not apply to everybody? Then at that
point I think negotiations could start in earnest; because we
started negotiations a year and a half ago. I spent many, many
days negotiating with Manitoba, and working pretty hard with
them, but negotiations have gone nowhere, I think if there
were a consensus to negotiate that base that would be common
for everybody, it could happen. and it could happen fairly fast.

The Vice-Chairman: Thank you. Mr. Manly.

Mr. Manly: Thank you, Mr. Chairman. I would like to
thank the representative from the the Blood for a very helpful
brief and presentation.

I would like to pose you a kind of theoretical question. On
page 19 you indicate your opposition and the opposition of
other Indian people to the new optional lndian legislation that
the government was talking about presenting a couple of years
ago. They now say it is dead, but whether it is or not is perhaps
beside the point. As we go across the country we hear one
Indian group after another pointing to the unique nature of
their own lndian nation. The Bloods are a separate people and
have to be dealt with separately and have to be dealt with in a
unique way. We hear the same thing from other Indian
nations. If that is the case, why would Indian people generally
oppose a kind of optional legislation that could meet the needs
of some particular lndian groups or nations?

Mr. Little Bear: I think it is a misunderstanding to say
Indians are against optional Indian legislation, as I think our
counsel here had pointed out in the paper. Really the issue is
this whole notion of mistrust by Indians of government. We
keep mentioning it here. The thing is, the optional legislation is
being proposed by government. It is not optional legislation
that has been proposed by Indians; it is optional legislation
that has been proposed by government. Right away in the
minds of Indians across the country, they are saying, well, here
is another one in a long list of schemes by the federal govern-
ment.

As we have pointed out, there are many, many instances we
can use as examples to reinforce this mistrust. So this whole
notion—for instance, the chiefs at national chiefs’ conferences
back in 1980, 1981, had stated and passed resolutions to the
effect that the federal government should not do anything with
a new lndian Act or on Indian government until the constitu-
tional issues were resolved. Then we can start talking about
amending the Indian Act or bringing about Indian government
pursuant to the constitutional agreements.

Mr. Manly: But if individual lndian bands feel their needs
can be met under the present Constitution but they just want
some spec legis ition, would they have the right to go ahead
and negotiate that with the federal government?

Mr. Little Bear: I do not think our tribe feels . . . Maybe
Wayne, as representative for our chief. can respond to that,
but I do not think we feel we can necessarily talk for all other
Indian tribes. We are talking here, and our mandate is only for
the Blood Tribe. We can say. if you ask us, here is what we
would like to see: here is what we would like to have in place. I
think it would be a little bit beyond our mandate to say our
proposals should apply to the people in B.C.

Mr. Wells: Mr. Manly, just in addition, to answer that
initial question, I can understand that probably all 500 bands
have been saying they want their own form of government. But
I think they are all saying the same thing. The answer to what
you have just described is on the bottom of page 15.

What we are apprehensive about at this moment is that we
arcjust changing tires here on a vehicle. I think what we want
is a new vehicle on which we both make an understanding:
Okay. we have been driving a Volkswagen for the last hundred
years, but we want to drive a Ford now. We want to be able to
get into that vehicle, both parties, the government and
ourselves: and that is the jurisdictional question. We feel very
strongly that that is the issue.

Now, all these optional approaches. to me and to us. are JUSI
a band-aid approach again. Although re-inventing the wheel
has been discussed here, it possibly is; but this is what we want:
a new relationship under a new juri dictional system. Then we
can sit together and describe the things we will be discussing as
future governments.

So that is the crux of our whole approach here, to say that is
where this committee could possibly end up in terms of their
recommendations. The question is not to describe how the
Treasury Board regulations should change. We have been used
to it for a hundred years, and it has not worked with us. It
really has not. Our hands are tied as government people, our
own Indian government system, because of this whole question
ofjurisdiction; and that, I think, is the crux of this whole thing
we are trying to describe to you people. I am sure the other
bands have been saying the same thing, only with a different
format.

Again, just to go back to the gentleman’s question, there are
570 and some odd bands and there are 500 and some odd
different historical background nd I suppose, when we come
right down to it, we are all saying the same thing. We want to
be treated in the same way you have dealt with the provinces. I
am sure you have dealt with Quebec a little bit differently than
you have with Alberta. That is what we are saying: a formula
operation so that each man can say what satisfies him, instead
of continuing to say that Indians are Indians and there is only
one, and we can provide the same rule all of them.

This jurisdiction is the thing we are trying to resolve with
you, nothing else. This s an option, fine: and we are saying it is
just a band-aid approach again.

Thank you, Mr. Chairman.

Mr. Narcisse Blood (Adviser, Blood Tribe): Perhaps I could
also comment on that, I would like to turn the question around
and ask the committee a question. I do not know if you can
answer it.

You seem to be caught up in this whole notion that we have
to approach you in one way. What seems to be the main
problem? What is good for one is good for all of them. This
problem of not being able to accommodate individual bands
seems to be a real stick in the mud. Negotiations just seem to
break down. It is like I wished all parties in Parliament would
agree on the Crow Rate or something like that. It is the same
idea. I am sure you can come up with different party rationales
why you are going that way, the same way we can come up
with rationales or other tribes come up with their own different
thoughts.

The Vice-Chairman: That point has certainly been very
evident in our crossing the country. It has been brought before
the committee in every province by almost every band so we
are very aware of what you are saying.

Mr. Manly, have you another question?

Mr. Manly: Yes, I do. I would like to ask it of Mr. Little
Bear. He prepared a report on the optional band government
making some recommendations to it. I received a copy of the
report from Mr. Tait, and this has already been appended, I
understand, to the submission, On page 5 you talk about the
scepticism that Indian people have towards the government,
and certainly we have encountered some of that scepticism
toward the work of our own committee, and I think most of the
members of the committee would agree that that scepticism is
justified. Then you talk about the whole process, about the
way in which the government should be involved in a very open
process so the Indian people know exactly what is happening.
You suggest a process, I think, that involves draft legislation
with a discussion paper that clearly outlines the options
followed by some kind of a consultation process that would
involve both the standing committees having hearings in
Ottawa and also a commission that would be composed of non-
governmental people and Indian people that would cross the
country to hear the views of Indian people.

Do you think our committee should be making some such
recommendation to the government that in any legislation it
introduces regarding Indian government a process similar to
that should be followed, and would you like to elaborate on the
process and on the need for being open in that process?

Mr. Little Bear: Yes, I would like to make a couple of
comments.

Number one. we keep pointing out—and I guess this
submission by the Blood tribe and, again, the submission made
to John Tait with regard to proposals by the Minister of Indian
Affairs were an example. I was kind of involved in that
submission by Munro. I was sitting in a kind of an advisory
capacity as a sounding-board to some of these proposals. We
were saying the same thing: look, you have to try something
different; just addressing administrative convenience, etc, is
not going to work; you have to try something different.

When all was said and done. . . and maybe you people have
copies of those proposals from the minister’s office: I do not
know . . . there was nothing different and our input at meetings
that we have held was not reflected at all.

So we had a meeting with the minister, and we asked what
was going on. Why did you ask us if you were going to waste
our time, ifyour bureaucrats are going to waste our time? This
was a waste of time because our views were not reflected at all
in the papers that you have forwarded. He asked what was
wrong with the paper? I said, Well, jeez, we have been telling
you. He said, Well, tell me again; put it down on paper. Some
of this was a reaction to the paper, and we said, You are going
to have to approach it such and such; you are going to have to
be very open and so forth. But with a long history of suspicion
riding on your back I do not know how you prove your
credibility; it is not something that you can turn.

But since then, the proposal that we came up with was this:
we said, Why do you not let us draft a paper for you and see
which one Indians would accept? Let us take your papers and
the paper we draft and let us tote them across the country; let
us see who is going to accept what. The answer was, Well,
write me a criticism of my papers first. So we did, and… no
response. First thing we knew, this committee, back in June of
1982 or thereabouts, came into being and started dealing. I
take it that the minister has had his audiences with this, and so
on, and that he has presented his views but the offer to come
up with our own paper was never really responded to. Asking
me, plus three or four other people, to act as a sounding board,
as advisers to him, and then he never incorporating any of
those ideas . . . I said to myself, Gee, another useless
exercise . .. waste of time, money spent on it, etc. To me, at
least personally, it really reinforced the same thing over again.
How the government can really go about trying to change the
picture around, that is a problem it has. I do not know if you
can do it overnight, but I see that this committee, having heard
from a lot of lndians, is at least in the right direction. At least
we have a much broader based audience instead of simply
dealing with the Minister of Indian Affairs or some bureaucrat
from the department; at least we have a much broader based
forum to present our views. So we see that as being at least in
the right direction.

In the reaction to the ministeris proposals, yes, we did state:
maybe a committee holding hearings and so on. The thing was
that idea is not new. It had been proposed way back after the
Cabinet Committee had fallen by the wayside. Hugh Faulkner
was then Minister of Indian Affairs. He said:

As Minister of Indian Affairs I am proposing to do the
following: I am going to follow the same route as the special
committee on the constitution, have an all-parties committee
that will introduce a bill, hold special meetings and then
come back for debates, etc.

We have said, that is nothing different. All bills that go to
Parliament follow that route except maybe for a standing
committee rather than a special parliamentary Committee. So
just realizing that it is a regular procedural route followed by
all bills that go through Parliament we mentioned it and
recomtnended that procedure.

Mr. Manly: You would concur with the views of other
Indian people across the country that in no way should this
committee be seen as any kind of an adequate consultation
process; that the work this committee is doing is preparatory to
get the views of Indian people to begin with and should not be
regarded as any kind of consultation?

Mr. Little Bear: True, because as we have mentioned in the
constitutional position of the Blood tribe, the feeling is that
when we say that there is a lack of a conceptual framework
within which Canadian law could develop, it is because there
are different levels of law that we see, like constitutional law,
statutory law, regulatory schemes, but the Canadian Parlia-
mentary systcm or Canadian law in general has had a very
general approach. Sometimes regulatory schemes override
constitutional rights. I can give you an example, that example
being—for instance, Fisheries is a federal head of power. The
federal government passes a federal Fisheries Act within which
it gives regulatory powers to provinces to pass fishing regula-
tions. The Natural Resources Transfer Agreement with the
three prairie provinces is part of the BNA Act, part of the
constitutional law of Canada, which gives a right to Indians to
hunt and fish for food year-round on unoccupied Crown lands,
etc. The Province of Alberta comes back and says, we have the
right to pass fishing regulations. Because we received this right
from the federal source, we can apply them to you. So you
have regulations overriding a constitutional right.

So in other words, all these laws, whether they are regula-
tory, whether they are statutory or constitutional in nature-
they all seem to be given equal effect. So there is no kind of
conceptual, hierarchical arrangement. So realizing that, it does
not make much difference whether we try to argue simply at a
constitutional level or if we try to present our views at a
statutory level, at this level of committee, or if we try to
present our views at a regulatory level dealing with bureau-
crats. Knowing this melting-pot approach, I guess what we are
trying to do is present our views at every level, hoping that
somewhere along the way some changes will occur.

But if there were this statutory level, as lndians were hoping
would happen, well, then, we could simply, to a very large
extent, deal at a constitutional level. Once we have agreed to
constitutional issues, then we can talk about Indian govern-
ment and how we are going to carry it out statutorily. But that
is not the case. In fact, this committee, to a very large extent,
is an example of the melting pot approach. We talk about
Indian government at the constitutional level and here we have
a committee at a statutory level also dealing with the same
is ue. This mixed bag, melting pot approach to law is the
reason why we make use of every possible forum and hope that
somewhere along the way the desired changes, our suggested
changes, will occur.

Mr. Manly: Thank you.

The Vice-Chairman: Thank you. Mr. Manly.

We are doing very well here. The Chair has some difficulty
staying beyond 12.00 p.m. l have an appointment I have to
make at that time.

We have three more qucstioners who wish to speak and l
have no difficulty, if someone else takes the Chair. of extend-
ing the meeting beyond 12.00. We have Mr. Tousignant, Mr.
Manly and Roberta who would like to ask questions so…

Mr. Allmand: Mr. Chairman, I thought I had my name
down there.

The Vice-Chairman: Oh, Mr. Allmand. I am sorry, I put
Mr. Manly in your place. I have to adjourn the meeting at
12.00. ls anyone prepared to take the Chair after that, to keep
it going?

Mr. Chénier: I will see to it.

The Vice-Chairman: Very good. The next questioner will be
Mr. Tousignant.

Mr. Tousignant: Thank you. Mr. Chairman. l do not often
ask questions and since we are always short of time for the
witnesses. l realize that at the end it may turn out that I will
have been the member who will have served best the cause of
lndians, to let them speak by abstaining myself.

l would like to ask two short questions. How do you come to
the figures there, that 60% of the whole budget, $1.5 billion,
does not get to the Indian? What figures do you use?

Mr. Little Bear: l think what we were referring to here «we
do not have tlte specifies—but we were referring to a study.
that was eondueted quite a few years ago with regard to Indian
housing. and there were so many millions of dollars that were
set aside for Indian housing. The CPAs, that had conducted
this study, came out with the findings, when they charted all
the money down, how it was going to be spent, etc., that two-
thirds of it had been spent in administration and something
like one-third came down to boards and nails for housing. So
we are using that as an example of the amount of money spent.

Mr. Tousignant: Yes, but… you know, that is what we
hear, and we hear for some other places, 80%. But I do not
think it is fair to say that, because, in fact, if we have 6,000
employees in the department, we have an administration
budget of maybe $150 million ofa total budget of 51.5 billion.
You know, the money has to go somewhere; the rest of the
money has to go somewhere to the lndians. We could explain
that very well. and it is does not serve the cause, very objec-
tively, to say those things because the money definitely goes to
the Indians, one way or the other. We have to tnaintain
buildings and we have to pay salaries, but this comes to about
$150 million. So that is 10%, when we talk about administra-
tion. The rest is not eaten: it has to go somewhere, in making
plans for buildings and everything that you would have to
make anyhow.

Mr. Little Bear: Well, to settle the issue, maybe it is
something we should both look at very closely, because. for
instance. the Blood Indian Tribe are just in the process of
reviewing all their budgets. The Blood lndian Tribe pays, out
of its own capital and revenue moneys, at least 70% to 80% of
the budget, and probably less than 25% comes front govern-
ment. So, you know, of that billion dollars, or whatever is left
after administrative costs. we do not see much of it at all. We
see very little.

Mr. Tousignant: Okay, thank you. You have. . .

Ms Jamieson: Mr. Chairman,just on a point of information,
Henri, and for the witness’s information; this committee
commissioned four research projects. One was to look at
expenditures with respect to money appropriated by Parlia-
ment for the use of Indians. We have those results and we are
meeting in camera, this afternoon, to question on those results.
So there are figures available, and I hope in our report we will
put the exact figures in without arguing what the percentage
is. We do have those things available to us, at this stage,
because we also thought it was an extremely important area to
look into. So I havejust that point of information. I hope those
figures will be made public in the fall.

Mr. Tuusignant: Thank you.

This is my last question. You mentioned that you had
difficulties in obtaining performance bonds. Could you explain
this?

Mr. Wells: This problem arose about our partners. after
they either shut the doors down or we had to buy them out. In
this case we were forced to buy them out and, then, we were
the sole owners of Kainai Industries. The next step, that we
required, was this loan guarantee of a $1 million line of credit,
which certainly helped a great deal. But the minute that we
wanted to make bids on large projects—probably a bid of a
million dollars, 60 units—we were not able to be bonded by
any insurance company. So, what ended up to be an independ-
ent . . . We thought we were, totally, a legal entity by being a
corporate body. That did not help at all because the manufac-
turing industry was situated right on the reserve.

Mr. Tousignant: Why were you refused by the insurance
company?

Mr. Wells: To this date we have not really received an
answer that we had hoped for, that we could get some Justice
opinions, and so forth. So in a lot of cases we had to be the
subcontractor or go through a distributor. They are the ones
who handled it.

I guess what I am saying is we lost out on big bids because
we could not . . .

Mr. Tousignant: Yes.

Mr. Little Bear: Part of the problem is Section 89 of the
Indian Act, which states that property situated on an Indian
reserve is not subject to lien, seizure. etc. A lot of loaning
agencies, including banks and trust companies, see that section
and they say we cannot give out chattel mortgages. we cannot
enter into any kind of contract. So native people have lots of
problems trying to obtain loans.

In the case of Kainai Industries, it is a corporate body: it is a
corporation. So it is not an lndian. Nevertheless, because the
operation is on Indian reserve lands, even though those reserve
lands had been surrendered conditionally for the purpose of—
more like leasing out the land to the corporate body—even in
spite of the fact that they are a corporate body and therefore
not Indians, and therefore Section 89 does not apply, tlte
bonding agency still would not give the performance bonds and
soon.

