EVIDENCE PRESENTED TO ADDRESS CANADA’S REQUEST TO EXTRADITE MR. JAMES PITAWANAKWAT FROM THE UNITED STATES FOR HIS INVOLVEMENT IN THE GUSTAFSEN LAKE STANDOFF IN BRITISH COLUMBIA IN 1995

Evidence prepared by Dr. Tony Hall of the Department of Native American
Studies at the University of Lethbridge in Alberta, Canada at the
Request Mr. Paul Papak, Assistant Federal Public Defender in Portland
Oregon, September, 2000.

QUESTION: Does Mr. Pitawanakwat’s convictions for his involvement in the
Gustafsen Lake standoff fulfill Article 4, Section 1 (3) of the
Extradition Treaty between Canada and the United States, which affords
protection to persons whose criminalization has been of a “political
character?”

My name is Anthony James Hall. I am a Canadian citizen. I have worked
for ten years as a tenured, Associate Professor of Native American
Studies at the University of Lethbridge. Between 1982 and 1989 I was an
Assistant Professor of Native Studies at Laurentian University in
Sudbury Ontario. I have a Ph.D. in History from the University of
Toronto. My specialty is the history of encounter between Indigenous
peoples and Euro-North Americans, with a special emphasis on
constitutional law, land disputes and negotiations as well as treaty
making, treaty interpretation and treaty implementation. I also
specialize in the history and politics of First Nations resistance
movements from 1492 to the present. I have published and taught
extensively in all these areas. I have given many presentations on these
topics at scholarly conferences and made many presentations to
government inquiries looking at these matters, including Canada’s Royal
Commission on Aboriginal Peoples. I am asked to comment regularly in
print and broadcast media on the areas of my expert knowledge.

I have focused particularly close study on the inter-related
confrontations at Gustafsen Lake British Columbia and Ipperwash Ontario
as well as on the complex aftermath and implications of these episodes.
My articles were published nationally during the course of the standoff
in 1995 and I have continued to research and write about these episodes
in the years since. I recall one of the interviews I gave during the
height of the Gustafsen/Ipperwash fiasco was with a reporter for the
Christian Science Monitor in the United States.

I have looked at the pertinent aspects of the extradition request from
Canada involving James Pitawanakwat of the Wikwemikong Unceded Reserve
on Manitoulin Island in Ontario. The charges and convictions he faced
in British Columbia arise as a result of his participation near
Gustafsen Lake in the activities of a Native camp established for the
purposes of holding a lengthy religious ceremony. That religious ritual
evolved into a confrontation, involving during the summer of 1995 the
Canadian Army as well as memebers of the Royal Canadian Mounted Police,
a federal police force which is also contracted by several provincial
governments to serve under the authority of the provincial Crowns of
western Canada. The RCMP intervened at Gustafsen Lake in its capacity
as BC’s provincial force.

Having studied the matter it is my expert opinion that the charges and
convictions placed on Mr. Pitawanakwat were manifestly of a political
character. Indeed, the inter-related standoffs at Ipperwash and
Gustafsen Lake became extremely charged political events, where the
police, the military and many of the media reporters covering the event
became ensnared in a complex web of inter-connected political agendas.

These agendas involved efforts of officialdom, both Native and
non-Native, to manipulate public perceptions to safeguard a fragile
status quo in about 50 treaty negotiations then and now underway in
British Columbia involving fundamental re adjustments in the
relationship between Aboriginal and Crown land title over the largest
mass of this resource-rich province. These negotiations are very
political exercises, whose very existence serves to illustrate that the
Aboriginal land title in British Columbia is an extremely charged
subject of political controversy, where the future disposition and
rights to almost unimaginable natural-resource wealth hangs in the
balance.

While these treaty negotiations are political exercises, they proceed in
an environment where the domestic courts of Canada have created some of
the parameters within which the bargaining is taking place. In 1973 in
the Calder ruling, and in 1997 in the Delgamuukw ruling, the Supreme
Court of Canada addressed the question of whether or not the Indigenous
peoples of the province hold an existing Aboriginal title to most of
British Columbia. While there is much ambivalence and paradox in both
rulings, basically the courts have gradually vindicated the positions of
generations of Indian activists, who have consistently argued that
British Columbia since its inception has not developed according to the
rule of law of British North America. Following a flood of Californian
gold miners into the Hudson’s Bay fur trade preserve west of the Rockies
formally known as New Calendonia, British Columbia was made a Crown
colony in 1858. The southern boundary of Crown territory and the
northwestern boundary of US jurisdiction were negotiated in the Oregon
Treaty settlement of 1846

The headway made by Indian people in the courts has been extremely hard
won. Many delegations of British Columbia Indian leaders have over the
last 125 years made representations to the Dominion government in Ottawa
and to the monarchy as well as to the House of Lords and the House of
Commons in London, seeking to call attention to the failure of Crown
authorities in BC to address the Indian title of the First Nations
through the negotiation of treaties. That recognition of Aboriginal
title was codified and entrenched in the founding document of British
imperial Canada, namely the Royal Proclamation of 1763. The response of
the Canadian government to this mobilized Indian lobby was in 1927 to
amend the Indian Act to make it illegal for registered Indians to raise
money for their own political organization or to hire a lawyer to pursue
an Indian claim. That draconian law stayed on the books until 1951.
There is a large academic literature on the history and politics of the
Aborginal title issue. A good primer on the subject is Paul Tennants,
Aboriginal Peoples and Politics: The Indian Land Question in British
Columbia, 1849-1989, (Vancouver: University of British Columbia Press,
19990). The main title chosen by Professor Tennant I believe suggests
that the Indian-land question in British Columbia is intensely
political, and it has been just that for a long time.

The Aboriginal-title question is a very central and evocative political
symbol for all First Nation peoples in BC, even as this same issue is
increasingly manipulated by many non Aboriginal politicians. Some of
these politicians throughout all shades of the political spectrum have
learned how to exploit the anxiety that many BC citizens feel on this
issue. These citizens have often been opportunistically encouraged to
believe that the treaty negotiations will negatively affect the quality
of their own private land titles. This encouragement to distrust the
negotiation process is generally given as a prelude to make the public
believe that this or that politician has some magic bullet to make the
difficult issue of Aboriginal title go away.

This history has resulted in an usually contorted intertwining of legal
and political issues. On the one hand the courts have in a sense
mandated the local politicians to carry on with treaty negotiations, a
process which the local government in BC has persistently resisted for
over a century. On the other hand the politicians, both Aboriginal and
non-Aboriginal, are inclined to pass the hard political aspects of the
negotiations back to the courts when they reach impasses.