Mr. Tousignant: What amount of bond did you need? What
was the amount of the bond that you needed there?

Mr. Wells: I cannot recall the exact amount. I think the
largest would have been about $500,000. because there was a
project in B.C. that we wanted to bid on, and this was our first
knowledge of not being able to be bonded. We had, I suppose.
the inside track on the whole contract. but the minute we were
not able to get bonded, I think we were left with maybe 8
units—not a peformanee bond but another type of thing. So we
had to try to dissect our operations, to say, okay, we will bid on
8, and the other 24 were given to another contractor—that
type of an approach. We had to make separate bids for little
projects where the companies were willing to gamble on us.

Mr. Tousignant: What I am trying to come at is the amount
of bond needed from the insurance companies. compared with
the assets the company owns; because we eneottnter that too. I
have been in business, and ill wanted a $2 million bond, I had
to have $2 million in assets in the bank—or if it is because, as
you say, it is on an Indian reserve or it has to do with Indians
that you encountered those difficulties.

Mr. Little Bear: The Department of Indian Affairs, through
their Justice lawyers, I understand are going to be having a
meeting very shortly, within the next day or two, with the
CBA, Canadian Bankers’ Association, to try to resolve some of
the problems encountered by Indians with Section 89 of the
Indian Act. Hopefully sontcthing will result front those
meetings. But it is to a very large extent the interpretation put
on Section 89 of the act which scares off loaning agencies,
bonding agencies, etc.

Mr. Wells: Mr. Tousignant, all of that information you can
easily get from the Indian Affairs staff, because we have given
them everything, and I am almost positive that we had enough
ets to cover any kind of a performance bond.

Mr. Tousignant: Okay. Thank you.

The Acting Chairman (Mr. Chénier): Mrs. Jamieson.

Ms Jamieson: Thank you, Mr. Chairman.

I would like to thank the Blood Tribe for their submission.
As well, I would like to recognize the submission by Treaty
No. Seven. I hope we will all study that, and the contributions
made by Leroy in the appendices and the exhibits he has been
involved with in the areas this committee has been charged
with looking at for some time. His expertise is welcome.

You have touched on this in your answers to some of the
other questions, all of you. I wanted to clarify this: Do you
think it is possible to have a national Indian act which applies
to all band governments on all reserves, including a list of
powers and a financial formula? Is that possible?

I will tell you why I ask. It is because we have heard
throughout the country… as a matter of fact, last week we
were in Quebec and the James Bay Cree and the Naskapi have
negotiated their own settlement; they are now negotiating their
own fiscal relationship; they want to have a separate act
applying to them in their area that is acceptable to them. We
see other areas—the Sechelt Band wanted its own act—and on
and on.

The complaint we often hear is the one that you made
earlier: why do you insist on treating us all alike; we are not
alike, although there are some common principles; for
instance, we wish to be treated as the governments that we are;
we do not want all to be treated the same, and that is the
problem over the last 100 years that we have encountered.

I wonder if you would speak to that. I know that the Cree
and the Naskapi and these people are going in this direction
with their own acts, but I also know what you know, and that
is that the Government of Canada says it is unmanageable, it
says, we cannot deal in that fashion, we must find some way of
dealing with you all in the same way, or in a similar fashion.
How do you feel about that? Is it possible? Do you think we
should be working on one act that applies, which may provide
for some areas of regional variation? Or do you think we
should be working on a system that allows each area to have its
own act, which is registered and confirmed at some stage
through federal legislation?

Mr. Little Bear: May I answer that?

Ms Jamieson: Sure, anyone.

Mr. Little Bear: We understand that this committee has
visited the United States and has had an audience with some
of the Indian tribes and maybe the Bureau of Indian Affairs’
officials, etc. It probably came very quickly to you that the
United States, in many, many cases, has a one-to-one relation-
ship with many of the Indian tribes. In other words, what
applies to the Navahos does not apply to the Blackfeet in
Montana, and so on. Why is it that the United States can have
this kind of one-to-one relationship and Canada is very scared
of it? We can probably give you some reasons why.

First, it is because when we think of applying and ltaving
one uniform act, I guess we are looking at it from the perspec-
tive of the present Indian Affairs bureaucracy doing a large
part of the administration. If we look at it from a slightly
different perspective. if we look at it from the perspective of
the Blood Indian Tribe and their having their own exclusive
jurisdiction, etc. those administrative functions that are
presently being carried out by the department would not
continue to be performed by the department. Administratively
speaking. those functions would be carried on by the Blood
Tribe. lt scares people off, but that is because they are saying,
how can we administer all these different ones? That is only
true if the government wants to continue the present format of
administration. but it would not be true if each Indian tribe
took over and had its own administration. The Blood Tribe
administration would perform these functions. Consequently
we do not see much of a problem with having different
relationships between different tribes across the country.

Ms Jamieson: How would you see that evolving? For
instance, you are not involved in the constitutional discussions.
Leaving the constitutional discussions aside, would you see
yourselves being involved in negotiations with some central
point in the Government of Canada, whether it be Treasury
Board or… ? Some people have talked about an Indian fiscal
arrangments commission.

As a matter of fact, we heard that idea for the first time in
Alberta. Do you see that as the means for contact between the
Blood Tribe and the Government of Canada for the arrange-
ment that you would like to see for the development of the act,
if you think it is necessary, or . . .? You have your own
constitution here. How would you see that proceeding in a way
that would be respected by the Government of Canada?
Would you see it being legislated in the recognition? Would
you see the Government of Canada passing laws, saying we
will recognize all lndian governments, their constitutions will
be registered in some lndian registry. and then we will
negotiate fiscal relations with them? How do you see that
proceeding in a practical sense, now that you have your
constitution?

Mr. Little Bear: I guess what we are saying is that here we
have a constitution that we can use for our tribe for our day-
today affairs. But we also realize that we can enter into
relationships with other nation states. with other enclaves.
Now, let us take Canada, for instance. Canada has relation-
ships, agreements, treaties, etc., with a lot of other countries.
Now, how does Canada relate to those other countries? Well,
it has developed a specific department. External Affairs, to
deal with those other countries. But the development of
External Affairs as a department was something internal to
Canada. They chose to organize their affairs and how to relate
to those countries. It was not a requirement on the part of the
United States to say you have to establish an External Affairs
to deal with us. All the United States knows is we have an
agreement with Canada, and so long as they carry out that
agreement, fine. Whether they do it through lndian Affairs or
whether they do it through External Affairs, or a combination
of agencies, we do not care. so long as they perform pursuant
to the agreement we have.

I guess we are saying the same thing. We have a relation-
ship, and that relationship is characterized, as we have stated
here, through treaties and so on. That is what characterizes the
relationship. l guess Canada has responded by deciding to deal
with Indians through a special department, by creating a
special department. Now the thing is that this department over
the history of Canadian-lndian relationships has taken on a lot
of responsibilities which it could have well left alone. and it has
become a part of its fabric, and it is finding it hard to take one
or two layers of clothing off. We are saying that those are
functions that you are performing for us that might have been
called for 50 or 100 years ago, but no feel we can take those on
now that this relationship is now being much more closely
looked at, much more firmly established, and so on. We feel
we can perform those things. And so how Canada really
responds to that, l think, is an internal matter to them, in the
same way that we feel that how we deal with other entities is
internal to the Blood Tribe.

Ms Jamieson: Okay. Your point is well taken, but it is our
responsibility as a committee, however, to recommend what
Canada should do in legislative terms, in institutional terms, to
accommodate lndian self-government.

Now, maybe you can tell me the kinds of things you do not
want Canada to do, or you do not want us to recommend. Do
you want us to say: Yes, let us carry on with the Department
of Indian Affairs. or let us not carry on with that? Yes. let us
have it continue with having a minister responsible, or no
longer have a minister responsible? Set up a special committee
to oversee fulfilment of treaty obligations. or to oversee
implementation of past deals with Indian nations, or not? Do
you have any strong feelings on the kinds of things you do not
want Canada to do because it would no longer be appropriate
in dealing with you as the Blood Indian Tribe?

Mr. Little Bear: Ideally again… this will be almost like
throwing the question back. but hopefully it will explain our
position. In what we have stated in this presentation and the
constitution we have, we feel that constitution can be inter-
faced into the existing system at the legislative level. But it can
also be interfaced at the constitutional level. It depends on
where the interfacing takes place. If it is at the constitutional
level, then we saying that if Canada is going to make us a solid
part of the Canadian Constitution, that means we would be
taking the approach Newfoundland did back in 1939—coming
into the union. lf we are going to cotne into the union, then
some constitutional changes will have to be made. Once those
constitutional changes are made, maybe there would be no
need for a Minister of lndian Affairs.

But if we are going to take the status quo and if Canada
says no, we choose to continue to respond to Indians in the
following manner. . . that is, referring to the status quo—then
maybe there will need to be an lndian agent. He would be
saddled with the responsibilities Canada has towards lndians
within its boundaries, in the same way that the Minister of
External Affairs is saddled with responsibilities to other
countries.

So to a very large extent, it is how Canada views it and the
kinds of changes they want to make to this relationship. We
are saying that with the way we have it set up, we can do the
interfacing at either level.

Mr. Wells: Roberta, another thing, too. As l think you have
alluded to in our presentation, all morning we have been trying
to describe to you the possibility of a third order of govern-
ment, in which the jurisdiction question is really the issue. If
we are ever going to negotiate in that context, then l am sure
we both have to be practical about things. We cannot indicate
that the day after tomorrow everything ceases and we start
something new.

However, if we ever get to that stage, I do believe the Blood
lndian Tribe and Canada itself can then begin to negotiate
those things which they can negotiate practically for that
period of time. l am sure the internal affairs department of the
think that is really what we have been describing all morning.
We are not really that interested in this Band-aid approach of
just changing slightly the administrative policies of Indian
affairs. We feel very strongly that under this kind of concept
the Blood lndian Tribe could operate a lot more efficiently.

l am sure Mr. Manly was not quite aware of our situation.
We have the largest reserve and, in the past, there used to be
the term “the biggest is the best”; but that is not necessarily
so. it can mean probably the biggest headache, sometimes. A
large reserve, a large population—so there is a greater need for
cooperation and co-ordination.

The other thing to keep in mind is the fact that 6,000 people
are living under two systems—three, in some cases. There is
the cultural way of life; the demoeractic Canadian type of
system: and the third system, which is communal.

So it is often hard to try to come up with programs that
would be the answer. But basically, once you have given that
opportunity, what we have tried to describe, let us have the
opportunity to determine our own destiny. I think that is really
the bottom line of our approach to this whole question.

Ms Jamieson: Thank you.

Mr. Blood: There are some things you do not want to hear. I
think the direction in which the new legislation was going was
to give minimal powers that are equal to municipalities’. We
do not want to go in that direction, whether it be education. . .
I know our presentation is dealing with a lot of legal issues; but
l guess if we could speak Blackfoot, then we would make that
presentation. But as Leroy said, these are terms we have to use
to convey the message to the committee.

But in other areas, like education and all that, there is still
an attempt to go in that direction, setting up a school board
that is equivalent to a school board under the provincial school
system. I think Les is very familiar with that kind of thing, and
these are the kind of things we want to avoid. We will deter-
mine the terms of reference for our school board and what
their functions will be, etc., but it will not necessarily be
equivalent to a provincial school system: and I think that was
the direction in which this new legislation was going.

Ms Jamieson: It is very clear in my mind what you are
telling us, and that is concentrate on the basic relations; do not
fool around with minor Band-aid amendment approaches,
because that is not going to solve the problem. it will prolong
it.

One other question I wanted to ask you is this. On page 4,
you talk about the semantic confusion of the word ”Indian”. I
myself know, for convenience and sometimes habit, even the
people of the First Nations use that word. We also heard from
George Erasmus when we were in N.W.T. He said:

I wonder if you might consider actually changing the term
“lndian” to something more fitting, either the First Nations’
Act or something that recognizes the historical mistake that
was made by calling indigenous people lndians.

I wonder if you think this committee would help increase
public consciousness if we used the term “First Nations” as
opposed to “lndian” all the time. That is the approach that has
been taken over the last 100 years: they are Indian, and they
are all the same under the lndian Act. I wonder if that would
be an advance, if you would suggest to us that we use that
term “First Nations”. What are your views?

Mr. Blood: First of all, to put it in context, it was in
reference to some internal things that were happening within
the AFN—well, it was not within the AFN, but in reference to
how the government was trying to approach the Section 37(2)
conference; that is, to amalgamate us with NCC and ICNI.

We are just saying they are different, and we have nothing
against them; but we cannot just . . .

Ms Jamieson: But they are different.

Mr. Blood: They are different; their situation. But I think
you touched on another part of it. Leroy could answer that
part.

Mr. Little Bear: I think I! would help to refer to the status
treaty lndian groups as first Nations; and I think, in fact. that
clarifies the situation quite a bit. Yes, too often “lndian” is
used as a general, broad label, and everybody is pushed under
that umbrella; and consequently, maybe it also brings about
this notion of uniform application, uniform policy, uniform
approach.

Ms Jamieson: Your list of powers includes hunting. fishing,
trapping and gathering. You have a territorial base for the
Blood Tribe. You would operate within that. You have a
provincial government and the federal government on the
outside of that somewhere. Where there were instances where
the federal government. for instance, or the provincial
government. for instance, tnade laws with respect to hunting,
fishing. etc., and you are making them as well, how would you
work out the grey areas or the possible positive or negative
impacts of one jurisdiction on the other? How would you see
that being worked out in the future?

Mr. Little Bear: If we had exclusive jurisdiction, but for
instance, there was a concern that all the deer might be hunted
out, it might be that we could sit down with the province or the
federal government and enter into some conservation program
and so on. But we would not see their laws as applying to us. lt
would have to be done through mutual agreement.

Ms Jamieson: Thank you.

Thank you. Mr. Chairman.

The Acting Chairman (Mr. Chénier): .lust one comment.
Quite often we look at the States and we say, my gosh, we are
so far behind them. But the thing that surprised me when l
was in Washington was finding out that the United States has
about 725,000 “recognized” lndians, as they call them.

Ms Jamieson: You have had your turn.

The Acting Chairman (Mr. Chénier): Well, I am the
chairman.

Ms Jamieson: I told you: whenever they sit in that chair,
they start talking.

The Acting Chairman (Mr. Chénier): Furthermore, they
play with a $2 billion budget and they have 20,000 employees.
So on the face of it, it appears that they are much more
advanced than we are, and l agree that they deal with the
Navajos differently from how the Government of Canada
deals with the bands in Canada. But I saw the smaller bands in
New Mexico, and I would not think the United States is
treating them much better than we are; I would say probably
worse than we are in Canada.

Mr. Allmand.

Mr. Allmand: If I understand correctly, what you are
suggesting and recommending to us is that our Constitution
recognize your right to self-government. Then that having
been done, each nation, each tribe. would draft its own
constitution and submit it to whatever minister you want to
call him at the federal level, in the federal government. Then
having decided what you want to do for yourselves. you would
make arrangements with the federal government as to what
you want them to do for you, still. You may decide you want
us to do certain things. Now, you have given us your constitu-
tion and you are saying that these are the types of things you
want to do for yourselves, if it was Bloods. You have the
powers of the chief, powers of the council, and I presume that
on the things not listed here you would work out arrangements
with the federal government to recognize their laws and other
things. Is this more or less correct?

Mr. Little Bear: Yes.

Mr. Allmand: Good. I mttst say I have no difficulty with
that, and the Canadian government should not have either. As
you pointed out, under CIDA we have an administration of
government which administers agreements and arrangements
with many countries in the world, some bilaterally, some
multilaterally, such as the Central America Bank, the bilateral
agreements with Guatemala, and that agency, CIDA, is
continually negotiating and renegotiating because these
countries change their governments; they decide that when one
agreement is up the new one must be replaced by another one.
But it is always either Canada to other nations, or Canada to
groups of nations. The government accepted it with James
Bay; there is no reason why they cannot accept it with
everybody else.

This is what I wanted to ask you about. There are many
things in the world that take place just naturally, that are not
restricted to any jurisdiction. and not only federal or provincial
jurisdiction, but internationaljurisdiction.

For example, let us take radio waves. What I am trying to
say is that there are certain things that would be difficult,
things there would have to be restrictions on. I cannot see the
Canadian government permitting—nor can the Canadian
government do it itself—let us say, the Blood Band to decide
they are going to erect a radio station and are just going to
take over the same broadcast band as Lethbridge, or maybe
the same band as the Blackfoot, because then you would have
international anarchy. Because these things float through
many countries, we have agreed to give up our sovereignty and
recognize the international ways of doing things.