Underlying all of this are a number of subterranean issues that rarely
get honestly addressed. One of these is, who will represent the First
Nations? Will the old colonial instruments of Indian representation be
used or will some new kind of representative bodies be developed based
on some combination of Aboriginal tradition and modern bureaucratic
principles? Have the domestic courts of Canada and BC the jurisdictional
competence to deal with these fundamental issues or is some new kind of
court with international representation necessay so that there is the
substance and appearance of genuine third-party adjudication? What
safeguards are there, if any, that the federal and provincial control of
funding mechanisms, including for the Aboriginal representatives around
the 50 or so bargaining tables, won’t be abused to pre determine the
outcomes? What safeguards are there that the hundreds of millions of
dollars flowing into this procees, much of it for legal opinions, legal
research and litigation, won’t become the currency for partisan
patronage poiltics? In my judgment all of these questions were integral
to the Gustafsen Lake protest. And all of these questions are in my
experience consistently evaded by those who have acquired good jobs or
amassed lucrative, federally and provincially-funded legal contracts to
facilitate the treaty negotiations in their present format.

What has developed from this ad hoc approach to piggy backing
Aboriginal title issues onto a business-as-usual agenda in BC, is an
Aboriginal-rights negotiating industry. In an informal but nevertheless
real way, this negotiation industry, representing federal, provincial
and Aboriginal polities, has taken on a life of its own; it has
developed its own lobbies and its own mechanisms to evade too-close
scrutiny. If the Gustafsen protest had been afforded the attention and
careful analysis it deserved, that public scrutiny would almost
inevitably have led to the asking of many questions that those presently
benefiting most from the Aboriginal-rights negotiating industry would
prefer not to see publically addressed.

Of course the struggle over who will control the wealth to be derived
from the lands and waters of North America is the oldest and most
consistent theme of Native newcomer relations on the continent. Time
and time again Native people have been demonized and treated as savage
terrorists when they make a stand to defend physically what they have
powerful reasons to believe is legitimately theirs. Rarely is it
difficult for public authorities to gain sympathy for themselves as
defenders of law and order when the real agenda is to advance what
amounts to history’s most massive and prolonged land grab that has been
underway since 1492. While this land grab has often hidden behind the
artifice of the law, the real nub of the matter is power and control and
the political manipulation of First Nations people off the land to make
way for its exploitation by others.

The edified political popularity of known Indian fighters in government
is ,unfortunately, a relatively frequent phenomenon in North America, a
route even to the White House travelled by at least two American
presidents, namely Andrew Jackson and William Henry Harrison. In my
view Ujjal Dosanjh’s rise from Attorney General to Premier of BC was
projected along a similar route to high office. His rise to BC’s top
job was integrally connected to the conquistadorial cowboy image that he
projected during the Gustafsen Lake standoff.

As University of Victoria Political Science Professor, Norman Ruff, was
reported to have said in September of 1995 at the end of the standoff in
describing its effect on the public perceptions of Mr. Dosanjh’s New
Democratic Party government (NDP), “the NDP has quickly transformed
anxieties over aboriginal issues into an asset, partly due to the
patient but firm stance taken by [then-Premier] Harcourt’s new attorney
general, Ujjal Dosanjh.” Professor Ruff characterized the political
fallout of the Gustafsen affair as representing a “big ace” for the
political aspirations of the NDP government to win a second mandate from
the electorate. “You get the feeling the election train is ready to
leave the station,” Ruff said. “One of the best things to have happened
to the NDP,” he added, “is Ujjal Dosanjh.” (David Hogben, “Election
Train ‘Ready’ After Surrender,” Vancouver Sun, 18 September, 1995, p.
A3)

As is clearly illustrated in Above The Law, Part 2’s documentary footage
chronicling the Attorney General’s characterization of the protesters at
the beginning of the confrontation, BC’s Chief Law officer didn’t bother
with the niceties of due process, or the assumption of innocence until
guilt is proven. He publically condemned the group in extremely
intemporate and unqualified ways, setting the stage for a trial by media
that precluded the possibility of anything but a media circus throughout
the standoff and the subsequent trial. I believe Attorney-General
Dosanjh well understood the dynamics of the class and racial tensions at
play in this episode, which he proceeded to exploit opportunistically to
raise the measure of his own political capital, especially with those
elites who had the most to lose if the principles of the Gustafsen
protest were ever to be incorporated into government policy. Professor
Ruff’s assessment at the end of the standoff makes it clear that the NDP
government’s role in the Gustafsen Affair was mostly about increasing
its chances for electoral success by “transforming the [public’s]
anxieties over aboriginal issues from a political liability into an
asset.”

From this I believe it follows that some members of the police and
military allowed themselves in the interconnected Gustafsen/Ipperwash
episodes to be made agents, consciously or inadvertently, of the
political agendas of some elected government officials, but especially
BC’s Attorney General, Ujjal Dosanjh, and Ontario’s Premier, Mike
Harris. Both sought sought to exploit the constitutional and land
disputes raised by the protesters to gain political popularity with the
electorate by seeming to take a tough, law and order stand against what
was described time and time again in the media as “renegade Indians,” or
“ maverick Indians,” or even “killer” Indians. Both Mr. Dosanjh and Mr.
Harris have prospered politically in the years since 1995, in no small
measure I believe for their “get-tough” stands aimed at a part of the
population that too many non-Aboriginals, unfortunately, love to hate,
or at least love to see “get put in their (sobordinate) place.” The fact
that the UN Human Rights Committes has criticized Canada for the lack of
a public inquiry into the police killing at Ipperwash of Ojibway
protester, Dudley George, is indicative of the profound failure of our
public institutions when it comes to public accountability for the
conduct of what amounts to modern-day Indian fighting.

The Gustafsen protest in which Mr. Pitawanakwat was centrally involved,
therefore, was first and foremost a political stance, undertaken with a
political motivation and with a very detailed political agenda that
menaced many powerful interests pursuing their own political agendas
within the framework of the elaborate negotiations on Aboriginal and
Crown land title in BC. I maintain that these powerful interests were
able to parlay their political capital into the improper and
inappropriate manipulation of police and military actions, a
mobilization of coercive state force that was directly connected to a
very concerted campaign to mold and shape public opinion in a very
political fashion for very political ends.

Much of the media ended up playing their part, sensationalizing the
standoff by presenting variations of some of the the most reprehensible
racial stereotypes in our society. That abuse of a public trust did, I
believe, quite serious damage to the entire fabric of relations between
Native peoples and non-Aboriginals throughout Canada. I do not think I
am going too far to suggests that some of the hate crimes legislation
may have been violated in Canada, stemming from the concerted campaign
carefully orchestrated from the offices of the RCMP and the BC
Attorney-General’s Office to demonize the public imagery of the
protesters so they would be denied public sympathy or a genuine public
hearing for the serious and substantial arguments they wished to make.