The same with rivers. A river may start in the States, flow
into Alberta, flow through the Blood Band—l do not know
how many do—and then flow out the other side. You would
not allow Alberta to dam up the river and stop the water going
through your reserve. Nor would Albcrtu accept it if you
dammed it up and did not let it flow out to wherever.

So you have agencies which have a kind of jurisdiction
beyond and above provinces, states, nations. and so on. I just
want to make clear that you accept tho. kinds of things.
international. multinational agencies, which would have to
regulate the flow of air, the flow of radio waves, rivers, lakes,
etc.

Mr. Little Bear: We have no problem with that. That is
what we are referring to. In other words. it is like the same old
saying, your freedom ends when it crosses my path. You are
free to do anything you want until somebody else is involved.
We have no problems with that. We are saying we want to
have our exclusive jurisdiction within our boundaries, but
when it involves somebody else, we are open. I think we are
very reasonable people. We are more than willing to sit down
and discuss and enter into agreements on how to handle those
situations which do not necessarily respect boundaries.

Mr. Allmand: The only question that would remain on this
subject is in your constitution you list those powers which now,
in 1983, you see are appropriate and you would like for your
band and council and chief and so on. Does that mean you
would recognize that the residual powers, for the moment.
remain with the federal government, or would you prefer that
all residual powers be with the bands, except for very limited
restrictions? For example, l cannot see the Canadian govern-
ment ever recognizing sovereignty in Indian bands to the
extent that they could make agreements, let us say, with the
Soviet Union to place missiles on, let us say, Kahnawake or in
Sarcee.

l have not had a chance to pursue—that is an extreme
example, but some witnesses have come here and said we want
full sovereignty; international sovereignty. There have to be
some very limited restrictions. because you could have an
agreement between a nation band in Saskatchewan and
Khadafi in Libya which would go completely contrary to
international policy and would cause a very serious military
threat to all of Canada.

So those are restrictions. But the residual powers—let us say
for the moment these are the only powers you want. Would
you still suggest that the residual powers, except for very
limited things, remain with the bands. as opposed to with the
Government of Canada?

Mr. Little Bear: Yes, we would go along with that line of
thinking, mainly because we see that any power that an Indian
government has actually comes from the people. So any
residual powers would have to be in the people themselves. The
source of sovereignty, if you want to put it in those terms,
comes from the people. But then we also realize— and I thank
this is what Wayne was referring to— we have to be practical
too. We are not saying we now can make treaties on defence
and missiles etc. with China. We know that this is our
homeland and this land has been our home for many, many
years, and we feel we have to do certain things. Our Creator
entrusted us to protect this land for future generations.

About this notion of sovereignty, l knoii the Canadian
government finds it hard, when the word “sovereignty” is
being thrown around, to accept it l think we have to put it in
context. If you look at the UN Charter. some of the UN
conventions, for instance on human rights and so on, you will
find that Canada has signed those UN conventions agreeing to
indigenous peoples having the right to self-determination;
indigenous people being recognized as a people for certain
purposes. What are the criteria for recognizing certain people
and so on?

You will find that the very things a lot of the Indians are
asking for are in the nature of self-deterinination; they are in
the nature of being recognized as a people culturally and so on.
that they have land base. which is an Indian reserve, etc. These
things Canada has agreed to already at an international level.
and if you compare what Canada has agreed to on an interna-
tional level you will find that the Indians may be saying it
differently here, putting it in terms of lndian Affairs language
because that is all we have spoken these past 100 years. . . We
are saying the same things. So we find it a little hard.

We know that Canada is having problems with the term
“sovereignty”, but I think we are looking at it from a UN self-
determination perspective, Those things Canada has agreed to.
So we say if they agree on the one hand. why cannot they
usually do the same thing?

l just read in a paper . . . as an aside, if I may throw this out
as a jog . . . How long have lndians asked for an effective land
claims mechanism? It has been many, many years. Nishga
Indians have been fighting for their land claim since the 1920s.
The Japanese are going to get their land claims and property
settlements quickly. Government is working quietly to settle
those claims. You read those in the paper and then you wonder
why.

Mr. Allmand: Good.

I just have two other very short questions: just explanations
ofthings I do not understand in your brief.

On page 8 under point (6) you talk about interpretation of
Section 35 of the Constitution Act 1981, the new Constitution
Act. I am not clear in reading that whether you accept the
word “existing” as being an appropriate part of Section 35 or
whether you would prefer that the word “existing” be taken
out. It isjust not clear for me.

Mr. Little Bear: Our interpretation is that aboriginal rights,
at least, have always existed and treaty rights have existed
since the signing of the treaty. So we do not have any problems
with it.

Mr. Allmand: What are you going on to say, though? You
say:

It is the position of the Blood Tribe that since Section 35
does not state that “existing aboriginal treaty rights are
hereby recognized and affirmed subject to existing case
law… ” that all that body of law that have in the past
restricted aboriginal and treaty rights is no longer applicable
and that a new body of law will be developed pursuant to
mutual agreement.

Maybe you could explain that for me. I do not know what
you are really recommending to us there. It is not clear to me.

Mr. Little Bear: What we are saying there is that Section 35
simply states that existing aboriginal and treaty rights are
hereby recognized and affirmed. We have said that our
aboriginal rights have always existed, that we have never
surrendered them and so forth. The government agrees with us
by stating that. For Section 35 to say “existing” would only
make a difference if you read it to mean that aboriginal and
treaty rights are subject to existing case law; existing law. But
Section 35 makes no such restriction. Therefore we look at the
Constitution and the Section 37 constitutional convention as a
forum for making new law.

Mr. Allmandz Yes. In other words, this continent existed
before the European map makers decided to draw a map of it.
Its existence did not depend on the map maker; it existed for a
long time before that. What you are saying is the fact that our
laws came along in the 19th century and started passing laws
does not give your rights existence or non-existence; they
always existed.

Well, that clarifies that one. The other one—I wish Oberle
were still here… is on page 9, point (9), in which you talk
about a conflict between the principle of parliamentary
supremacy and constitutional government. I must say that as a
lawyer, and in a sense a constitutional lawyer, I have taken the
position—not only I, but lots of people—that the principle of
parliamentary supremacy never applied in Canada in its
classic form, because we always operated under statutes which
were passed by the British Parliament, which always restricted
the type of government we had, starting in I774, 1791. the
constitution of 1841. The constitution of I867 was a colonial
statute. It said the Parliament and legislatures in Canada can
do these things; but there was no parliamentary supremacy in
the terms of the British Parliament. Not only could they not do
more than what the British Parliament permitted them to do,
but they divided up the sovereignty that they gave us between
provincial legislatures and federal legislatures.

So we have always been subject to a written constitution:
which is different from Britain. Then along came the Colonial
Laws Validity Act, which said the Canadian Parliament and
the Australian and so on could pa aws that would contradict
the British laws, but only in certain respects. The Statute of
Westminster gave us a bit more freedom, but still it was
restricted.

In other words, we have always operated in Canada within
the limits of written constitutional statutes, and I do not think
we have ever had the classic principle of parliamentary
supremacy applying here. Now with the new Constitutional
Act of 1981 the sovereignty of the Canadian Parliament is
limited by what is in Section 91. We cannot do what is Section
92; which always was the case. The Parliament of Canada
cannot interfere with basic rights which are in the Charter of
Rights. You need a constitutional amendment to contradict
those things. And the provinces cannot legislate on external
affairs or on the Post Office, because those are not in their
jurisdiction, nor can they amend the Canadian Constitution
unilaterally.

So I am not quite sure what you mean by what you are
saying in point (9) here.

Mr. Little Bear: Well, maybe it is a matter ofinterpretation
and a matter of how the BNA Act and what constitutional law
we have in Canada have been applied to lndians. But we
certainly look at the British North America Act not as a true
constitution. it was an administrative piece of legislation for
the day-to-day affairs of the running of a colony, Canada.

Mr. Allmand: That is what we thought ofit too.

Mr. Little Bear: Yes, right. It is ba ally an administrative
piece of legislation. It is not a constitution in its true—if you
want to talk about a real constitution, it is not a real constitu-
tion. It simply gives a division of powers between two levels of
government, with administrative structural organization, etc.

We may say that parliamentary supremacy has never been
really part of our government. It is not something we really
exercise. But when it really comes down to it, it can be
exercised. It is there. Maybe we have not exercised it.

Mr. Allmand: Within certain limited sphcrcs.

Mr. Little Bear: Nevertheless.

In the same way, we could make the same kind of argument
about the Charter of Rights. What does it Charter of Rights
do? A charter is a restricting instrument. A bill of rights is a
restricting instrument. Basically what a bill of rights states . . .
it is as though the people were saying to their government, we
are giving you these certain powers, but there are certain
things we hold sacred and you cannot violate; and here they
are. We are sending you notice. Here they are. That is
basically what a bill of rights says.

Now, in our bill of rights, in spite of what our Justice
Minister at the time was saying, that we have the best bill of
rights— read the very opening section of the bill of rights,
which says. to paraphrase it: subject to such reasonable
limitations. It is not a true bill of rights ifsomebody can come
along and violate those rights that people hold sacred. It is in
that same kind of context that we look at this whole notion of
parliamentary supremacy and what a real constitution is. We
may be a little bit at a theoretical and esoteric level, but
nevertheless that is really the case.

Mr. Allmand: So when you say in the final sentence of that
paragraph:

ll Canada is going to maintain parliamentary supremacy as
its approach to government, then constitutional discussions
are a futile exercise . ..

—what you are really saying there is that with respect to
relations between the Canadian government and lndians, the
Canadian people cannot continue to insist on the right for
them to legislate ad infinitum with respect to Indians. There
are limits there and they have to respect the jurisdiction of the
Indian people. That is what you are saying.

Mr. Little Bear: Yes, sure.

Mr. Allmand: Good, okay. Now I understand.

Mr. Little Bear: That is why we were referring to the
interpretation of Section 91(24), because right now the
government takes Section 91(24) as more or less a dictatorial
power to legislate with regard… And we are saying, no, if you
look at the BNA Act simply as an administrative piece of
legislation, it was just saying that this level of government as
opposed to that level of government is going to get to deal with
Indians. It does not say “power over”.

Mr. Allmand: Right.

The Acting Chairman (Mr. Chénier): Thank you, Mr.
Allmand.

Ms Jamieson: Mr. Chairman, could I ask one question,
please?

The Acting Chairman (Mr. Chénier): Sure.

Ms Jamieson: You have been talking, and we heard last
night about the mistrust there is between lndian nations and
the Government of Canada and the mess we are in because of
it, and it just gets worse. If we are going to make a fundamen-
tal adjustment in the relations between First Nations and the
Government of Canada, how do you see our doing that and
fostering some sense of trust? And I will tell you that last
night the Haudenosaunec Confederacy people said we need a
UN-type independent third party. Others have said that we
need a third party made up of representatives of appointees of
First Nations in the Government of Canada.

My question is simply this. Since you have spent some time
in your appendix, in exhibits and in this document. comment-
ing on the state of mistrust that we are in. do you see the need
for a third party to straighten this out, and if so, what would
you think the third-party instrument should look like?

Mr. Wells: I will give it a shot.

I think in our position paper and what we have tried to
describe all morning, we are saying that we are quite prepared
to try to negotiate or discuss this notion of a third order of
government. If that principle stands by Canada and ourselves,
then in the discussion itself, in the negotiations themselves, and
I think in the paper. we have described that we may require
UN supervision that would allow for supervising that the
negotiations are done fairly.

Now, in that context—we have already described it in our
position paper—we are prepared, and hopefully you can see us
today. I do not think that tomorrow we would be running to
the summit and saying: you put your missiles in and we are
sovereign. No. that trust that we have been talking about has
to start now if we are ever going to get to some solution to this
whole problem.

So basically what we are saying is that if there is going to be
a renegotiation of this relationship. when we do start, then we
would like to have a third party that would supervise that
things are done fairly on both sides.

I think that is one part of it. Now l think you might have
another notion to that. But that is why we described it in our
position paper and again we are repeating it today.

The Acting Chairman (Mr. Chénier): Thank you.

Mr. Little Bear: The Haudenosaunee are referring to UN
supervision too. Maybe it is because they see it as a body that
can act in a supervisory capacity. But then l think they would
also not oppose any other third-party supervision. In a way the
Canadian government might say, well, why would we want a
third party to come and supervise; we can do it ourselves. But
on the other hand we say. with this long history of mistrust.
and if you have nothing to hide, what is the problem with
third-party supervision?

Ms Jamieson: There are some experiments in this area in
the country at the moment, and they are fascinating; although
the UN model has not proven to be one that . . .

Mr. Little Bear: Right.

Ms Jamieson: —is acceptable to the Canadian government
to date. There are some experiments in that field at the
moment, and I agree with you. there needs to be some third
party.

Thank you, Mr. Chairman.

The Acting Chairman (Mr. Chénier): Mr. Blood.

Mr. Blood: My question touches on the Treaty 7 position
paper that has been submitted. Does this committee have any
kind of say, or any influence, over the department when it
comes to areas of imposing policies, guidelines. or things like
that that really undermine our efforts to . . .

The Acting Chairman (Mr. Chénier): I was going to bring
that up. You have in your hand the paper called Stalemem lo
the Sub-Committee an Indian Self-Government ofthe Home
of Commons, and it is the Treaty No.7 Projects Office. In
there you will find there are four pages that are quite impor-
tant, pages 10 to 14. There are five recommendations there. I
think they touch on what you are saying. They ask the
subcommittee to make representation to the department to
make changes. So what I would suggest to the committee is
that we look at these recommendations and we advise the
Chair on what to do with those at the next public meeting we
have.

Mr. Blood: It was Les who was going to bring that . . . I do
not know if that is okay.

Mr. Healy: Yes, that is okay.

Mr. Allmand: It may be that those recommendations would
have to be referred to the standing committee. Most of us are
on the standing committee. Mr. Penner is also the chairman of
the standing committee. although it is a bigger committee.

The Acting Chairman (Mr. Chénier): Because we do not
have a quorum now, we cannot take a decision. I just wanted
to advise the committee members here to bring it up again at
our next public meeting and then maybe transfer it, whatever
decision we take at that time.

Ms Jamieson: But we will advise the witnesses on whatever
decisions are reached: the clerk will advise them—right?

The Acting Chairman (Mr. Chénier): I want to thank you
very much. It has been a . . . Yes, sir.

Mr. Blood: We have one more comment.

The Acting Chairman (Mr. Chénier): Okay,

Mr. Wells: Just to be on record, without looking or appear-
ing to be looking too presumptious, the Blood Tribe would like
formally to request that we get a chance to review the final
report before it is tabled with the House of Commons. I am
not sure if any other bands have requested it, but I do believe
that if somewhere down the road we are going to trust each
other, these are some of the things such that I think at this
point in time we had better start making sure that both parties
know everything that is going to be discussed and what we will
be dealing with in in the future. Again, it is a request.

The Acting Chairman (Mr. Chénier): That will be a decision
that the committee will have to make as it is drafting the
document, and also when we want to table it. You see, there is
a time problem, in the sense that if we want to have action
fairly fast on Indian self-government, we cannot wait to table
the document some time next spring. However, the committee
will have to decide that.

Ms Jamieson: Mr. Chairman, just a point of information.
This issue has been raised before, and I will raise it again with
the chairman of the committee. My understanding is that we
are not at liberty to do that. I could be wrong, but that is my
understanding. However, we have encouraged—and in fact the
Assembly of First Nations a couple of weeks ago passed a
resolution whereby a process would be set up to enable First
Nations to respond effectively to the report when it comes out.
But as for reading it. that would be great, I would support
that, but I am told that is not possible. But I will take that up
again with the chairman.

Mr. Allmand: It is my understanding that we cannot even
show it to other members of Parliament.

The Acting Chairman (Mr. Chénier): Not until it is tabled.

Mr. Allmand: We can discuss the idea. For example, we
could say . . . Roberta could telephone you or something, or I
could—we are thinking of recommending this. But we could
not actually show you the draft report.

Ms Jamieson: At the same time, even though I am on this
committee as an ex officio member from the AFN, I have
taken great pains to make it very clear that just because I am
on here does not mean any endorsement from the Indian
people of Canada and the Assembly of First Nations if, and
when, the report comes out with my name on it. That means
nothing in terms of what people across Canada are going to
say in response to the report.

Mr. Allmand: By the way, the other side is clear too. We do
not have to go to get the approval of the minister either.

Ms Jamieson: That is right.

Mr. Allmand: He might like us to go and . . .

Ms Jamieson: Why should he see it?

Mr. Allmand: —to have him approve of it beforehand. But
we do not need his approval. He may like it or he may not like
it. He will respond to it.

Mr. Healy: Mr. Chairman, I am not a soothsayer, nor do I
want to cause an uproar amongst the two major parties within
the government. I just want to bring out the fact that should
anything happen in the future—and I am referring specifically
to another election where the parties change hands, where the
information you have gathered and worked so hard to gather
over the last year or so should that happen, that a reeom-
mendation be forwarded to you people that a se ond round of
discussions does take place. in the event that it does.

The Acting Chairman (Mr. Chénier): If we are the same
government. taking over after the next election, we will
continue doing what we are doing, because l think we have
made sure we have discussed . . .

Ms Jamieson: Do not say that.

The Acting Chairman (Mr. Chénier): Even if there is a new
session, we have an understanding, from the leader of the
House, that the mandate will be renewed, immediately, so we
can continue working. If there is another government, whether
it be Mr. Manly’s government or Mr. Seltellenberger’s
government, I do not know: they will have to decide what they
want to do. They may want to reinvent the wheel.

I want to thank you very much, personally, and as a member
of the committee, for the three excellent hours we have spent
together. I am sure that a lot of the things you have submitted
to us in your report you will find incorporated in the report of
the committee to the House. So thank you very much.

Mr. Wells: Mr. Chairman, on behalf of my colleagues, I
would like to thank you people for extending our time I guess
almost an hour over our time limit. But we still believe these
are the types of things that sometimes we have to extend time
for in order to understand each other, So on behalf of Chief
Roy Fox, the Blood Chief and Council, and my witnesses,
thank you very much. We appreciate this second opportunity
to discuss this issue with you. Thank you very much.

The Acting Chairman (Mr. Chénier): The committee will
reconvene at 3.30 o’clock this afternoon in Room 307, in
camera.

APPENDIX “SEND-41”

CONSTITUTION AND BYLAWS OF THE BLOOD INDIAN TRIBE

Preamble

We, the People of the Blood Indian Tribe, in the Blackfoot Country,
in order to maintain ourselves under the guidance of our Creator,
to initiate a sense of responsibility to our People and Community;
to continue to seek better means of survival; to provide for an
orderly and accepted way of carrying on our culture; to allow for
the freedom of expression of our members; and in general, to
promote the rights and welfare of our people under the privileges
and powers we hold as a sovereign people and powers and rights
which are accorded to us by our Creator, do ordain and establish
this constitution and by-laws.

Article I – Territory

The jurisdiction of the People of the Blood Indian Tribe shall
extend to all lands, water, and air within the boundaries of the
Blood Indian Reserve; and to such other lands as may in the future
be added thereto; to all surrendered lands; and to any other lands,
which may from time to time be owned or otherwise come into the
possession of the Blood Indian Tribe.

Article II – Membership

The membership of the Blood Indian Tribe shall consist of:

(a) all persons whose names are on the band list as of the
date this constitution is duly adopted

(b) all persons who are descendants of persons in category (a)
who are born after the adoption of this constitution,
providing they are of at least one-half (1/2) degree Indian
(Blood) blood and are not members of any other Indian
Tribes (in Canada)

(c) such other persons as the Blood Indian Tribe may see fit
to admit to membership pursuant to by-laws of uniform
application, provided that the person is a direct
descendant of a member of the Blood Indian Tribe.

(d) no degree of an outside court determining membership in
the Blood Indian Tribe shall be recognized. The tribal
court shall be the final authority on membership.

(e) The onus of proof on all questions regarding membership
shall be on the person applying for membership or on
the parents or guardians in the case of a minor.

(f) The Tribe shall establish and maintain an up-to-date
roll of all members.

(g) Any member can challenge the addition of a name to the
membership roll.

(h) A person whose name is omitted or deleted from the membership
roll shall be granted a fair hearing.

(i) The Tribal Council can make by-laws and regulations in regard
to all of the above.

Constituencies

The Blood Indian Reserve shall be divided into three (3) voting districts;
North, Central and South. Each district shall be as nearly as possible
the equal of the other two districts in terms of population. There
shall be a district reapportionment every eight (8) years.

Law-Making Branch

The chief governing body of the Blood Tribe shall be the Tribal Council
and shall consist of one (1) Chief and twelve (12) Councilmen, to be
chosen as follows:

(A) Four Councilmen shall be elected via popular vote by the eligible
voters of the Northern District.

(B) Four Councilmen shall be elected via popular vote by the eligible
voters of the Central District.

(C) Four Councilmen shall be elected via popular vote of the eligible
voters of the Southern District.

(D) The Chief shall be elected via popular vote of the eligible voters
of the Blood Indian Reserve.

Advisory Council

There shall be established an Advisory Council to the Tribal Council
consisting of not more than twelve (12) members to be appointed by the
traditional Indian societies (Horn, Magpie, etc.). A member of the
Tribal Council cannot simultaneously serve as a member of the Advisory
Council or vice-versa.

Judiciary

There shall be established a judiciary body whose jurisdiction shall
include the interpretation of the constitution and legislation duly
passed by the Tribal Council, the settlement of legal disputes arising
as a result of this constitution or legislation duly passed by the
Tribal Council, and disputes of a civil, tortious, or criminal nature.

The Judiciary shall consist of three judges to be appointed by the
Advisory Council from among eligible tribal members. Only one judge
shall sit, hear, and pass judgement on any particular case.

A sitting of all three judges shall constitute an appeals court. A
decision by the appeals court is final and cannot be overturned except
by referendum initiated for a particular case.

Powers

1. Chief

The Chief shall be the head executive officer of the Blood Tribe and
the Tribal Council. The following shall apply to the Chief, in
addition to all the powers and duties of a Councilman:

1. No legislation shall be of any force without his endorsement.

2. However, a non-endorsement of legislation by the Chief can be
over-ridden by a five/sixths (5/6), ten/twelfths (10/12)
majority of the Tribal Council.

3. The Chief shall preside at all Tribal Council meetings.

4. The Chief shall be ex-officio member of all Tribal committees.

5. The Chief shall have the equivalent of three (3) votes in
Tribal Council meetings.

6. The Chief shall have only one (1) vote in Tribal Council
comittees.

7. The Chief shall not serve as chairman of any Tribal Council
committee.

8. The term of office for the position of Chief shall be four (4)
years.

2. Council

We, the people of the Blood Indian Tribe, hereby give the power to
the Council, as our duly elected representatives, to pass laws on
the following subjects:

1) Voting and residency for band elections

2) Taxation

3) The establishment of and tenure of band offices and employees

4) Management of natural resources

5) Establishment of, maintenance of, and management of jails

6) Establishment of, maintenance of, and management of hospitals

7) Municipal institutions within the reserve

8) Licensing of shops, saloons, stores, and other business for
purposes of raising revenue for the benefit of the community.

9) Local works

10) Incorporation of companies with band objectives

11) Solemnize and dissolve marriages of members
– adoption

12) Property and civil rights on the reserve

13) Establishment of a police force

14) Imposition of punishment of fine, penalty, imprisonment for
the enforcement of tribal laws made in relation to the powers

15) Legislation, generally, on all matters of a merely local or
private nature, on the reserve.

16) Education, health and welfare

17) Land, water, and air quality except sales of land to outside
interests.

18) Enact regulations pursuant to legislation duly passed by the
council.

19) Establish rules of evidence for the judiciary.

We, the people of the Blood Indian Tribe, reserve the following powers:

1. Alienation and outright sale of land to outside interests
2. Amendment of the constitution

2. Advisory Council

(a) Shall appoint judges for the Tribal Court System pursuant to
rules and regulations passed by the Tribal Council
(b) The Advisory Council shall have no power to initiate legis-
lation nor to veto legislation passed by the Tribal Council.
However, no legislation shall be law without it being sent
to the Advisory Council for advisement purposes. If advice
is negative on any legislation sent to the Advisory Council,
a second and subsequent passage of the legislation shall
suffice to override the negative advisement.

3. Judiciary

– Interpret legislation passed by the Tribal Council

– Interpret the constitution

– Settle legal disputes of a criminal and civil nature arising
from this constitution, laws and regulations passed by the Tribal
Council, and disputes of a tortious nature.

Duties

A. Tribal Council:

It shall be the duty of the Tribal Council, in general, to judicially
exercise their powers for the benefit and welfare of the people of
the Blood Indian Tribe and as much as possible, in such a way to
conform to the Blood Indian culture, more specifically to:

1) Exercise the powers given to it under this constitution

2) Seek and heed the advice of the Advisory Council

3) Make the people aware of the affairs of the tribe

4) Set policy

5) Attend all duly called meetings

6) Establish committees and their composition

7) Establish an administration for the day-to-day affairs of the
tribe

8) Hire employees and establish salary schedules and employee benefits
9) Establish rules and regulations regarding conduct of the council
10) Establish rules and procedures for the conducting of meetings of
the council

B. Advisory Council:

It shall be the duty of the Advisory Council, in general, to advise
the Tribal Council on legislation being considered by that council
in such a way so that legislation, as much as possible, will con-
form to the Blood Indian culture and the wishes and aspirations of
the people of the Blood Indian Reserve and more specifically to:

1) Conduct meetings on a regular basis for purposes of advising
the Tribal Council

2) Establish rules and regulations for the conduct of the Council

3) Establish rules and regulations for the conducting of Advisory
Council meetings

4) Make aware the people of the Blood Indian Tribe the affairs of
the tribe

5) Establish rules and regulations for the conduct of judges

C. Judiciary

It shall be the duty of the judges, in general, to be fair and
impartial in their decisions, and more specifically to:

1) Hold court sessions on a regular basis

2) Establish court rules and procedures

3) Establish rules of evidence

4) Establish an appeals procedure

Elections

1. Tribal Council:

Within thirty (30) days following the approval of this constitution,
a general election shall be held pursuant to an ordinance adopted
by the incumbent council for the office of Chief and twelve (12)
Tribal Council seats. In the first election, the two candidates
within each district receiving the highest number of votes, shall
serve for a four (4) year term. The next two candidates within
each district ranking third (3rd) and fourth (4th) in terms of
votes shall serve for a two (2) year term. Thereafter, a general
election shall be held every two (2) years for the two (2) seats
that become vacant in each district. Once every four (4) years,
a general election shall include an election for the office of
Chief.

Term of Office

1. Tribal Council:

Four years, except those elected to a two-year term in the first
election.

2. Advisory Council:
Serve at the discretion of the society appointing.

3. Judiciary:

Lifetime.

Nominations

A nomination meeting shall be held at least two (2) calendar weeks before
a general election.

Any eligible voter can make one (1) nomination during a nomination
meeting.

Qualifications

1. Tribal Council:

No person shall be elected to a council seat unless that person:

1) Is a member of the Blood Indian Tribe

2) Is twenty-five (25) years of age

3) Has resided on the Blood Indian reserve for one (1) year
prior to the date of a general election

4) Has not been convicted of a felony during his lifetime and
has not been convicted of a misdemeanor for five (5) years
prior to a general election for which he is a candidate

2. Advisory Council:

To be determined according to traditional custom under the practices
of the appointing society.

Judiciary: No person can be appointed a judge unless that person:

a) is an Indian

b) is thirty (30) years of age

c) has not been convicted of a felony

d) has a good command of the English language

e) has a para-legal background

Removal from Office

1. Tribal Council:

a) Any councilman elected, who, during the term for which he or
she is elected, is found guilty by a court of competent juris-
diction of any felony shall automatically forfeit his or her
office.

b) Any councilman elected, who, during the term for which he or
she is elected, is convicted by a court of competent jurisdiction
for a misdemeanor involving moral turpitude, shall automatically
forfeit his or her office.

c) Any councilman, who, during his or her term, is found guilty
of neglect of duty, malfeasance in office, or misconduct
reflecting on the dignity and integrity of the Tribal
Government, may be removed from office by a majority vote of
the Tribal Council and consent of the Advisory Council.
However, before any vote for removal from office is taken,
the person shall be given a written statement of the charges
against him or her, at least five (5) days before the meeting
at which the vote for his dismissal from office is to take
place, and he or she shall have an opportunity to answer any
and all charges. The decision of the Tribal Council and the
Advisory Council shall be final.

2) Advisory Council:

a) Members of the Advisory Council may be removed from office for
the same reasons as a Tribal Councilman may be removed from
office. However, only members of the society appointing him can
remove him from office. The society’s decision shall be final.

3) Judiciary:

a) Judges shall be removed from office if found guilty of any or
all of the reasons that a Tribal Councilman may be removed from
office.

b) Any judge, who, during his or her term, is found guilty by a
court of competent jurisdiction of any felony shall automatically
forfeit his or her office.

c) Any judge, who, during his term is found guilty by a court of
competent jurisdiction of any misdemeanor involving moral
turpitude, shall automatically forfeit his or her office.

d) Any judge, who, during his or her term, is found guilty of
neglect of duty, malfeasance in office, or misconduct reflecting
on the integrity of the Tribal Court may be removed from office
by a majority vote of the Tribal Council and Advisory Council.
However, before any vote for removal from office is taken, the
person shall be given a written statement of the charges against
him or her, at least five (5) days prior to the meeting at which
the vote for his or her dismissal is to take place, and he or
she shall have an opportunity to answer any or all charges. The
decision of the Tribal Council and the Advisory Council shall be
final.

Vacancies

1. Tribal Council:

In the event of a vacancy, for any cause, in the membership of the
Tribal Council, the unexpired term corresponding to the vacancy shall
be filled via a by-election pursuant to election rules and regulations,
if the unexpired term is six (6) months or more before a scheduled
general election. If the unexpired term is less than six (6) months,
the seat shall remain vacant for the remainder of the term.

2. Advisory Council:

In the event of a vacancy, for any cause, in the membership of the
Advisory Council, the society appointing the member shall fill the
vacancy via traditional custom pursuant to the practices of the
society.

3. Judiciary:

In the event of a vacancy, for any cause, on the court bench, the
Advisory Council shall appoint another judge to fill the vacancy.

Bill of Rights

1. No person shall be deprived of life, liberty or property, or be
expelled from the Blood Indian Tribe without due process of law.

2. The right of petition and of members to peacefully assemble shall
never be abridged.

3. Every member shall have the right to freely speak, write, and publish
on any subject, however, each member is responsible for the abuse of
the right.

4. No member shall be disturbed in his private affairs or his home
invaded without the authority of law.

5. No law granting irrevocably any privilege, franchise, or immunity
shall be enacted.

6. No person shall be compelled in any criminal case to give evidence
against himself, or to be twice put in jeopardy for the same offence.

7. The liberty of conscience secured by the provisions of this constit-
ution and by-laws shall not be so construed as to excuse acts of
licentiousness, or to justify practices inconsistent with the peace
and safety of the Blood Indian Tribe. Persons who are not members
of the Blood Indian Tribe may not act as missionaries or ministers
of religion within the boundaries of the Blood Indian Territory
except upon proof satisfactory to the Tribal Council that they are of
good moral character and that their presence will not disturb peace
and good order. No religious qualifications shall be required for any
public office or employment, nor shall any person be incompetent as a
witness or juror in consequence of his opinion on matters of religion
nor be questioned regarding his religious beliefs in any court of
justice to affect the weight of his testimony.

8. Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishment inflicted.

9. Private property shall not be taken except for public purposes. Just
compensation must be paid to the owner of private property taken for
public purposes.

10. All persons charged with crime shall be accorded bail providing they
post sufficient surety.

11. In prosecutions for offenses against the Blood Indian Tribe, the
accused shall have the right to appear and defend in person and/or to
have a member of the Blood Indian Tribe act as counsel. An accused
shall have the right to be informed of the nature and cause of the
accusation against him, to testify in his own behalf, and to have a
speedy public trial.

12. No bill of attainder, expost – facto law, or law impairing the oblig-
stion of a contract shall ever be enacted.

13. The enumeration in this constitution of certain rights shall not be
interpreted in such a way to deny other rights retained by the people.

Amendments

This constitution and by-laws may be amended by a majority vote of the
eligible voters of the Blood Indian Reserve via referendum set up for that
purpose. A referendum may be set up to coincide with a Chief and Tribal
Council Election. Notification of a constitutional amendment must be
given at least three (3) months prior to a referendum. Any member of the
Blood Indian Tribe may initiate a proposed amendment, however, one must
have three (3) hundred (300) supporters via petition in order for a
referendum to be called by the Tribal Council. A petition for a constit-
utional amendment shall be addressed and directed to the Chief and Tribal
Council.

Saving-Clause

All prior laws, ordinances, resolutions, and by-laws enacted by the
Government of Canada, and the Blood Indian Tribe shall remain in force
and effect to the extent that they are not inconsistent with this
constitution and by-laws until such time as they might be duly and
officially rescinded or repealed pursuant to the provisions of this
constitution and by-laws. The incumbent Chief and Tribal Council shall
remain in office until their successors elected pursuant to this con-
stitution and by-laws shall be installed in office.