The Gustafsen group were endeavouring to raise very serious
constitutional and political issues, not only on behalf of themselves
but on behalf of a very large Aboriginal and non-Aboriginal constituency
who are inclined to feel saddened and even demeaned by what they view as
the very sorry state of the present regimes of Indian Affairs in both
Canada and the United States. Moreover, the particular stand at
Gustafsen Lake was also calculated to draw attention to a very serious
allegation that the rule of law itself is being menaced by the failure
of the authorites in Canada and BC to live within the constitutional
provisions on “existing Aboriginal and treaty rights.” These rights are
“ recognized and affirmed” in section 35 of Canada’s Constitution Act,
1982. That document is identified in Canada as part of the country’s
“ supreme law.” (section 52)

Another very significant part of the political character of the charges
and convictions placed on Mr. Pitawanakwat has its roots in the
involvement of the Canadian Army in the Gustafsen Lake standoff. In
order for officials in British Columbia to succeed in their efforts to
pull Army armaments and personnel into the conflict, politicians in the
federal government had to be persuaded that the threat was so serious
that the country’s foreign defence apparatus had to be engaged in order
to quell an domestic insurrection. This decision to turn the weapons of
national defence domestically inward is one of the most serious
determinations any government can ever make. In theory the political
and legal bars to acting in such a manner are very, very high.

In Canada the Army has been called into domestic conflicts only three
times since World War II, once in 1970 during a matter involving the
Quebec independence movement, once during the Oka conflict of 1990. The
third time was at the Gustafsen Lake standoff. The 1970 and 1990
episodes are both widely recognized as formative events in the political
life of Canada. So too were the events of 1995 extremely important
political episodes, even if government officials in Canada have their
own self intersted reasons for trying to maintain the facade that the
Gustafsen/Ipperwash fiascos were all about maintaining law and order
rather than about intruding the most coercive instruments of state power
into the very heart of our country’s most complex constitutional and
human-rights matters.

There is a large body of evidence I have seen indicating that events
were concocted and reported to the media, but especially those which are
supposed to have taken place on August 27th and September 4th, as part
of a political initiative emanating from BC but aimed ultimately at
Ottawa. During this initiative reporters were blocked by police from
access to the Native protest camp even as the media agreed as a corp to
self-censor themselves by not reporting on the secret police/military
operations centre, code named Camp Zulu. (Mark Hume, “Selected Media Get
To Look at Zulu, The Vancouver Sun, 18 September, 1995) The resulting
monopolization by police of the flow of information from the standoff
site had as one of its objectives the creation of a public perception
that such a severe crisis was underway that federal politicians right up
to the cabinet and the Prime Minister would feel justified in beginning
and then raising the level of federal Army involvement in the operation.

That decision to engage the force of the military was taken through a
process that did not in my view fulfill the requirements of the Canada’s
national defence legislation. In any case the Army did get involved in a
secret operation, code named Wallaby. That the word “POLICE” that was
emblazened on the Army’s Armoured Personnel Carriers in the conduct of
Operation Wallaby, is just one small detail of the layers and layers of
deception, some aspects of which have been documented in Above The Law,
Part 2. So too does this video document RCMP Media Liason Officer Peter
Montague repeatedly telling the media that the military was not
involved, when that was clearly not true.

The Army was deeply involved. Sargeant Mike Schleuter, for instance, an
Army explosives expert who had his hand blown off during the operation,
sued the federal government for $3 million, contending that it
mishandled aspects of its role in this covert Indian war. The federal
government in fact commited its most secret anti terrorist unit, Joint
Task Force II, which later is reputed to have used its expertise in
laser technology in NATO’s war on Yugoslavia. The high security
surrounding this unit has added yet another layer of duplicity to the
ongoing cover-up of what really happened at Gustafsen Lake in 1995.

The means of creating the desired impressions for the public, and
possibly also for the federal politicians who held the key to the
invocation of military powers, was described in the RCMP’s own training
tape as a campaign of “disinformation and smear.” Those words are
theirs, not mine. They were used by police media liason officers to
describe their own activities during the Gustafsen Lake operation.
Again, the evidence is in the video tape, Above The Law, Part 2. Having
studied the great disparity between what was reported in the media
during the standoff and some of the evidence that emerged at the
subsequent trial, there is no escaping that the phrase, “disinformation
and smear” accurately characterizes the tactics visited on the Gustafsen
protesters, including Mr. Pitawanakwat.

As I see it, the complex web of legal and political interpretations that
have converged in the dispute over the character of land title to most
of BC provides a major focus for a number of issues whose dimensions
transcend North America to assume international proportions. In my view
the Gustafsen protesters, whose emphasis was on the international
character of the BC land issue, represent a school of analysis whose
very strategic importance is illustrated by the zeal of officialdom to
contain and misrepresent the message and to kill the image of the
messengers in the criminal courts and, ultimately, in the court of
public opinion.

The statements above outline my broad reading of the very political
circumstances that have led up to the request to extradite Mr.
Pitawanakwat. Although I have not yet seen the evidence presented by
Canadian law enforcement officials to justify this extradition, my best
guess is that it too will be reflective of the tactics of disinformation
and smear which Sargeant Peter Montague’s described in Above The Law,
Part 2 as an RCMP specialty. “Smear campaigns are our specialty,” this
media liason officer in the Gustafsen Operation boasts. If language is
to have any meaning at all, these statements seem to me crystal clear in
what is being communicated.

In the statements below I shall present some further elaboration of the
political character of what Mr. Pitawawanakwat is facing and further
evidence for my conclusions. A have several thick and growing files on
this matter in my office, so what I present below is designed to give a
short synthesis of matters that would require an enormous amount of time
and space to consider more comprehensively.