Adoption of Constitution and By-Laws

This constitution and by-laws when adopted by a majority of the eligible
voters of the Blood Indian Tribe voting via a referendum instituted
specifically for the purpose of voting on the adoption of this constitution,
shall come into force thirty (30) days after the referendum.

APPENDIX “SEND-42”

D R A F T

April 05, 1982

CONSULTANT’S REPORT RE: INDIAN
BAND GOVERNMENT LEGISLATION

TO: MR. J.C. TAIT
Assistant Deputy Minister
Corporate Policy
Department of Indian Affairs and
Northern Development

FROM: JOE MATHIAS, LEROY LITTLEBEAR, ANDREW F. RICKARD
AND HARRY S. LaFORME

1 Introduction

To begin, we wish to reemphasize our position that
Indian Band Government Legislation must incorporate the
following ten features:

(a) Government’s commitment to political and con-
stitutional self-determination for Indian
people.

(b) Government’s affirmation of the aboriginal
and treaty rights of Indian people to self-
determination and social justice.

(c) Government’s recognition of its special rela-
tionship with Indian people and its historic
and legal trust responsibilities to them.

(d) Affirmation of the right of Indian people to
their own culture within Canadian society.

(e) Affirmation of the right of all Indian
Bands to define and express their Indianness.

(f) Affirmation of the right of all Indian Bands
to make their own decisions within their own
communities regarding cultural, proprietary,
regulatory and judicial matters.

(g) Recognition of the need within Indian commun-
ities for adequate and consistent funding of
Indian Government institutions and services.

(h) Flexibility within Band Government Legisla-
tion to accommodate the different needs of
various Bands and the different solutions
that will work for each.

(i) Recognition of the right of each Band Govern-
ment to determine what powers it will exercise
and when they will be assumed.

(j) Recognition of the right of all Indian Bands
to participate at all stages of the Legisla-
tive process as it affects Indian Band Govern-
ment.

It is from these premises that we submit this report
for the purpose of improving the current Discussion Paper
on Indian Band Government Legislation and suggesting strate-
gies for communication, consultation and implementation.

In its present form, the Discussion Paper serves
the double function of explaining and defining Indian
Band Government Legislation. It is our understanding
that work is now being done to translate these legisla-
tive proposals into legislative form. It is therefore
our view that the Discussion Paper must now focus on an
explanation of the origins, purposes, concepts and stra-
tegies relating to the proposal and de-emphasize the
actual provision of the legislation. It is with this in
mind that the general remarks and recommendations are set
out in the next section.

II General Remarks

1. Origins of the Proposal

If the function of the Discussion Paper is to be
an explanatory one then the proposal must be explained in
the context of a process. Bands will want to know the
source of the proposal, the identity of its sponsors, the
identity of the Bands it is intended to affect and the
rational for its appearance at this time and in this form.

One of the problems of the proposal in its present
form is that in too many areas it resembles the present
provisions of the Indian Act too closely. The Discussion
Paper should point out in a positive way that government is
adopting a new attitude towards Indian Band Government and
that the proposal does contain new powers and greater
possibilities than the old Act. It is assumed that the
new legislation will demonstrate these features.

To the extent that the origins of the proposal
are included in the Discussion Paper, these appear to
be based on identified inadequecies with the present
Act and the frustration of certain entrepreneurial Bands
in exploiting their present resources within its frame-
work. This does not suggest that government has changed
its attitude or that anything particularly new is being
proposed. It does suggest that a few favoured Bands are
to received favoured treatment without the necessity of
wholesale revisions to the Indian Act.

A more positive approach would emphasize the close
relation of the proposal with the constitutional recogni-
tion of aboriginal and treaty rights. Within the Indian
community, self-determination is widely perceived as an
aboriginal right fortified by the treaties. Similarly,
the federal legislative power over Indians and land
reserved for the Indians should be emphasized as a power
which enables Parliament to establish a legislative frame-
work for self-governing Indian communities.

At the legislative level, the Discussion Paper
should explain that the present Indian Act and its prede-
cessors have established a very narrow framework within
which Indian governments can function. In contrast to
this the proposal incorporates many new powers, a much
broader framework and an attitude on the part of govern-
ment which is markedly different from its traditional
approach.

We believe that such an explanation of the pro-
posal would be well received within the Indian community
and within Canadian society generally. Again, however,
we would caution that the provisions of the legislation
must bear witness to the explanation of them. No explan-
ation will suffice if the legislation falls short of it.

It is a simple fact of the government-Indian
relationship that any initiative taken by government will
be viewed with great suspicion and scepticism by Indians.
The Discussion Paper and the legislation itself must over-
come that natural and justifiable suspicion. This will
be a difficult task where the legislation will, in fact,
create a whole new class of “super-Bands” who operate
under a separate statute. Those Bands who are not expect-
ed to come within the new legislation in the forseeable
future will need assurance that the proposals are ulti-
mately intended to benefit them as well as the “favoured
few”. Explaining the proposal in terms of a process and
in terms of an attitudinal change is, in our view, the
best means of assuring these Bands that they are not
being frozen out.

At the same time, all Bands will wonder why the
legislation is being brought forward in its present form
and not in any of the alternative forms which come
readily to mind. In an earlier paper, we identified the
following as alternatives:

(i) retention of the present Act;

(ii) revision of the present Act;

(iii) awaiting development of Indian proposals;

(iv) Indian Government Legislation.

An effective explanation of the present proposal
will indicate why the last alternative has been chosen
and the others have not. It should be pointed out that
since the national consultations on the Indian Act in
the mid 1960’s, several mechanisms have been put in place
for the development of new Indian Act revisions. These,
together with the reasons for their failure, should be
explained at some length. Even so, where the present
proposal incorporates suggestions which were made in the
context of these earlier attempts, this should’be empha-
sized as well.

Also, where the new legislation will address
itself to problems which are generally familiar to Bands
these should be used by way of example to demonstrate
that the proposal is rooted in an Indian reality.

2. Purposes of the Proposal

The Discussion Paper will have to answer the
basic question Bands will ask: what is the basic pur-
pose of the Indian Band Government Legislation? Differ-
ent Bands will pose this question in different terms.
Bands which expect to be governed by the new legislation
will want to know what powers, rights and benefits they
will obtain that they do not presently enjoy or could
not enjoy within within the scheme of the present Act.
Bands which suspect they will be excluded from the new
legislation will want to know what their legal, finan-
cial and political position is to be once the new legis-
lation is in place.

Ideally, the new legislation would recognize that
all Bands have at least some problems under the present
Act and that some remedial work is needed across the
board. There should, therefore, be something in the pro-
posal for every Band in the country. There are two pro-
blems with such an approach. One is that universal
application would be tantamount to amendment of the pre-
sent Act, an approach which has been rejected. The other
is that the present grouping of Core Powers makes it
unlikely that all Bands could or would want to come under
the new legislation.

Bands can also be expected to look behind the
proposal to see whether or not government is pursuing
a hidden agenda. Many Bands will, for example, be sus-
picious of the broad powers to be granted to Bands per-
mitting non-Indians occupation of Reserve lands. This
may well be seen as government’s withdrawing from its
most traditional and desirable responsibility. The
Discussion Paper must focus on this concern and deal with
it effectively.

We recommend that this be done by identifying,
again by way of example, the Bands who have demanded
these powers, the reasons for these demands and the acti-
vities which such Bands have and plan to engage in. Cer-
tainly a measure of reassurance can be given on the basis
of the experience of these Bands.

The other point which should be emphasized in rela-
tion to Reserve lands is that lands, even under the new
legislation, will not be able to permanently alienate
Reserve lands. It is our feeling that if this point is
effectively made and the possibilities now being exploited
by some Bands are put forward in a positive light, much of
this concern about the integrity of Reserve lands will
be answered.

Another point dealing with the purposes of the pro-
posal is that there must be within the new legislation sig-
nificant differences and improvements in comparison with
the present Act. The Discussion Paper must also empha-
size these in order to demonstrate that the proposal is
a sincere attempt to transfer maximum decision-making
out of the Department and in to the Councils of Band
Governments. Obviously, if Bands suspect that this is
not the true purpose of the proposal, the Discussion
Paper and the legislation will not survive the consulta-
tion phase.

Finally, the Discussion Paper must address the con-
cerns of Bands who will, in their own perception, be left
behind. This group includes the vast majority of Bands
and they will want to know and are entitled to know where
they will stand legally, financially and in terms of
government’s priorities after a small minority of Bands
move under the new legislation. Their immediate concern
will be that the new legislation will create a “goodguys-
badguys” situation with the former being brought under the
new Act and receiving priority on new programs and train-
ing funds. In our view this is a legitimate concern that
the Discussion Paper must address. Our recommendation is
that it forecast and commit funds for Bands which will not
come under the new legislation as well as for those that
will. If this is not done there will be significant oppos-
ition to the proposal from most of the Bands in the country.

In general terms it is our recommendation that
the Discussion Paper emphasize the origins and purposes
of the proposal to a far greater extent than previously
and in a much more positve way. If the proposal is to
receive broad acceptance within the Indian community,
Bands must be fully informed as to the origins and pur-
poses of the new legislation and the legislation itself
must honestly reflect the explanations of it.

3. Concepts in the Proposal

During the past year or so that we have been in-
volved with the Discussion Paper and the legislative
proposals, it has become apparent to us that Bands under
the new legislation are intended to be corporations with
the Band Councils sitting as boards of directors. Many
of the detailed proposals bear out this conclusion. Our
general comment is that the corporation concept is new
in the proposal and is, in many respects, a significant
departure from the present Act. In many respects, we
support these changes but it must be said that corporate
democracy is not political democracy.

While we do not propose for present purposes to
discuss the relative merits of corporate and other forms
of organization, we do feel that the choice of a corpor-
ate model is a deliberate one that bears discussion and
explanation. It is therefore our recommendation that
the Discussion Paper emphasize this conceptual aspect
and explain which provisions conform to the corporate
model, why that model is appropriate for the purposes
of those provisions, and why, in other respects, differ-
ent concepts were used.

It is obvious that Bands will be reluctant to
assume a new legal identity unless the implications of
that choice are clearly explained to them and, further,
that they are satisfied that the concepts in play are
the best for the purpose.

At the same time, Bands which will remain under
the present Act will went further clarification of their
position under that statute and this might effectively
be done by a detailed comparision of the new with the
old.

We also recommend that a further comparision be
set out in the Discussion Paper illustrating the features
of the proposed Band government concept and comparing
them to some of the alternative concepts which might have
been used but were not. The intent of this recommenda-
tion is to assist Bands in deciding whether the model
that is used in the legislation is, in fact, the optimum
model.

Our second conceptual concern deals with the
enumeration of Core Powers. In particular we wish to
emphasize that one implication of the proposal is to
make it easier for Bands to put Indian lands in non-
Indian hands without the historical protective proce-
dures. This, in turn, is only one aspect of the entire
land regime. The remaining features are, in most cases,
adaptations of the regime under the present Act. It
must be noted that even many of the Bands which can
expect to move under the new legislation do not use the
Indian Act allotment provisions in distributing Reserve
land. To this group, the new legislative land regime
will not be any more attractive than the old and may,
in fact, dissuade them from participating in the propos-
al.

Our recommendation is that the Discussion Paper
make a clear distinction between those powers which are
essential to the new legal identity Bands are to have
and those powers which, however desirable, are not essen-
tial. Both the Discussion Paper and the new legislation
will be more acceptable, in our view, if the land regime
is not made “Core”.

To summarize, our recommendation in general terms
is that the Discussion Paper focus on the concepts of
Band government which will find their way into the new
legislation, compare these with the concepts used in
the present Act, and also compare these with other con-
cepts which might have been used but were not. Again,
if the Discussion Paper does not assist Bands in concep-
tualizing the new proposals, they are unlikely to opt
for them.

4. Omissions from the Proposal

Just as there have been conceptual choices made
in framing the proposal, there have also been conscious
choices made in omitting certain aspects which we know
to be of immediate concern to Bands. We feel that the
Discussion Paper would be more effective if it included
some discussion of these omissions either for the purpose
of possible inclusion in the legislation or simply for
the purpose of explaining why these aspects are not being
dealt with at the present time.

One of these omissions, which we have already noted,
is the failure to link the proposal with the new constitu-
tion. we assume that our earlier recommendation in this
regard will be adopted and that no further discussion
need be made of this in the context of an omission.

Another glaring omission is the failure of the pro-
posal to deal with the establishment of tribal judicial
systems. we recommend that there be some discussion
of this in the Discussion Paper and further recommend
that some provision be made in the proposal for tribal
judicial systems even if this is only an enabling pro-
vision permitting the Governor-in-Council to make
appointments and regulations.

Another consideration which is, in our view, not
dealt with adequately is the area of appeal mechanism.
we recommend that the Discussion Paper focus on this
issue and set out for purposes of consultation some of
the possibilities for appeals by Bands and by Band mem-
bers.

Another feature of the Discussion Paper which
concerns us throughout is the lack of discussion of alter-
natives. This is a point we have already made several
times and wish to emphasize it here as a serious omission.
while it is certainly simpler to describe the new sys-
tem without elaboration, it is our view that Bands will
not find such a bare description acceptable. We feel
that the consultation process will be futile unless alter-
natives are clearly set out for purposes of discussion
and consideration.

Another issue which Bands consider vital is the
taxation of property and income. While the proposal
appears to continue the present exemption policy, it
is certain that Bands will want that policy extended
and will want this done in the context of new Band Govern-
ment Legislation. For this reason, we recommend that the
Discussion Paper include, under a separate heading, a
discussion of Indian Taxation.

As a final general remark under this heading, the
Discussion Paper does not focus on the issue of extra-
territoriality. Bands will not, as we understand it, have
powers beyond the Reserve boundaries except as to the
determination of membership. There are, however, other
areas in which Bands may be concerned to exercise some
authority. An example of this might be the designation of
hunting areas for Band members where provincial legisla-
tion does not apply. Other areas might be counselling and
social services for Band members off the Reserve and the
designation of Band Councils as “suitable persons” for the
purpose of supervising delinquent children and other pro-
bationers. we do not expect such provisions to be includ-
ed in the proposal at this time but we do recommend that
the issue of territorial and extra-territorial jurisdic-
tion be discussed.

Some of the points made in this section relate to
omissions which can be easily remedied, others relate to
omissions which were consciously made. It is our view
that some of these latter omissions are as significant
as some of the inclusions and that the Discussion Paper
should recognize this fact.

5. Strategic Considerations

In our earlier discussions and correspondence,
we have already agreed that the best way for the federal
government to take the initiative in advancing these pro-
posals is to introduce draft legislation and table a
Discussion Paper at the same time to explain the legisla-
tion and facilitate consultation about it.

We do, however, wish to point out that such a pro-
cedure will create concern amongst Indian Bands and Asso-
ciations. They will not, and you should not, forget the
furor created by a well-known white Paper which is, of
course, only a preliminary step to legislation. We there-
fore recommend that the Minister advise Bands and Asso-
ciations in the very near future that this procedure has
been decided upon and explain the reasons for it and the
steps involved. suggestions and comments should be active-
ly solicited.

Similarly, we feel that the Discussion Paper should
also emphasize the procedural aspects of bringing the
legislation into final form and passing it into law. Few
Canadians outside of Ottawa are familiar with parlia-
mentary process in even the most general terms and, as
always, what is not known is suspect.

Once the draft legislation and the Discussion
Paper have been distributed, the present plan appears
to be that they will be referred either to an indepen-
dent commission for study and consultation or to the
parliamentary Standing Committee on Indian Affairs and
Northern Development. It is our present feeling that
these two entities should not be considered as alterna-
tives but, rather, that both be assigned to the task in
the following way.

What we envisage is an independent commission
composed largely of Indians and non-government persons
which would perform the consultation role across the
country and report, as a commission, to the Standing
Committee. At the same time, Bands and Associations
will be able to make submissions to the Standing Commi-
tee whether or not they have already appeared before the
commission.

This may seem to be a duplication of effort, but
we are confident that such a procedure would in fact be
faster, fairer and cheaper than mounting a parliamentary
road show. Certainly many Bands and Associations will
take advantage of the opportunity to have two kicks at
the cat but this, in our view, is an advantage, not a
disadvantage.

We hope that serious consideration will be given
to this suggestion and, if it is found to have merit,
the process should be set out in the Discussion Paper.
You may rely on our support for this type of support
should you choose to adopt it.

Patriation of the Constitution is another strate-
gic consideration that cannot be ignored. At the pres-
ent time, many Bands continue to press legal argument
in the British Courts; most take a jaundiced view of the
entire process. Even so, it is encumbent on government
to convene a First Minister’s conference and to secure
significant Indian input. There is, therefore, a danger
that the Indian Band Government Legislation will be seen
as separate from the constitutional exercise and untime-
ly in light of it. This danger may in part be offset if
our earlier recommendation is followed by tying the pro-
posal to the constitutional recognition of aboriginal and
treaty rights.

The other side of the coin is that there is a real
danger many Bands and Associations will boycott the consti-
tutional process and that, if the proposal is to closely
linked to that process, it will be rejected as well.
There is probably no safe course between these two dan-
gers. we have, however, carefully considered both and
feel that the constitutional linkage that we recommend
will do more for the proposal in the long run than a
constitutional boycott might do to it. Therefore we
again recommend strongly that Indian Band Government Leg-
islation be presented as a recognition of the constitution-
al rights of Indian people to self-determination.

This solution, of course, creates a further danger.
If Indian Band Government is a constitutional right, it
is the right of all Bands and not merely of a favoured
few. In our view, the Discussion Paper must present a
strategy for the eventual participation of all Bands in
the benefits of the proposed legislation. This implies
planning and forecasting over the longer term, plus com-
prehensive participation for smaller Bands, financial
commitments to all Bands and national consultations with
respect to the proposal.

We recognize that this approach means advancing on
a broader front than presently contemplated but we strong-
ly recommend that this decision be taken and incorporated
into the Discussion Paper. Otherwise, we feel that broad-
ly-based support for the proposal within the Indian commun-
ity will be impossible to obtain within the foreseeable
future.

III Specific Comments and Recommendationi

In this section of the report we propose to go
through the Discussion Paper in order and make specific
comments and recommendations on the points which we feel
will be of concern to Bands. we will also make comments
and suggestions as to structures and functions and,
where appropriate, suggest alternatives which might be
put forward within the overall framework of the propos-
als.

1. The immediate problem with the introductory parts
of the Discussion Paper is that treaty rights and the
Minister’s special responsibility are referred in nega-
tive terms: the legislation does not derogate nor deny.
Such wording cannot be expected to reassure Bands; quite
the contrary, it puts them on notice and raises suspicion.
what Bands will be looking for is a positive affirmation
of aboriginal and treaty rights and of the trust relation-
ship. Furthermore, Bands will not be looking for an
assurance that they will not lose anything in the new
legislation. They will be looking for significant gains
in their control of treaty rights and increased recogni-
tion of government’s trust responsibilities.

As an example of the approach Bands will want to
see, we refer to treaty, hunting and fishing rights, many
of which are beyond the reach of provincial regulation.
Bands will want the power under the new legislation to
regulate the harvesting activities of Band members des-
pite provincial law and, in addition, will argue for the
right to oust federal law where they deem this to be
inconsistent with the relevant treaty. There is also an
aspect of extra-territoriality to this issue which was
referred to earlier in this paper.

On the point of the Minister’s trust responsibili-
ties, there should a clear enumeration of the powers that
will be reserved to the Minister and a designation of
those powers for which he is politically responsible to
parliament and those for which he will be responsible to
the Indian people themselves should those powers be wrong-
fully exercised.

2. We are concerned about the process of entering in
to the new legislation. The Discussion Paper takes the
approach that legislation will define an “eligible Band
voter”, that 50 per cent of such voters must authorize
the Band Council to proceed with the drafting of a Band
Constitution, and that 66 2/3 per cent of such voters would
be required to approve the Band Constitutution before the
Minister recommends it to the Governor-in-Council. This, to
us, seems unwieldy.

A far simpler approach would be to have the Band
Council pass a resolution asking that the Band be brought
within the new legislation. Such a resolution would
designate for that purpose those numbers of the Band
whom the Band considers to be eligible Band voters. If
such resolution is acceptable to the Minister, work then
begins on the drafting of a Band Constitution which ulti-
mately will be presented to the eligible Band voters, 50
per cent of whom must approve it before it is recommended
to the Governor-in-Council. The reason we suggest a 50
per cent majority for this purpose is simply that, on a
national basis, nearly half of the existing Band member-
ship does not live on the Reserve and may not be willing
to return for voting purposes. There is, of course,
another way of dealing with this particular problem and
that would involve voting by mail or otherwise, which
creates the additional difficulty of not knowing whether
or not such a voter has had the opportunity to become
fully familiar with the implications of the Band Constitu-
tion.

Another consideration on this point would be in
relation to the Band regime. While we have already recom-
mended that this should not be compulsory, there should be
a determination whether eligible Band voters actually
resident on the Reserve should carry more weight in the
adoption of a new land regime than absentees. There is
no perfect answer to this problem. Our recommendation
is that Bands be supplied with sample resolutions for
the purpose of coming within the new statute and that
these samples contain a generous variety of special major-
ity and eligible Band voter provisions to ensure the
Bands have, and know they have, considerable freedom in
deciding how they can bring themselves into the new
regime.

3. Bands wanting to come within the new legislation
would be required to submit evidence that they meet
certain criteria. We feel that Bands will be detered from
engaging in such an exercise with the Minister, particu-
larly as there appears to be no means by which they can
appeal his determination.

This is certainly an area where the Indian Govern-
ment Authority could play a role in performing an indepen-
dant audit of Band administration and reporting to the
Minister. This would relieve the Band from the onus of
proving its own competence. At the same time, it will
keep the Minister out of the Band office. In fact, the
proposal suggests that the Minister would have greater
control over access to the new legislation than he does
to various local government programs under the present
Act.

We further recommend that the legislation and
the Discussion Paper should not emphasize the notion
of criteria for access. What should be set out are
certain criteria by which the Minister is permitted to
refuse an application for access. These should be
exhaustive and if a Band is to be denied access it must
be upon the basis of one or more of these stated criteria.
Such a procedure would also necessitate, as the
present proposal only suggests, that there must be some
forum to which the Minister’s decision can be appealed
by Bands who do wish to come within the new legislative
scheme of Band government.

4. The referendum procedure suggested in the Discus-
sion Paper strikes us as being as more than a little
redundant since, subject to those details which the Band
Council itself would be free to determine, there is a
perfectly adequate set of regulations already in place
for Band referenda.

There is one further point to be made in relation
to referendums, that being that Bands will be called
upon to vote in their constitution; this is a procedure
that was not found to be necessary or desirable in the
case of their fellow citizens whose constitution was
recently patriated.

5. It appears that once a Band constitution is
approved by Order-in-Council, that instrument will
govern the relation between Band members and their Band
government. We feel strongly that its effect should
also be to govern the relationship between the Band
government and the Government of Canada as well.

Secondly, it appears that the effect of the Band
constitution would be to take the affairs of the Band
out of the present Act and bring them within the sole
jurisdiction of Indian Band Government Legislation.
The one exception noted in the Discussion Paper is that
membership provisions would continue to apply. This,
to us, seems inconsistent with the basic approach of
the proposal, one of the fundamental aspects of which is
that Bands will control their own membership. Our
recommendation is that the Band constitution set out the
rules for membership in that particular Band and that
no further reference be had to the existing Act.

The greater potential for abuse in this area is
the possibility that Bands may, for various reasons,
choose to strike members from the roles and we feel that
such protection as is deemed necessary for Band members
should be included in the new legislation and not by way
of reference to the old.

Structurally, there is another possible function
here for the Indian Government Authority to hear peti-
tions from individual Indians relating to decisions
made by Bands with respect to membership. Whether or
not that Authority would make the ultimate decision or
recommend a finding to the Minister, there should in any
event be recourse to the courts.

As an alternative to the Indian Government Author-
ity reviewing membership decisions, the Canadian Human
Rights Commission could discharge this function and this
possibility should be set out in the Discussion Paper.

There should also be a clear and unequivocal pro-
vision in the new legislation to the effect that a member
of a Band operating under that statute is for all pur-
poses an Indian. The purpose of this provision would be
to ensure that the protections of other federal statutes
and regulations, etc., which are available to Indians
extend to all Band members.

6. There are several points to be made in relation to Band
constitutions. Perhaps the first of these is that many
Bands will not find the choice of the term “constitution”
felicitous. Also, the word constitution implies a degree
of permanence which may be misleading as the new legislation
is fleshed out by regulation and, in due course, legislative
amendments are brought in to play. Our recommendation
is that another term be selected.

The next concern we have is that many of the
enumerated provisions that are to go into the Band consti-
tution, a document to be negotiated by the Band in terms
of its own preferences, do not really appear to be
negotiable. For example, where it is suggested that
provision shall be made for conflicts of interest on the
Band Council, we do not really believe that there is any
room for negotiation; it is obvious to us that a Band
Councillor in such a situation must declare the conflict
and refrain from voting and we are sure that this is what
government has in mind. Our recommendation is that where
such provisions are indicated in the Discussion Paper as
being included in the Band constitution that these in
fact be withdrawn and simply placed in an appropriate spot
in the legislation or placed within the by-law making
powers of the newly-constituted Council. In this context,
we would also note that many of the procedures and powers
set out here, whether or not they are truly negotiable,
are exercised by Bands in customary fashion.

One area in which there appears to be considerable
conceptual confusion is in the suggestion that Band
members could take a representative action against a Band
government for breach of trust in the expenditure of
Band funds. It is not clear in the Discussion Paper
that the Band as a whole and the Band government have
separate legal identities or that the one is the trustee
for the other. Even if this is to be the case, the
action, if it is to be for breach of trust, should be
against the members of the Band government and not
against the government itself. We would also point out
that representative actions tend to be very complex and
are not widely encouraged in Canadian law. For this
reason, it may be best to simply give a Band member a
right of action and not confuse the issue by suggesting
that it is a representative action.

Another conceptual point, if, as we have earlier
suggested, the Band is to become a corporation, is to
consider granting individual Band members the right to
pursue actions on behalf of the Band as a whole where
the Band government is unwilling to do so. In corporate
law, this is known as a derivative action: the share-
holders right of action derives from the unexercised
right of action of the corporation itself.

In our view, once the conceptual difficulties of
Band/corporate legal identity are worked out, it may well
become apparent that the Band constitution is not as
extensive or as vital a document as currently protrayed.
For this reason, coupled with our earlier concern that
the provisions should be available to all Bands, we feel
that serious consideration should be given to incorpor-
ating the proposals within the framework of the present
Indian Act. This might prove more acceptable to Bands
on the basis that the framework is more familiar, the
alternatives are much clearer, it is not so readily
apparent that some Bands will be given preferential
treatment, and because the same type of approach already
exists between sections 81 and 83 of the present Act.

In terms of the acceptability of the proposals,
incorporation of them into the present Act would also
have the desirable effect of not having to re-legislate
provisions which Bands now regard as petty; for example,
the control and regulation of bee-keeping. These will
not be strong selling points if Bands are being told that
their powers will be considerably enhanced under new and
separate legislation.

Before this determination is actually made, we
further recommend that a working group distill the propos-
al in terms of an amendment to the present Indian Act in
order to identify just how limited or how extensive such
amendments would have to be and to examine the issue of
whether or not these would be more or less acceptable to
Bands.

7. with respect to Indian Band Government powers and
responsibilities, we have already recommended that the
Band powers now identified as Core Power be re-examined
to make the legislation available to far more Bands than
would otherwise be the case.

At several points in the enumeration of these
powers there is reference to general legislation in effect
in the provinces, a term which most Bands will find
offensive and which, unless it is impossible to do so,
should be deleted. Many Bands, in fact, will argue that
there should be a provision excluding all provincial law
except such laws as may be referentially incorporated by
Band by-law. This is a difficult legal question but, as
a political matter, and as a question of approach, the
Discussion Paper should lean more towards the latter posi-
tion than the former.

We also note that the Band is to have the power to
provide education services on the Reserve for the benefit
of resident Band members. That power is too narrowly
defined in two respects. First if the Band is to operate
schools on the Reserve, those schools should be open to
all residents on the Reserve, not simply Band members.

Secondly, there is no apparent reason why the Band could
not operate a school outside the Reserve as its own enter-
prise or in conjunction with other educational authori-
ties. This is simply another aspect of the issue we
have already pointed out dealing with the extra-territor-
iality of Band jurisdiction not only over education, but
also over social services and hunting and fishing. We
believe that such jurisdiction should be conferred and
that their omission may seriously compromise the accept-
ability of the proposals.

8. The next section of the Discussion Paper deals with
land management. We have already expressed our concern
that many Bands, including many of the Bands who would be
expected to participate under the new legislation, histor-
ically and currently resist the legislative imposition of
a land regime. Consideration should therefore be given to
making the proposed land regime optional for Bands operat-
ing under the new statute. It is our view that some Bands
at least will refuse to adopt the proposal if they cannot
retain their customary jurisdiction over the allotment of
reserved lands.

We note that as part of the new land regime it is
proposed that lands which would have been governed by sec-
tion 36 of the present Act will not be brought within the
new legislation. This leaves the question of whether,
notwithstanding the earlier proposal that Bands under
the new legislation have no recourse to the present Act,
there would be any federal legislation dealing with those
lands. Furthermore, as a political matter, the proposal
will be unacceptable to many Bands and particularly so to
many Bands who could be expected to come under the new
Act and who are presently relying on section 36 provisions
to add lands to their present Reserves. we recognize that
there are federal-provincial concerns about such legisla-
tion; there is, however, little sympathy for these within
the Indian community.

The Discussion Paper also suggests that Bands will
have the necessary legal status to maintain certain legal
actions with regard to Reserve lands. There is some ques-
tion in our minds whether or not this is not a power that
should be available to all Bands whether or not they adopt
the land regime under the new Legislation. In other words,
this power of the Band should not be tied to the land regime
but should be generally available to all Bands under the
new statute or otherwise. In addition to this consideration,
we would also refer to our earlier comments about the
possibility of Band members initiating legal actions on behalf
of the Band where the Band Council refuses to do so. ( A
derivative action.)

In our view, the suggestion that there be a new
designation for Reserve lands under the new Act will not
be well received, nor is it apparent to us that there is
any need for a new designation. We recommend that further
consideration be given to this point.

Many Bands will also be concerned with the removal
of the surrender provisions of the present Act. Histori-
cally, these provisions protected the interests of Band
members from the powers of their Council and further pro-
tected the Band from improper transactions by government
acting on the surrender. Again, we recognize that many
Bands have requested precisely this kind of legislation to
enable them to develope their lands in inovative ways. We
do not mean to suggest that there is anything improper with
those Bands obtaining their wishes but we do feel obliged
to point out that there are other Bands who will take other
views and this, if anything, is an argument in favour of
making the land regime optional.

There is also an undetermined line between the inter-
ests in Reserve land that Bands could grant and those which
require the assent of the Minister. It is apparent that
permanent alienation does not refer simply to sale. Bands
will want to know where that line is to be drawn and whether
or not they can have any input into what kinds of transactions
will be deemed to be permanent alienations. we recommend
that the Discussion Paper focus on this issue and suggest
the parameters within which Bands can.determine the
limits of their own powers of alienation. on the same
point, we would refer to our earlier comments about the
inclusion of a referendum procedure in Band constitutions.
Again, we feel this to be redundant and unnecessary.

Turning to the powers of the Minister to cause
Letters Patent to issue for permanent alienation of Reserve
lands, it is our view that it should be made clear that
the Minister has no power or descretion to refuse to take
this action. If this is not to be the case, the Discus-
sion Paper should set out the terms and conditions by which
the Minister will exercise his powers. The Discussion
Paper should also make clear whether or not the Minister is
to retain any of his additional trust responsibilities in
relation to permanent dispositions of Reserve land. we
should point out that many Bands will want the Minister to
retain those responsibilities in such cases and will want
him to be accountable to them for his action.

With respect to the permanent alienation of Reserve
lands, we feel that this is another area where there is a
role to be played by the Indian Government Authority both
in advising the Band, if such advice is requested, and in
reporting upon the transaction to the Minister. A further
structure must, of course, be in place for appeal from
any decision the Minister might take contrary to the
expressed wishes of the Band.

Similarly, within the Reserve boundaries, property
disputes between Band members or between a Band member and
a non-Indian occupant could be referred to the Indian
Government Authority for resolution, and if not to the
Authority certainly there must be some other mechanism in
place.

While we do not wish to belabour the point about
Bands which do not currently use a legislated land regime,
we should point out that the proposal to convert existing
Indian interests and non-Indian interests into the new
legislative scheme will be not only repugnant to them but
also prohibitively expensive.

The Discussion Paper does not suggest whether or not
the general land regime is intended to extend to such pro-
prietary interests as sand, gravel, minerals and other real
property interests of the Band in its own land. If this is
the case, we feel that the concept of “permanent alienation”
must be modified to accomodate such things as the sale of
gravel without the requirement of a Band referendum. Again,
this kind of transaction will be of concern to Bands
whether or not they choose to adopt the proposed land
regime.

One area which will be a major source of concern
to all Bands is the prospect of expropriation and we
recommend that the Discussion Paper focus on this issue
and include alternative structures for the authorization
and review of these transactions. We also note the
possibility that compensation might be reviewed by a pro-
vincially-constituted body and we recommend that this be
deleted since it will be unacceptable to most Bands.