1. A Question about the Mobilization of Massive State Force,
All for Control of a Twenty- Acre Site of
No Apparent Strategic Importance

The Gustafsen Lake conflict involved a dispute over control of a twenty
acre sacred site in a very sparcely-settled part of what would look to
most observers like a vast wilderness area. There were no strategic
installations or infrastructures on the site. Why then would control of
such a seemingly insignificant plot of land give rise to the biggest
police and military operation in Western Canada since the military
campaign directed at Louis Riel and his Metis followers in 1885? I
contend that governments reacted along with some in the media in such a
draconian fashion precisely because the Gustafsen protest represented
such a formidable combination of political activists armed with such a
potent arsenal of political and constitutional arguments about BC’s most
politically-sensitive subject. Faced with this convergence of
experience, expertise and deep conviction, many powerful interests
rightfully felt menaced. The basis of their fear, however, was not for
the public’s safety, which was not in jeopardy, but rather that the
protesters harboured ideas that if acted on would menace the privileges
of those who had benefited the most from the exploitation of BC’s
lands-- lands which then and now are arguably, according to the
unextinguished imperial law of the Canadian Dominion, “reserved to the
Indians as their hunting grounds.” (Royal Proclamation of 1763)

2.The Gustafsen and Ipperwash Standoffs as Part of a Larger Continuum of
Actions inspired by the Philosophy of
the American Indian Movement

The Gustafsen Lake and Ipperwash stands in 1995 are part of series of
confrontations and standoffs that have provided society with flash
points of controversy and illumination involving one of this continent’s
most difficult and highly politicized human rights issues, namely the
marginalized and inequitable conditions suffered historically and now by
most Native American peoples. All these confrontations, including the
so-called “fish-ins” in Washington state in the late 1960s, the flare up
at Wounded Knee in 1973, the virtual civil war on the Pine Ridge
reservation in South Dakota in the mid-1970s, the controversies
surrounding the arrest, the extradition and conviction of Leonard
Peltier, the armed confrontation at Anicinabe Park in Kenora Ontario in
1974, the Oka crisis of 1990, the Peigan Lonefighters’ stand in southern
Alberta in 1990, and the episodes under consideration at Gustafsen Lake
and Ipperwash, all can be loosely associated with the American Indian
Movement.

The activists involved in each particular action will sometimes proclaim
a local designation for their group-- i.e. The Mohawk Warriors, the
Ojibway Warriors’ Society, the Defenders of the Shuswap Nation-- but the
basic principles and tactics essentially recycle the philosophies of
AIM. At different times over its history AIM has engaged and symbolized
the hopes and aspirations of many tens of thousands, or possibly
hundreds of thousands, of Native people. It has been very active in
Europe and at the United Nations. There is a very extensive academic
and popular literature chronicling the trials and tribulations, the
successes and failures of AIM. AIM has been dramatized by Hollywood and
there have been many documentaries made about it. While AIM has had
different organizational structures over the years, even as there are
arguments over who can and cannot use the name, AIM continues to live in
the hearts and souls of many principled First Nations patriots who saw
in the activities of those gathered at the Gustafsen Lake and Ipperwash
protest camps the actions of genuine freedom fighters rather than
terrorists.

3. The Philosophy of AIM and the Historical Background
and Contexts of the Ipperwash and Gustafsen Lake Stands,
as well as Other Native Resistance Struggles

Central to the basic philosophy of AIM is the idea that First Nations
people have been colonized, and that this colonization has involved the
cultivation of a class of Native collaborators who have derived personal
benefits from acting essentially as agents of federal powers over
Indians. The primary means of maintaining control over Indian nations,
AIM supporters tend to believe, is in the way federal transfer payments
and other government largesse is infused into Indian communities. The
laws and procedures governing those transfers tend to entrench the local
power of that class who are most adept at situating themselves closest
to the flow of federal dollars. In this way, it is alleged, a
propped-up Native elite obtain personal wealth for themselves, for their
families or for their tight networks of patronage cronies essentially by
advancing federal agendas over ones emanating from Indian tradition and
from the more grass-roots parts of Indian Country.

The perception that Indian Affairs in both Canada and the USA tend to be
administered through a top-down system of indirect rule, one which
works to obstruct the realization of more authentic forms of
self-government and self determination, is pretty well universal to
every situation where peoples are prone to see themselves as having been
incorporated into alien empires or hostile regimes. When we look back
at the internal politics of Blacks in South Africa under the regime of
White Minority Rule or when we look at the current contoversies among
the Palestinians over how to negotiate with, or continue resistance
against, Israel, we can clearly see the dynamics of tension between
so-called moderates and so-called hard liners. In the culture of Black
America, the idea of being a traitor to one’s own people is conveyed in
the tarring of those so accused with the label, “Uncle Toms.” Among AIM
activists a similar idea is communicated with the label “Uncle
Tomahawks.” Other labels of condemnation are “Vichey Indians,” “Hang
Around The Fort Indians,” or “Apple Indians,” that is red on the outside
and white on the inside.

The culture and philosophy of AIM took form largely in those jails and
prisons in the USA and Canada which have a disproportionately high
representation of Native inmates. As with many decolonization
movements, prisons provided the opportunity for study and reflection and
collaboration among Native inmates, whose experience of being
incarcerated in such high numbers was part of a much larger pattern of
subjugation, oppression and marginalization. From the prisons AIM moved
into activism in some of the urban ghettos of North America where there
were and are high concentrations of Native people. AIM’s early leaders
addressed issues like systemic racism in urban police forces or in
social service agencies.

As AIM developed it more and more took on the personality of a class
movement within Indian Country, to give a voice especially to the most
marginalized and disenfranchised of First Nations peoples, that is the
poor and unemployed in urban ghettos or the so-called “full bloods” and
“ traditionalist” on many reservations and reserves who did not have the
inside track on government jobs and programs. AIM also tended to
provide a forum of activism for those many Native people that for a
variety of reasons have been denied recognized Indian or tribal status
from the governments of Canada in the United States. Indeed, the whole
idea of non-Aboriginal governments playing the role of arbiter and gate
keeper of First Nations nationality was taken as proof of the profoundly
colonized nature of contemporary Native American experience.

The class nature of AIM’s role in Indian Country was clearly displayed
for the attentive in the virtual civil war on the Pine Ridge reservation
in South Dakota during the mid 1970s. In that conflict almost 100
individuals were murdered, most on the AIM side of the confrontation
with the federally-backed, self-declared GOONs of the regime of Tribal
Chairman Dick Wilson. In the lead up to the class-based Civil War at
Pine Ridge, AIM undertook its most characteristic stand at Wounded Knee
in 1973. During this conflict, essentially the Mother of all similar
standoffs since, the hymn book of government media liason tactics for
such confrontations was written, or at least revised from those used by
ealier generations.

That public communications strategy was based on a few predictable
themes, exactly the same ones which the RCMP used during the Gustafsen
Lake standoff. That mantra declared the the AIM activists were largely
unelected and that they did not enjoy the support of the local,
federally-funded Native governments; that they were a splinter group of
radicals in no way representative of more general Indian opinion; that
they were composed largely of so-called “outside agitators,” many of
whom did not have tribal affiliation with the local First Nation and
many of whom had criminal records; that they were terrorists and ex-cons
without any principled and closely reasoned motivations for their
defiance of duly-constituted authority; that they were publicity hounds
and self-serving wannabees seeking the media spotlight for no other
reason than personal vanity or the lust to destroy or acquire private
property.