Provincial taxation of non-Indian interests in
Reserve land is a highly contentious issue and it can be
expected virtually all Bands will resist any suggestion
that it will continue. We recognize that it may not be
possible for federal legislation to exclude such taxation
entirely, but we recommend that the Discussion Paper
focus on this issue and explain it as completely as possi-
ble. we are confident that Bands would not resist a pro-
vision which approached or even crossed the limit of
federal jurisdiction to exclude provincial taxation.

We are unable to comment in detail upon the regis-
tration provisions since the Discussion Paper in its
present form does not really indicate what these provisions
will be. We recommend that this whole aspect of the land
regime be clarified and that the duties and responsibili-
ties Bands will have be clearly enumerated and explained.

9. We have already dealt at some length with the
implications of the proposed membership provisions and
have highlighted the concerns Bands can be expected to
have in relation to them. As a general comment, we would
simply emphasize that Bands will want the greatest degree
of self-determination as to membership, subject to reason-
able review by an appropriate authority, and will want to
see less reliance than is currently placed in the Discuss-
ion Paper upon the member provisions of the present Act.

10. With respect to the financial powers to be granted
to Indian Band Governments, we feel that the majority of
those enumerated are powers which Bands would normally
expect to see and should not raise undue concern. There
are, however, a few areas where the Discussion Paper might
be clearer.

One of these is the provision which permits disposal
of Reserve resources to persons not members of the Band.
The Discussion Paper should indicate whether this simply
covers off the financial aspects of land transactions or
whether this is a separate power dealing with dispositions
such as sale of sand and gravel as discussed earlier in
this paper. In other words, it is not clear whether
“Reserve resources” means land, non-renewable resources
other than land, or whether this refers to renewable
resources such as timber, etc. It is also possible that
the term “resources” as used in this context simply
refers to the assets and other property of the Band and,
if this is the case, this should be clarified as well.
There does not seem to be any other provision which would
permit such a sale.

Also, it is not clear whether or not the power of
the Band to establish other entities and emanations refers
simply to inferior bodies such as a school board, or
whether several Bands might jointly create an emanation
which would provide services to more than one Band and
more than one Reserve for their common benefit and to
achieve efficiencies of scale. We feel that this type of
joint endeavour is both desirable in its own right and
desired by many Bands. We recommend that express provision
be made for this type of enterprise with appropriate
authorities, procedures and review.

The Discussion Paper also proposes that Bands would
manage their own trust funds. while we feel that this is
a positive step, we do recognize that some Bands may want
some independant third party management of their trust funds
and we feel that it should be possible for them to opt
either for Band management, an independant trustee, or
for retention of the Minister’s present authority. Such
a provision should be applicable either to the Band’s
capital account, its revenue account or to both at the
option of the particular Band.

We strongly endorse the proposal that Band econo-
mic development corporations be expressly recognized in
the Act and that such corporations should be tax exempt.
The Discussion Paper, however, falls short of bringing
such an exemption into existence and merely refers to
amendments of other federal legislation. we believe that
Bands will insist that this exemption be included in the
new legislation and strongly recommend such an approach.
We also recommend that the tax exemptions available to
individual Band members be incorporated into Indian Band
Government Legislation and that the opportunity to do so
be taken in order to rectify many of the existing uncer-
tainties and inequities.

11. with respect to law enforcement on Reserves, we
particularly endorse the proposal to appoint Band members
as justices of the peace and recommend that this be empha-
sized in the Discussion Paper as one of the most positive
aspects of the proposal. At the same time, the Discussion
Paper should include a commitment on the part of govern-
ment to actually use this section and appoint a signifi-
cant number of suitable Band members under it. One point
that should be considered is whether or not regulations
such as the Indian Reserve traffic regulations will
become regulations under the new statute. If not, and if
they are to continue in force, the local justices of the
peace should be given jurisdiction to hear offences under
those and similar regulations as well.

It will not be clear to many Bands that the juris-
diction of a justice of the peace under the criminal code
is quite restricted and the Discussion Paper should make
this point clear so that Bands will know precisely what is
involved and what jurisdiction is actually being conferred.
It is also possible that some Bands will want a single
justice of the peace for more than one Reserve or for a
group of Reserves and provision should be made for this as
well.

One provision that appears to be missing in the
present Discussion Paper, and one which Bands will want to
see, is a direction that fines levied in respect of this
legislation whether by a local justice of the peace or
otherwise be paid into Band funds as a source of revenue
for the costs of law enforcement.

Another feature which Bands will want to see with
respect to their judicial system is an express right of
Indians to be tried for these offences in English, French
or the Native language commonly used on their Reserves.
We would strongly support the inclusion of such a provi-
sion.

12. The concept of the Indian Band Government Authority
is one which has given us considerable difficulty. It is
not apparent to us at the present time that there would be
any support for such an authority within the Indian commun-
ity and it is entirely possible that such a proposal
would not survive the consultation phase. We are not
rejecting the possible merits of such an entity but we do
recommend that it be put forward in the Discussion Paper
as a clear option in the sense that it will either perform
its functions for all Bands coming under the statute or it
will not exist at all.

The present proposal appears to present the Authority
as an option in the sense that Bands can either refer
disputes to it or proceed to the courts. It is not, however,
clear that the Authority would have any judicial power to
determine such disputes. This is another area which requires
clarification and we recommend that this be done by way of
presenting alternative powers ranging from a simple advisory
role to a quasi-judicial one. Our own feeling is that
Bands will reject the concept of an Authority which
appears to be independant from government but which lacks
real powers to deal with Indian problems in a sympathetic
and effective manner.

As a final comment on this point, we feel that the
requirement for Band governments to make the annual
report of the Authority available to Band members is heavy-
handed and paternalistic. An Authority deserving of the
name could, in our opinion, be relied upon to distribute its
proceedings effectively.

13. The concept of the Public Administrator is one that
Bands can be expected to find acceptable, but not on the
terms currently set out in the Discussion Paper. In its
present form, the proposal makes it far too easy for the
Administrator to intrude upon Band affairs and it appears
that the Band has no means available to it to get him out.
We strongly recommend that the threshhold criteria for
intervention by the Administrator be clearly set out both
in the Discussion Paper and in the new legislation, that
the functions he can perform be clearly enumerated, and
that Bands have a mechanism both to dispute and terminate
his appointment. Again, this is a function which might be
performed by the Indian Band Government Authority.

Consideration might also be given to intervention by
the Administrator for fixed and limited periods of time,
such as three months, after which there is mandatory
review of the need for his continued involvement.

14. Planning capital review is another concept which
creates difficulties. It is readily apparent to us that
Bands will be virtually unanimous in their oposition to
any form of review body which has the powers suggested
in the Discussion Paper and which is, if only in part,
constituted by a province. Some of the areas suggested
as creating possible disputes are areas which, in our
opinion, provinces have no authority at all at the present
time and we cannot envisage a time when Bands would be
prepared to concede such authority to provinces. For
example, Bands simply will not accept the proposition
that municipal by-laws can apply to Reserve lands.

At the same time, we are not persuaded that pro-
vinces themselves would agree to this type of joint juris-
diction on any terms which could be acceptable to Bands.
What seems to be intended is legislated harmony between
Bands and adjacent municipalities. We agree that this is
a desirable goal but cannot recommend this means of
achieving it.

In our view, harmony would best be achieved by
mediation and this is a role which could be discharged
by the Indian Band Government Authority acting in its
advisory capacity and we suggest that this course of
action be pursued.

15. We must emphasize that the Federal Override is
totally inconsistent with the constitutional recognition
of aboriginal and treaty rights and Bands can be expected
to vigorously oppose it. Accordingly, we recomend that
the Override be limited in the Discussion Paper to those
areas which clearly do not intrude upon the treaty rights
of Indian Bands.

APPENDIX “SEND-43”

STATEMENT TO THE SUB-COMMITTEE ON

INDIAN SELF-GOVERNMENT

OF THE

HOUSE OF COMMONS STANDING COMMITTEE

ON INDIAN AFFAIRS AND NORTHERN DEVELOPMENT

PREPARED BY: THE Treaty #7 Projects Office
on behalf of the Leadership and
Indian People of the Treaty #7,
Sunchild, and O’Chiese Bands.

PRESENTED BY: Mr. Les Healy, Councillor
Blood Band Council

June 2, 1983

HONORABLE MEMBERS:

“IT IS A COMMONPLACE OBSERVATION THAT THE 20TH
CENTURY HAS SEEN UNPARALLELED HUMAN PROGRESS
IN THE PEOPLES OF THE WORLD. AND DESPITE THE
FASHIONABLE VIEWPOINT OF SOME, EFFECTIVE SELF-
GOVERNMENT HAS PROVEN TO BE AN ENGINE OF THIS
ADVANCEMENT THE WORLD OVER. TRAGICALLY, HOW-
EVER, CANADIAN INDIAN PEOPLE HAVE BEEN DENIED
THE RIGHT TO SELF-GOVERNMENT. INSTEAD WE ARE
TRAPPED IN AN ENDLESS MAZE OF ADMINISTRATIVE
RULES, DISTANT COMMITTEES, UNEXPLAINED POLICY
SHIFTS AND OTHER PEOPLE’S POLITICAL PRIORITIES.
THIS LACK OF TRUE AUTHORITY AND RESPONSIBILITY
ROBS US OF DIGNITY; AND IS ITSELF A MAJOR
CAUSE OF OUR PRESENT STATE OF UNDERDEVELOPMENT
AND MISERY.”

You have all heard the foregoing statement, for it
is contained in the presentation by CHIEF ROY LITTLECHIEF
of the BLACKFOOT TRIBE in their submission to this Committee
on November 29, 1982. It is used here, because it so elo-
quently describes the underlying cause for frustration among
TREATY #7 LEADERSHIP, in respect to an “unexplained policy
shift” being imposed on nine Indian Bands within the area.

The Regional Director General, Alberta Region of the
Department of Indian and Northern Affairs, has implemented a
unilateral concept of amalgamation of the Calgary and Leth-
bridge District Offices without full consultation with Bands
to be affected. The Chiefs of the nine Bands, through a
Band Council Resolution, dated February 17, 1983 requested a
period of one year to study and assess the impacts of such a
move; and would propose recommendations for improving on
DIAND SERVICE DELIVERY emanating from these two offices.

At a meeting with the Regional Director General, also
held on February 17, 1983, the Chiefs of the nine impacted
Bands, objected to the imposition of this concept citing the
following reasons:

1. Imposition of this process is seen as enforcement
of the DIAND DIRECTIONAL PLANS FOR THE 80’s and
the STRATEGIC OVERVIEW rejected in 1982 by the
Indian Chiefs nationally.

2. Obstinate adherence to the concepts and schedules
of the OPERATIONAL PLAN (Alberta Sector) exempli-
fies a complete lack of respect for Alberta’s
Indian Chiefs who collectively rejected this plan
in 1982.

3. Implementation of departmental policies and con-
cepts while Indian Leaders were engaged in pre-
paratory resolvement of the more fundamental
Constitutional issues, deteriorates further, the
“TRUST” relationship between the Department and
the Indian People.

4. Suggestions of compliance with recommendations
contained in a 1981 Treaty #7 Amalgamation Study,
are unacceptable in so far as those recommenda-
tions have not been discussed nor ratified by the
Chiefs and Councils of those Bands who mandated
the Study.

NOTE: In 1980, the Chiefs and Councils of the
Blood, Peigan, Blackfoot, Stoney, Sarcee
Sunchild and O’Chiese Bands, commissioned
a study on DIAND services delivered through
the Calgary and Lethbridge District offices.
Although the study was completed in 1981,
the Leaders had not had time to assess
nor to consider any of its recommendations,
having been completely absorbed in prepara-
tions for the upcoming 37(2) Constitution
Conference.

On the pretext of providing further funds
to operate the Treaty #7 Office, the
Regional Director General asked for and
received a copy of the Study even though
the Chiefs and Councils had not ratified
nor sanctioned its contents. Needless to
say, the Regional Director General reneged
on his promise for funds, and stated at a
Treaty #7 meeting, that as far as he was
concerned, there was no Treaty #7 Study;
yet, when asked to justify his actions in
implementing the amalgamation of the two
District offices, he made reference to the
Study, and pointed out that he was only
carrying out what the area Leaders had
recommended.

5. Telephone conversations between the Regional
Director General and the Chiefs of two Bands
among the nine affected, does not constitute
consultation.

NOTE: It appears that the Regional Director
General is not familiar with MAJORITY
CONCENSUS.

6. Installation of a unilaterally appointed indi-
vidual to Supervise the newly formed SUPER
DISTRICT is unacceptable in so far as certain
of the Bands had specifically requested through
BAND COUNCIL RESOLUTION, that the existing
DISTRICT SUPERVISOR, with whom they had developed
a very close working relationship, be allowed
to remain.

Of Particular concern among the area Leadership, was
the underlying threat of withholding much needed funds from
Bands, should the Regional Director General decide to en-
force acceptance of the newly appointed Supervisor, and
the amalgamation generally. With full recognition of this
possibility, a resolution, also dated February 17, 1983, and
endorsed by the Chiefs of the impacted Bands, was delivered
to the Regional Director General.

Without malice and with no apology intended, over one
hundred years of bad experiences with the Department have
sharpened the instincts of our Leadership to a point where,
any statements made by Governments are taken with a “grain
of salt”; and our Leaders are invariably proven correct in
their suspicions.

Despite this “protective” measure, the Department
withheld moneys from at least one Band among the nine ob-
jecting to the “AMALGAMATION” by imposing on that Band, its
most recent set of guidelines, in respect to expenditure of
Band Capital Moneys.

Federal Indian and Inuit Affairs Program CIRCULAR
H-12 with subject heading “AUTHORIZATION AND DIRECTION OF
EXPENDITURE OF CAPITAL MONEYS OF A BAND: INDIAN ACT –
SECTION 64”, came to light when the Sarcee Band submitted a
BAND COUNCIL RESOLUTION seeking the release of a portion of
its Band Capital Revenues.

Was it only coincidental that the Sarcee Band had
been targetted by the Department; or was it a form of pun-
ishment for the Chief and Council’s initial refusal to meet
with the unilaterally appointed District Manager? Whatever
the case, it is interesting to note that only when they met
with the new Officer, and thereby “accepting” him, were
they successful in obtaining a part of their original sub-
mission. The circumstances emphatically demonstrate the
Department’s use of “COERCIVE” methods in subjugating Indian
Governments into compliance with its “endless maze of adminis-
trative rules and unexplained policy shifts”.

Members of the Sub-Committee are respectfully re-
quested to act on the recommendations which appear following
the brief dissertation on the H-12 CIRCULAR.

The Treaty #7 Leadership is in total support of the
Sarcee Band in its strategies to have the offending document
repealed or squashed. The Treaty #7 Leadership is in full
agreement that the document is “DICTATORIAL” and “REPRESSIVE”.
The Treaty #7 Leadership categorically denounces the liber-
ties taken by Bureaucrats within the Department in ‘enacting’
for themselves ‘authoritative’ powers as contained within the
H-12 CIRCULAR.

Although the document is premised on SECTION 64 of
the INDIAN ACT, it is inconsistent as demonstrated by the
following excerpts:

SECTION 64 of the INDIAN ACT states:

With the consent of the Council of a Band, the
Minister may authorize and direct the expendi-
ture of capital moneys of the band. . . . . . .

SECTIONS 2.1 and 2.2 of the CIRCULAR state:

2.1 The authonization and direction of the
expenditure of band capital moneys shall
be carried out within the provisions of
the Indian Act and other appropriate
directives.

2.2 The responsibility for the authorization
or rejection of submissions concerning
projects or objects of expenditures from
Band Capital moneys rests with the Minister
of his delegate. 1

INCONSISTENCY has been demonstrated. The CIRCULAR is
deemed to be DICTATORIAL in that it attempts to regulate the
expenditure of Moneys legally owned by Bands. It is REPRES-
SIVE in that it supports the paternalistic attitudes of non-
Indians who purport to be better judges of what the Indians
really want or need. More importantly its very “birth” tends
to negate the very positive statement made by the Prime
Minister in his opening remarks at the March Constitution
Conference, in respect to embarking “on a new effort to re-
solve the basic delimma of relationship” 2

1. emphasis the writer’s

2. excerpt from the Prime Minister’s statement (March Conference)

QUOTATION FROM THE PRIME MINISTER’S OPENING REMARKS:

“On behalf of the Government and people of Canada, I
reject again today, as I did in 1969, assimilation
and termination for the aboriginal peoples, as we
stand at the threshold of this new constitutional
process. I reject them as firmly as I reject full
independence or absolute sovereignty as a basis for
their relationships with any government within our
federation. These two extremes lie outside the
range of options that we are prepared to contem-
plate, in pursuit of our commitment to complete
this process.