In fact these rationales for government militance in Indian fighting go
back in the USA at least to the era of the War of 1812. In seeking to
dismiss the legitimacy and the seriousness of the stand taken by 12,000
mobilized Indian soldiers who rose up under Tecumseh’s influence to
defend their lands from American expansionism, Lewis Cass, a former
Michigan Territory Governor and chief propagandist for the federal
republic’s Indian policy, made the following accusations: He
charcterized the Indian soldiers in the most serious Aboriginal
resistance struggle the USA has ever faced as nothing but the “deserters
from a few tribes.” Cass continued, asserting in his polemic directed
largely at a European audience: “The acknowledged government of each
tribe disavowed any participation in their projects. And they were in
fact a lawless predatory band, obeying no common authority, and seeking
no common authority, and seeking no rational object.” (Lewis Cass,
Remarks on the Policy and Practice of the United States and Great
Britain in the Treatment of Indian Nations (from the North American
Review), (Boston: Frederick T. Gray, 1827), pp. 26, 38

Lewis Cass became Secretary of State and almost made it to the US
presidency based largely on the reputation he had acquired for himself,
both in pacifying the USA’s tumultuous Indian frontier and then in
shielding the USA from negative foreign publicity that might have
focused on the ruthlessness and illegal nature of the tactics employed
in the American republic’s legendary western expansion. Cass was, for
instance, a key operative in the forced removal of Indian nations beyond
the Mississippi. The most characteristic episode in this saga was the
famous Trail of Tears, part of one of the clearest instances in recorded
history of full-fledged ethnic cleansing.

I found it extremely instructive when I discovered Cass’ literary gem,
how all the major themes to discredit Native freedom fighters even to
this day were already in place by the early nineteenth century. The
fact that the Indian resistance movemment led by Tecumseh was also a
defence of Canada, with the British imperial government fighting in
close alliance with the Indian Confereracy, gives an important clue
about why the Gustafsen protesters emphasized so much the idea that the
imperial law of British North America is being violated in the way that
British Columbia has developed without any fundamental reckoning with
the principles of Aboriginal title through the negotiation of treaties.
While that old controversy is now being addressed through ongoing treaty
negotiations, it was the contention of the Gustafsen protesters that the
format of the bargaining denies the international character of what is
really at issue. Moreover, there is nothing in the process to guard
against the corruption of the process through subtle forms of bribery
which historically have been the bane of land negotiations between
Indian groups and federal treaty negotiators.

In the era of the American Revolution and the War of 1812 the Indians
fought in alliance with Red Coats, whose Generals promised the First
Nations many things on behalf of the British sovereign. It seems,
however, that in 1995 at Gustafsen Lake the Red-Coated Mounted Police
had changed sides to act more like Blue Coats in the famous
militarization of the American West. This militarization encouraged an
expectation among some that Canada no less than Indian Country would
eventually succumb to the Manifest Destiny so integral to the expansive
regime that has become the world’s most powerful polity under the banner
of the Stars and Stripes.

Given this historical background, it could be said that the protesters
at Gustafsen Lake had some justification in seeing themselves as
standing in resistance to an insurrection on the part of the BC and
Canadian governments, who, they had good reason to believe, had defied
the imperial constitional law of British North America with the
formulation of domestic statutes and jurisprudence hostile to the
country’s deeper constitutional foundations. The protesters thus could
legitimately picture themselves not only as advocates of First Nations
sovereignty but also as defenders of a menaced rule of law in Canada,
which already has the legal capacity to embrace their political
objectives and aspirations, not only for themselves but for all First
Nations peoples.

The main problem as the Gustafsen protesters and their harshly-
persecuted lawyer saw it, was that Crown officials simply would not
acknowledge and enforce the existence of Aboriginal and treaty rights,
principles already entrenched in the very roots of the Canadian
constitution and renewed with the Constitution Act, 1982 . These
constitutional roots and their more recent outgrowths are based on a
history of alliances with First Nations, especially through the medium
of a vast northern fur trade. Until the completion of the Canadian
Pacific Railway in 1885 the fur trade of the London-based Hudson’s Bay
Company and the Montreal-based Northwest Company (which, incidentally,
was the most successful early colonizer of Oregon Country) were the main
means for the Crown to maintain its land claims to those vast parts of
Canada. To this day much of Canada has never been densely settled by
non Aboriginals, and Native peoples remain numerically dominant or
significant over of much of Canada’s huge land mass.

That history of imperial military and commercial alliances with First
Nations, a history which several times made Indian people the Crown’s
main shield of military defence in preventing Canada from being absorped
into the United States, has been translated into a legal and historical
inheritance which gives great substance to Canada’s constitutional
recognition of Aboriginal and treaty rights. This historical experience
is very different from that of the USA, a republic founded in
insurrectory rejection of the imperial monarchy and the constitutional
principles of protecting Indian rights that King George first codified
in the Royal Proclamation of 1763, one of the major points of
ideological contention in the genesis of the American Revolution and one
of the major points of ideological contention in the genesis of the
Battle of Gustafsen Lake.

Rather than looking to the imperial underpinnings of the rule of law in
Canada, the RCMP, the BC AttorneyGeneral and federal cabinet looked in
1995 to the arsenal of propaganda tactics first worked out by Lewis Cass
and elaborated in the mid-1970s during AIM’s confrontation at the Pine
Ridge reservation with federal government along with the
federally-funded tribal officials and the their para-military GOON
supporters. In conducting a disinformation campaign in 1995 aimed at
discrediting the protesters, the RCMP and their political masters
blacked out journalistic coverage of the Native camp and presented the
media with a stream of Indian people employed in the elected and
appointed technocracies of federally-funded and federally-legislated,
Indian Affairs structures.

Not surprisingly, these Indian commentators were generally hostile to
the protesters because the Gustafsen stand called into question the very
format of relations on which their employment, their livelihoods and
their local power depended. These individuals were inclined naturally
to feel threated or insulted by the kind of analysis emphasized in AIM,
analysis stressing the colonial character of class relations in Indian
Country as well as the dynamics of a federally-conceived and
federally-funded systems of indirect rule. The very political motivation
of the police as well as those in government who so far have
successfully evaded taking political responsibility for the RCMP’s
disinformation strategy, was to mislead the public, whose background
understanding of the internal complexities of Indian politics is
generally low or non existent. The aim was to exploit this void of
public understanding; the aim was to play on public stereotypes about
the perceived gulf between “good” and “bad” Indians, wild Indians and
civilized Indians, poor Indians and polished Indians, untamed Indians
and our Indians.