“This is not to slam the gate on open discussions,
but to frame the gateway to the range of possibi-
lities suggested earlier, which lie between the two
extremes I have just ruled out.”

***********

RECOMMENDATIONS:

1. THAT THE SUB-COMMITTEE ON INDIAN SELF-GOVERNMENT
THROUGH OPEN “GATEWAYS” AT ITS DISPOSAL, ADD ITS
SUPPORT TO THE FOLLOWING RESOLUTION PASSED AT THE
MAY 3-5, 1983 ALBERTA ALL CHIEFS’ CONFERENCE:

WHEREAS The Alberta Regional Director General of
the Department of Indian Affairs, has again
unilaterally imposed policy on Treaty #7,
Sunchild and O’Chiese Bands, despite ex-
plicit rejection of the Amalgamation of the
Lethbridge and Calgary District Offices,
through interdepartmental transfers; termi-
nation of key positions; and the hiring of
a Senior Official to combine administrative
functions of the two Districts; and,

WHEREAS The Chiefs of the Treaty #7, Sunchild and
O’Chiese Bands, through a joint Band Council
Resolution, dated February 17 have demanded
a period of one year to further examine the
whole area of DIAND Service Delivery, as it
affects the nine Bands, and request full
participatory involvement in determining
whether or not such a policy should be im-
plemented; and,

WHEREAS In a letter from the Regional Director
General, addressed to the Chiefs of the said
Bands, dated March 16, Mr. Kohls, in complete
disregard to the expressed request, proposes
a four (4) month re-examination of this
issue; and continues to impose changes, in
direct conflict with a verbal promise made
to the Chiefs at the February 17 meeting,
that no further implementation of the con-
cept would occur without full approval of
those Bands affected; and

WHEREAS Imposition of the Amalgamation process by
the Regional Director General, Alberta
Region, is seen as continued implementation
of his Operational Plan, despite rejection
through the following motion unanimously
endorsed at the April, 1982 Assembly of
First Nations meeting held in Penticton,
British Columbia: (partly quoted)

‘this assembly reject unequivocally the im-
plementation of the Directional Plan for
the 80’s, the Strategic Overview and the
Operational Plans; and,
that we develop our own planning process
that will involve us completely and be
under our control and direction’.

THEREFORE BE IT RESOLVED That the Chiefs of Alberta
interpret the Regional Director General’s
actions as a direct affront to their leader-
ship abilities and powers of decision-making
and through recognition of implications,
support the rejection of the Amalgamation
process, as it presently affects the nine
Bands above-mentioned; and,

FURTHER BE IT RESOLVED THAT through a letter of
support to the Federal Minister of Indian
Affairs, the Alberta Chiefs, from the other
two Treaty areas, in a demonstration of
unity, add their voice to a demand for the
necessary time and resources that will allow
the Indian to develop our own planning pro-
cesses that will involve us completely and
be under our control and directions; and,

FURTHER BE IT RESOLVED THAT the Chiefs of Alberta
support fully, all efforts of the nine Bands
to seek resolvement of the issue through
whatever avenue may be at our disposal, such
as:

a) the Sub-Committee on Indian Self-
Government
b) the Standing Committee on Indian
Affairs
c) the Assembly of First Nations
d) the Federal Opposition Party
e) the General Public

2. THAT THE SUB-COMMITTEE MEMBERS WITH DIRECT CON-
TACT WITH THE MINISTER OF INDIAN AND INUIT AFFAIRS
SECURE ON BEHALF OF THE TREATY #7, SUNCHILD AND
O’CHIESE BANDS, AN UNCONDITIONAL COMMITMENT FROM
THE MINISTER TO HALT FURTHER IMPLEMENTATION OF
THE AMALGAMATION PROCESS BY THE ALBERTA REGIONAL
DIRECTOR GENERAL.

3. THAT THE SUB-COMMITTEE, THROUGH THE STANDING
COMMITTEE ON INDIAN AFFAIRS AND NORTHERN
DEVELOPMENT , INTERCEDE WITH THE MINI STER OF
INDIAN AND NORTHERN AFFAIRS, HON. JOHN MUNRO,
TO APPROVE THE PROPOSAL FOR A RE-EXAMINATION
OF THE DEPARTMENT’S SYSTEM OF SERVICE DELIVERY
AMONG THE NINE BANDS AFFECTED BY THE PROCESS
OF AMALGAMATION PRESENTLY BEING IMPOSED, AND
THAT THE MINISTER RESPOND WITHOUT FURTHER DELAY
TO THE PROPOSAL AND BUDGET PRESENTED TO HIM AT
A MEETING ON MAY 9, 1983, AT HIS OFFICES IN
OTTAWA.

NOTE: A copy of the proposal is attached for
your information.

4. THAT THE SUB-COMMITTEE RECOMMEND TO THE STANDING
COMMITTEE ON INDIAN AFFAIRS AND NORTHERN DEVELOP-
MENT, THAT IMMEDIATE ACTION BE TAKEN TO REPEAL
THE OFEENDING H-12 PROGRAM CIRULAR SETTING OUT
GUIDELINES FOR EXPENDITURE OF BAND CAPITAL
MONEYS.

5. THAT THE SUB-COMMITTEE THROUGH DIALOGUE WITH
THE STANDING COMMITTEE ON INDIAN AFFAIRS AND
NORTHERN DEVELOPMENT INITIATE IMMEDIATE ACTION
TO HALT ALL FURTHER DEVELOPMENT OF NEW POLICY,
WITHIN THE DEPARTMENT OF INDIAN AFFAIRS, AS A
COURTESY JESTURE TO THE INDIAN LEADERSHIP WHICH
WILL ALLOW FOR MORE EFFECTIVE, MEANINGFUL, AND
EFFICIENT DELIBERATIONS ON THE MORE FUNDAMENTAL
CONSTITUTION ISSUES.

On behalf of the Treaty #7 Bands who share equally
the impact of unilateral policy shifts emanating from the
Department of Indian Affairs, the Treaty #7 Projects Office
takes this opportunity to say a sincere “THANK YOU” to the
BLOOD TRIBE Chief and Council for allowing a portion of their
time for this presentation. To the Sub-Committee members and
ex-officio representatives, we send a message of gratitude
for hearing our presentation; and with heartfelt optimism
for a brighter tomorrow, we conclude with the following
quotation taken from Chief Robert Manuel’s speech at the 1979
Indian Government Development Conference:

“INDIAN GOVERNMENT IS A NEW DEMOCRACY, WHERE PEOPLE
ARE ORIGIN OF AUTHORITY, WHERE A LAND EXISTS THAT
PROVIDES AN ECONOMIC BASE THAT IS FAIR AND EQUAL,
WHERE THE NEEDS OF VOTING PERSONS AND THE WISDOM
OF THE ELDERS IS RESPECTED, WHERE EDUCATION IS THE
RESPONSIBILITY OF EVERYONE, WHERE WILD LIFE AND
NATURE FLOURISHES AND WHERE THE SOCIETY IS MANAGED
FOR THE EMPLOYMENT OF ALL”.

Respectfully submitted,

Margaret Waterchief
Treaty #7 Vice-President
INDIAN ASSOCIATION OF ALBERTA

DIAND/INDIAN GOVERNMENTS’ JOINT WORKING RELATIONSHIP
A STUDY PROPOSAL

THE PROJECT:

Towards securing a more efficient and res-
ponsive mechanism for the delivery of DIAND services,
the Blackfoot, Peigan, Blood, Sarcee, Stoney (3),
Sunchild and O’Chiese Bands propose that through a
selected Committee mandated to review, study and pre-
pare recommendations, a more secure joint working
relationship may be achieved between Indian Govern-
ments and the Regional Department of Indian Affairs,
Alberta Region.

PURPOSE:

The Chiefs of the nine participating Bands
object to the manner in which amalgamation of the two
District Offices (Lethbridge and Calgary) has been im-
plemented by the Regional Director General. The Chiefs
request a period of one year to study and assess its
impacts.

FUNDING AND ACCOUNTABILITY:

Through direct negotiations with the Federal
Minister of Indian Affairs, the Regional Director
General shall be directed to release funds for a one
year assessment, as per the attached budget.

Although the nine Bands have united in joint
studies in the past, and continue to co-ordinate
activities through a central office, they remain unin-
corporated, therefore the following procedures shall
provide the necessary accountability:

1. The Indian Association of Alberta shall secure
at its existing Banking Institution, and maintain
through its accounting department, a distinct and
separate BANK ACCOUNT, in the name of –

“TREATY #7 PROJECTS”

2. As a monitoring vehicle, the Indian Association of
Alberta shall ensure that only those items per-
taining to the STUDY, and as requisitioned by the
Treaty #7 Vice-President, shall be dispensed through
the TREATY #7 PROJECTS account. However, items such
as payrolls, shall be payableaaccording to normal
Indian Association of Alberta schedules.

3. The Indian Association of Alberta shall cause to be
prepared, for presentation by the Treaty #7 Vice-
President to the Chiefs of the participating Bands,
monthly financial statements; and shall cause to be
prepared, for the Department of Indian Affairs,
quarterly audited financial statements of all trans-
actions within the TREATY #7 PROJECTS account.

4. The Indian Association of Alberta shall abide by,
and recognize as signatories, only those persons
specifically named in a Band Council Resolution
endorsed, collectively, by the Chiefs of the Parti-
cipating Bands; which is to say that signatures of
any two of the following shall be required on all
cheques drawn on the TREATY #7 PROJECTS account.

– The Treaty #7 Vice-President, as responsible study
co-ordinator.

– The IAA Resident Accountant, as Financial Adminis-
trator on behalf of the Department of Indian
Affairs.

– One other person from among the Chiefs of the
Participating Bands.

PARTICIPATING BANDS:

All those Indian Bands who normally
receive DIAND SERVICES through either the Lethbridge
or,Calgary District Offices, namely: BLOOD; PEIGAN;
BLACKFOOT; SARCEE; STONEY (3); SUNCHILD; and O’CHIESE.

CO-ORDINATING CENTRE:

In Co-operation with the Treaty #7
Vice-President, the Executive Assistant shall be
responsible for the cohesive co-ordination of Committee
activities in respect of the Study, and shall make
available for use, those facilities and amenities at:

TREATY #7 PROJECTS OFFICE
#200, 5920 Macleod Trail South
CALGARY, Alberta
TZH 0K2

TELEPHONE: 255-7712 (403)

RESPONSIBILITIES:

DIAND: THE DEPARTMENT OF INDIAN AFFAIRS, ALBERTA
REGION, SHALL RECOGNIZE THE SINCERITY OF THE STUDY, AND
ITS IMPORTANCE IN AFFIRMING A JOINT WORKING RELATIONSHIP,
AND SHALL “CEASE AND DESIST” FROM FURTHER IMPLEMENTATION
OF ANY AND ALL OF ITS UNILATERAL CONCEPTS, AS THEY RE-
FLECT ON THOSE SERVICES AND THEIR DELIVERY AMONG AND FOR
ALL INDIAN BANDS PARTICIPATING IN THIS STUDY.

CHIEFS AND COUNCILS: THE CHIEFS AND COUNCILS OF THE
PARTICIPATING BANDS, SHALL DEMONSTRATE THEIR GENUINE
CONCERN, BY ENSURING, ON THEIR RESPECTIVE AGENDAS,
ALLOCATION OF TIME(S) FOR PERIODIC REPORTS FROM ITS
COMMITTEE REPRESENTATIVE(S); AND SHALL PROVIDE THE
NECESSARY TIME FOR COLLECTIVE AND CONCLUSIVE DETERMINA-
TION OF A MORE FEASIBLE AND EFFICIENT DIAND SERVICE
DELIVERY PACKAGE.

THE COMMITTEE:

Each Participating Band Chief and Council, or
Chiefs and Councils of groups of Bands, shall appoint an indi-
vidual from among its general Band membership, to serve on a
Joint study Committee as follows:

BLOOD 1
PEIGAN 1
BLACKFOOT 1
SARCEE 1
STONEY 1
SUNCHILD/
O’CHIESE 1

6

The Regional Director General, in consultation with
area Chiefs, shall appoint from among Regional Staff, an indi-
vidual to work with the Committee, and such individual shall be
responsible to provide, upon request, all government and/or
Departmental documents and other material necessary for the suc-
cessful completion of the study. Additionally, this appointee
shall attend all regularly scheduled and/or special meetings,
Workshops, etc. of and for the Committee.

TERMS OF REFERENCE:

Under the Direction of the Co-ordinating Centre,
general responsibilities shall include:

– Attendance at all monthly scheduled meetings.

– attendance at any planned workshops, seminars,
conferences, or fact-finding missions.

– completion of designated duties within time
schedules.

– respect and confidentiality of all information
gathered.

– recognize authority of Chiefs and Councils and
arrange all on-Reserve activities through and with
their involvement.

– respond to directives and decisions made collectively
by participating Band Chiefs and Councils.

Other specific duties shall be as outlined in the
attached Work schedule.

THE WORK SCHEDULE:

Work on the Project will “kick off” with a
BRIEFING WORKSHOP to familiarize the Committee members with
subject material. Resource Personnel from the Department of
Indian Affairs, the Indian Association of Alberta, the
Province of Alberta, and area Indian Governments will be in-
vited to provide information on existing services available
at respective levels.

NOTE: It is proposed that one week is
sufficient for a full briefing,
as follows:

3 days – Workshop
2 days – Study Preparation for
the Committee.

The Workshop will be open to all Chiefs,
Councils and Administrators and any other interested persons
from participating Bands; however, attendance will be manda-
tory for all Committee members.

NOTE: A separate proposal will be designed
providing full details of the types
of information required. Perhaps
attendance of Leadership will depend
on this design.

Following the in-depth review of documents
(as per the Time Schedule attached), another Workshop will be
conducted with particular emphasis on conclusions arrived at by
study members. A separate budget will be prepared and presented
for Chiefs and Councils approval prior to being submitted to the
Department of Indian Affairs for funding.

Throughout the Study, the Committee members
will keep respective Chiefs and Councils informed of any and all
developments; and will conduct Information Seminars for the Band
Members during the months as provided in the Time Schedule.

TIME SCHEDULE:

APRIL 1 – JUNE 30, 1983:

EMPHASIS:
“POLITICAL AND ADMINISTRATIVE”

RESOURCES:

1. Chiefs and Councils
2. Administrators
3. DIAND (Districts)

Through extensive interviews
obtain individual perspec-
tives on:

– present delivery system(s)
– suggestions for improvement

Compile findings

JULY 1 – AUGUST 31, 1983:

EMPHASIS:

“RESEARCH”

MATERIAL:

1. Departmental Policy
Documents

2. Programme Dollar
Breakdowns

3. Treaty #7 Amalgamation
Study (1981)

Positive response to a Joint
Band Council Resolution will
provide government dollars for
employing students.

Working with one High School,
or Post-Secondary student per
Band, the Committee will study
analyze and critique all
documents.

SEPTEMBER 1 – DECEMBER 31,1983:

EMPHASIS:

“GOALS AND OBJECTIVES THROUGH
OUTREACH”

RESOURCES:

1. General Band Memberships
– Elders
– Students
– Parents
– Employed
– Unemployed

2. other structures
– Tribal Councils
– Outside Organizations

Through development of a sys-
tem of statistical compilation
opinions and/or ideas from
individual interviews will
provide the very necessary
input from local Band member-
ships.

Other Organizations dependent
on “Service Delivery” systems
will be investigated and
“good points” will be incor-
porated.

TIME SCHEDULE (con ‘ t) :

JANUARY 1 – MARCH 31, 1984:

EMPHASIS :

“DEVELOPMENT AND NEGOTIATION”

PARTICIPANTS:

1. Committee Members
2. Professional Resources
3. Chiefs and Councils
4. DIAND Senior Personnel

– Committee to finalize
report on findings.

– Committee to obtain
professional assessment
of report.

– Committee to present re-
port to Chiefs and
Councils, at a Joint
meeting.

– Committee to redraft or
amend according to
recommendations received
from Chiefs and Councils.

-Chiefs and Councils to
negotiate with DIAND.

BUDGET PROPOSAL
APRIL 1, 1983 – MARCH 31, 1984

*See PDF for budget

WITNESS

From the Blood Tribe:

Mr. Wayne Wells, Councillor.
Mr. Lesslie Healy, Councillor.
Mr. Virgil Brave Rock, Councillor.
Mr. Narcisse Blood, Technician.

From the University of Lethbridge:
Professor Leroy Little Bear.

From Coopers and Lybrand:
Mr. Glenn Ross, Partner.
Mr. Gary Peall, Manager.