In looking at the way these racial stereotypes became the currency of
media reportage, Miles Morrisseau, one of Canada’s most experienced and
respected Native journalists, commented as follows in a publication
entitled Aboriginal Voices. He addressed a largely Aboriginal
readership in the autumn of 1995 as follows:
The recent events in Gustafsen Lake, BC and Stoney Point Ontario
[Ipperwash] show how the media can’t seem to get enough of the
savage/noble savage stereotype while ignoring the fundamental truths
about the Native/Colonizer relationship. In modern-day society the
stereotype becomes the gun-totting militant (savage) and the
peace-loving negotiator (noble savage)... In the early part of the
[Gustafsen] standoff the media ran wild with theories about the people
inside. They were cultists who believed in a New World Order which
controlled governments, the media and multi-national corporations. They
were radicals who were not supported by the First Nations. They were
outside agitators who had no connection to the Native communities in the
territory itself. The group was branded, “Terrorists, militants,
renegades, rebels, and criminals,” by government officials, police,
journalists and commentators. The words are all modern-day versions of
“ savage” and it represented a point of view that the public was quick to
swallow; after all they’ve been eating it for 500 years. (Miles
Morrisseau, “Seeing Savages Behind Every Bush: How the Media Missed the
Full Story behind Gustafsen Lake and Stoney Point, Aboriginal Voices,
Autumn, 1995, p. 6)

I believe the RCMP and their friends in the media very deliberately
planted in the public mind the “savage” impressions described by
Morrisseau. This communication’s strategy resulted in the public
perception that there was nothing substantial, principled, or
broadly-representative in the ideas and positions motivating the
Gustafsen group. Only in this way could attention be diverted from the
tremendous level of commitment and determination that was necessary for
the Gustafsen protesters to withstand such an onslaught, day after day,
of such a massive assemblage of coercive state power. Of all the
dangerous weaponry deployed by Crown officials, however, none was more
destructive of the fragile fabric of civil society than the tactics of
ideological warfare directed at creating perceptual chambers of smoke
and mirrors to trick attention away from the failure of the country’s
elites to deal credibly and decently with what I view as the deepest and
most complex legal and human rights issues that Canada faces. That
matrix of abuse inherited from history, I believe, forms a significant
part of the continental commonalities my own country shares with the
United States.

The proof that the police were very calculating in their efforts to
distort public opionion and to hide the truth is that they described
their own communications strategy as one of “disinformation and smear.”
The evidence is overwhelming that in pursuit of this strategy many
fundamental laws were broken in a concerted campaign of systematic
slander, defamation and thinly-veiled racism. There was little or no
respect on the part of law-enforcement officials for the complexity of
the truth of what the Gustafsen protest represented or the many-faceted
requirements of due process in such an overcharged atmosphere, where the
chief law officer of the province seemed to be advocating
vigilante-style approaches reminiscent of so many of the continent’s
Indian wars which have pumped up and inflated so many political careers
in the course of American history. The outcome represents an enormous
breech of the public trust vested in government, but especially in
Canada’s agencies of law enforcement. As for the effect on First
Nations people, one media commentator sympathetically cited a source
saying, “Its set relations between them and the police back 100 years.”
(Joey Thompson, “Media Should Apologize for Gullibility on Gustafsen
Lake,” The Vancouver Province, 26 September, 1997, p, A12)

4. The Gustafsen Lake Standoff and Public Perceptions,
but Particularly Native Public Opinion

In spite of the RCMP’s very concerted media relations strategy of
disinformation and smear there were a number of dissenting opinions that
were reported in the mainstream media at the time. For instance I
entered the fray in an article which appeared in The Globe and Mail on
September 5, 1995, at the very height of the standoff. At the time The
Globe was the only daily newspaper in the country distributed nationally
rather than merely regionally. In the days before I wrote the piece, my
only source of information on the Gustafsen standoff was the mainstream
media. When I saw on TV, however, that Dr. Bruce Clark was the lawyer
for the group in the Native camp, I decided to write something based on
my familiarity with that scholar’s published work, but especially a
volume entitled Native Liberty, Crown Sovereignty (Montreal, 1990) I
had recently reviewed that text in manuscript form for an academic
publisher, namely McGill-Queen’s Press. As it turned out, McGill
Queen’s accepted my recommendation to publish as a book this revised
version of Clark’s Ph.D. Thesis, written originally for the University
of Aberdeen in Scotland.

My article included a few direct quotes from Native Liberty, Crown
Sovereignty. I also contrasted the lawyerly philosophies of Dr. Clark
and Ovide Mercredi, who was a parachuted into Gustafsen Lake, apparently
by the police, in his capacity as National Chief of the Assembly of
First Nations. The leader of that organization is elected by the 633
federally-recognized Indian chiefs in Canada. These chiefs, in turn,
draw their power from local band elections governed by the authority of
the federal government’s Indian Act. Attending this structure is the
flow of federal transfer payments to Indian bands, which must run
through through the administrative structures overseen by these local
band chiefs.

Chief Mercredi was featured prominently among the Indian people
presented to the media to criticize the Gustafsen protesters. My short
piece was an attempt to clarify the difference between the nature of the
constituencies who tend to identify with the two different arguments of
these two accomplished practitioners of the law of Indian rights, namely
Merecredi and Clark. In the course of making this contrast, I quoted
Clark’s ironic comment that “It may well be that the rule of law is a
cruel hoax and that I’m not doing anybody any good, particularly these
Indian people [in the protest camp], by persuading them to give the rule
of law a chance.”

While The Globe has published many of my articles over the years, they
usually take some time to decide. In this instance that article
appeared only a couple of days after I’d written it. Somebody at the
paper had given it the title, “The Philosophical Conflict That Animates
Gustafsen Lake.” Whoever authored this headline, one seen throughout the
country, was apparently not buying the police line that there was
nothing going on except enforcing the criminal code on a group of
terrorists intent on stealing the private property of a rancher. The
headline acknowledged that there was a philosophical content to the
clash underway over who would control the twenty-acre sun dance site.
At the core of this struggle for control was a conflict between, on the
one hand, the protesters’ position that their posture was one of
self-defence to resist being illegally displaced from unceded Indian
land and a sacred site, and, on the other side, the government’s
position that police and army personnel were engaged in an act to
protect public safety as well as to protect from trespass the private
property of Lyle James, an absentee American rancher.

Several days after my article appeared, the National Offices in Ottawa
of the Assembly of First Nations were taken over and occupied by a group
of First Nations protesters proclaiming the basic tenets of the AIM
philosophy. They accused Chief Mercredi of being a dupe and a
collaborator with the forces of federal oppression of First Nations. I
believe the transcript of the trial proceedings of the Native activists
who maintained their occupation of the AFN offices for several days is
rich with testimony about the preception that federal subjugation of
First Nations peoples tends these days to work through the co-optation
of those who control federally funded Indian organizations and band
governments.

In the days ahead The Globe and Mail published a letter to the editor
critical of my piece, “The Philosophical Conflict That Animates
Gustafsen Lake.” The Native author, Kimowanniwi Piyesiw of The Pas
Manitoba, criticized my piece not for being too critical of Chief
Mercredi, but for not being critical enough. He wrote,
What Canada is witnessing at Gustafsen Lake and Ipperwash is the
manifestation of a widening gap between the ‘elected leadership’
personified by Mr. Mercredi and ordinary First Nations people. To the
ordinary First Nation person, the elected leadership has evolved into a
complacent entity totally dependent on the government teat. What is
being said is that the endless negotiations occupying the political
agenda is benefiting the wrong people. It is time for Mr. Mercredi to
step aside and make room for more determined resistance to the violation
of our rights.”(Cited in Hall, “Who Killed Dudley George: Reflections on
Ipperwash and Gustafsen Lake,” Canadian Dimension, December,1995/
January, 1996, p. 9)

In spite of the internal tensions of Indian politics that converged in
the Gustafsen Lake standoff, there was has been a broadening of
understanding about what was really at issue as gradually the truth has
been able to make inroads into the thick web of misunderstanding
generated by the disinformation and smear campaign. For instance, the
Assembly of First Nations is firmly on record as calling for a public
inquiry into the fiasco. Former AFN Chief Ovide Mercredi has also
personally re iterated that call for a public inquiry. Another wave of
Native indignation has been generated from the frequent broadcasts on
Canada’s new Aboriginal Peoples’ Television Network of Above The Law,
Part 2.

That documentary prompted the network’s own public affairs unit to do
its own show on the Gustafsen affair. That program, produced, directed
and hosted by Native staff, emphasized the high level of police violence
as well as the commentary of Constable Bob Woods. Constable Woods is
the Native RCMP officer who along with two other Native colleagues
policed the Gustafsen sundance site during the two months when the
Native religious ritual was taking place. Constable Woods, who has
since resigned from the RCMP, is adamant in his interview that when the
sundance was over, nothing would have happened if the campers had not
been provoked into a confrontation by the RCMP. He said the RCMP began
their hostile manouevres by pulling him and the other two Native
Constables from the site. Constable Woods is very candid about his
perception of the problems within the RCMP and the way the Gustafsen
affair was the product of political manipulation emanating somewhere
high up in the government.

Early this sunmmer the Canadian Broadcasting Corporation’s television
unit in Yellowknife, capital city of the Northwest Territories, devoted
one of its magazine shows to the Gustafsen affair. That particular CBC
outlet broadcasts to a largely Indian and Inuit audience throughout
Canada’s vast northern lands. Lee Selleck, the CBC reporter in
Yellowknife who is a seasoned veteran of both Native broadcast and print
media work, interviewed separately both me and Sargeant Peter Montague.
The tape of that May 29th telecast, which can easily be made available
in the course of these proceedings, would clarify what I see as the
determination of the RCMP not to change its story in spite of the large
body of evidence on the public record that does not corroborate their
version of events.

In March of this year it was reported on the air waves and web site of
CBC Vancouver that “the RCMP handed out awards to more than 350 officers
and civilians involved in the Gustafsen Lake standoff five years ago.”
The CBC then reported that “The president of the Union of B.C. Indian
Chiefs says he’s outaged by the awards. Stewart Phillip says Gustafsen
was a disgusting example of police using force to stifle the voices of
native people.” (CBC Vancouver website, 10 March, 2000)

The Union of British Columbia Indian Chiefs is one of the oldest Indian
political organizations in Canada. It is one of only two chiefs’
organizations in Canada’s westernmost province. The unequivocal wording
chosen by Chief Phillip, an elected official who in theory represents
about half of the registered Indians of British Columbia, makes it clear
that there is no basis for those who would argue that the Gustafsen
protesters lack mainstream support from the elected branches of Indian
leadership. Another very significant intervention was made by Chief
Arthur Manuel, whose extensive executive responsibilities combine a
number of important elected positions in BC Indian politics including
the elected jobs of Neskonlith Indian band chief, Chairman of the
Shuswap Nation Tribal Council, Chairman of the BC Interior Alliance, and
Co-Chair of the Assembly of First Nations Delgamuukw Implementation
Committee.

In a press release issued last spring, Manuel said, “We have viewed the
video tape entitled, Above The Law, and there is disturbing evidence of
the use of land mines by the federal and provincial governments against
our people contrary to the Canadian International campign to eliminate
the use of land mines.” These comments followed Chief Manuel’s
insistence that “there should be an independent public inquiry” into all
the circumstances surrounding the standoff at Gustafsen Lake. Chief
Manuel is among the leading Indian voices in BC critical of the present
format of the 50 treaty negotiations underway to address the question of
unceded Indian land title to most of British Columbia. His position on
this matter is quite consistent with that of the Gustafsen protest.

Arthur Manuel is the son of the now-lendary George Manuel, a former
chief of the forerunner of the Assembly of First Nations who co-authored
with Michael Posluns a book called The Fourth World, (Don Mills Ontario:
Collier-Macmillan, 1974). That book was a pioneering effort in
demonstrating the common linkages between the colonized condition of
Indigenous peoples all over the world. On the basis of these insights
George Manuel, a Shuswap leader, founded the World Council of Indigenous
Peoples in 1975. The organization subsequently obtained NGO status at
the United Nations. Thus the Gustafsen stand, which took place on
Shuswap Territory and with some Shuswap activists, was quite consistent
with the kind of internationalist perspectives that George Manuel
pioneered among the Indigenous peoples of Canada and the whole world
during the 1970s.

Unlike Chief Mercredi in 1995, George Manuel when he was National Chief
of the body representing Canada’s elected Indian chiefs worked quite
closely with the AIM activists of his time. In particular, Manuel was
sympathetic to the positions of the Ojibway Warriors’ Society in Kenora
Ontario, who in 1974 made a stand at Anicinabe Park. Much of the
organization and theoretical substance of that action was given by Louis
Cameron, who led a Native Peoples’ Caravan that converged on Ottawa and
established a Native Embassy on an island on the Ottawa River.

The Gustafsen protesters, like George Manuel, his son Arthur and the
many Indian people who look to these individuals for leadership,
emphasized that the resolution to the BC land dispute must be found in
the arena of international as well as domestic law. I believe there is a
very powerful informal alliance of interests in both Canada and the
United States who share strong vested interests in not wanting to see
the internationalization of Indigenous peoples issues. In my estimation
that reality forms a big part of the explanation for the overwhelming
show of force every time that AIM or an AIM-related group makes some
sort of symbolic stand to declare Indian sovereignty. As I see it, the
essence of that position is to clarify and demonstrate that at least
some First Nations citizens will never agree to see their own
nationalities completely domesticated under the laws of the very
governments that have appropriated or expropriated their lands, their
resources and their basic human freedoms by a variety of means, some
consistent with the rule of law and some outside the rule of law.

5. How the Gustafsen Standoff is Viewed among Some Academics,
Some Professional Organizations and Some Journalists

At both the time of the standoff and in subsequent years, the Gustafsen
affair has been cited by many non-Aboriginal pundits and scholars as
indicative of a number of perceived ailments, especially insofar as the
episode indicates that something is seriously wrong in the sensitive and
complex area of relations between the political branches of government
and the law-enforcement branches of government. This more general
subject has received particular attention recently when the RCMP and
their political masters in the Canada’s Liberal government of Prime
Minister Jean Chretien were accused of major wrongdoing in their
aggressive handling of student protesters at the University of British
Columbia in 1997. The pepper spraying and dubious arrests of some
students took place during a Summit meeting of world leaders who met to
plan the actions of the organization known as APEC, the Asian Pacific
Economic Co-operation Area.

In a book of essays exploring that issue, Professor Margot E. Young of
the Law Faculty at the University of Victoria referred to the
interlinked Gustafsen and Ipperwash affairs as indicative of a more
pervasive pattern. She and most of her fellow essayists in a volume on
the APEC affair drew attention to the failure to achieve in Canada a
proper balance between the need for the independence of law enforcement
agencies and the need to submit their activities to some measure of
political direction and civilian oversight. In that context Professor
Young wrote,
Canadians and their governments are not always quick to investigate
potential police abuses of power. A range of examples illustrates this
point. In 1995 the Ontario Provincial Police shot at and killed a
member of a group of Native protesters occupying Ipperwash Provincial
Park. To date, no provincial inquiry into this shooting death has been
called, despite condemnation of this refusal by the United Nations Human
Rights Committee. Similar potential police misconduct may have
characterized the Gustafsen Lake dispute in British Columbia in 1995.
Here too, the events have remained largely uninvestigated, and media
coverage dipped sharply as time passed. [Margot E. Young, “’Relax a Bit
in the Nation:’ Constitutional Law 101 and the APEC Affair,” in W.
Wesley Pue, ed., Pepper In Our Eyes: The APEC Affair, (Vancouver: UBC
Press, 2000), pp. 52-53]

In that same volume Professor Philip C. Stemming of the Centre of
Criminology at the University of Toronto wrote a paper which detailed
very specific proposals about how to safeguard against the manipulation
of the RCMP as an agent of political agendas rather than as an agent of
law-enforcement agendas. In January of 1996, that same Professor
Stemming wrote a letter that was published in The Globe and Mail about
the apparent wall of silence surrounding some key aspects of the
Gustafsen standoff. I for one saw such deep significance in the letter
that I cut it out and put it on my bulletin board. It has retained its
prominent place ever since. There is nothing that I have learned to
date that would cause me to see Professor Stemming’s letter as dated or
no longer relevant.

I shall cite the entire document as an illustration of the very serious
and substantial kinds of questions that have been pressed on officialdom
by very credible sources who have raised major concerns and questions
over what really happened at Gustafsen Lake in 1995. Under the
headline, “A Few Questions,” Professor Stemming commented,
Now that Canada has decided to try to set an “example” over land-mine
use, perhaps it is time to ask some questions, and get some clear
answers, about just what happened at Gustafsen Lake last year.

In September, your newspaper carried the following item: “The gunfire
came after police disabled a red truck [in which Mr. Pitawanakwat was a
passenger] that had entered what RCMP have labelled a no-go zone that
extends for five kilometers around the camp. The truck was disabled by
a device police had planted in the road and exploded in flames after
police opened fire and the vehicle’s occupants fled into the bush”(Three
Indians Shot In Fight With RCMP, The Globe, Sept. 12)

If this story was accurate, just what was this “device” (or were there
more than one of them?) which the police (or the army?) had laid outside
the native encampment? And why, and by what authority (and on whose
authority) was such a “device” deployed in this way in circumstances
such as these? And why were these questions not asked and answered at
the time? (The Globe and Mail, 24 January, 1996)

To the best of my knowledge none of the questions pressed by Professor
Stemming in 1996 have to this day been even meaningfully addressed, let
alone satisfactorily answered. That impenetrable wall of silence or
double talk on an issue that has such important symbolic meaning for
Canada by virtue of this country’s leading role in the global anti-land
mines treaty, (which the USA still refuses to ratify) to me represents a
profound failure of public accountability. At core it is the
accountability issue that is the one pre-eminent political issue that
continues to hover over and permeate the whole Gustafsen affair. If a
government cannot be held accountable for deployment of the instruments
of international warfare in what are arguably domestic human-rights
disputes over a constitutional issue as fundamental as that embodied in
the Indian land-title issue, what hope is there of holding governments
accountable for lesser issues?

All that the public has been given on the issue of land mines at
Gustafsen Lake as far as I know is a semantic distinction, without any
real explanation, that refers to “military land mines” and something
called an RCMP “disabling device.” (see Murray I. Johnston, Commanding
Officer of the RCMP’s E Division in Vancouver, “The Facts About
Gustafsen,” The Vancouver Sun, 1 March, 2000, p. A13) To my
simple-minded way of thinking, if its in the ground, and if it is
designed to blow up, and if it can kill or maim you when it explodes,
its a land mine.

The idea that you deny something is true by simply inventing obfuscating
terminology is quite consistent with the type of thinking that would
transform an Army Armoured Personnel Carrier by attaching the word,
“ POLICE,” to its side. Its still an Army Armoured Personnel Carrier. And
a land mine by any other name would explode as violently. The double
standard of Canada in projecting itself to the world as a leading
anti-land mines proponent while covering up at home and abroad the
military and ideological warfare tactics used in a local Indian war,
seems to me indicative of a larger political pathology that consistently
situates human-rights abuses as someting which only happens in somebody
else’s back yard, but never in one’s own.

Within some elements of the legal profession too there have been
expressions of profound unease and discomfort with the tactics of
law-enforcement agents at Gustafsen Lake. One example of this form of
professional critique was penned by Kenneth A. Price in The Verdict, a
publication of the Trial Lawyers’ Association of British Columbia.
Price’s emphasized in October of 1995 the tactics of the RCMP in
manipulating the media to inflame public opinion against the group of
Native and non Native activists. Price wrote,
It was evident right from the beginning of the standoff that the RCMP
were intent on marshalling the media, and, thus, public opinion, into
making certain bald assumptions about the background and motives of the
protestors, so as to justify all methods used by police in the
standoff. From the outset, the RCMP were clearly intent on managing the
politics of the situation [my emphasis] so as to leave the impression
that the armed campers were terrorists... The [RCMP’s] news conferences
at 100 Mile House [led by Staff Sargeant Montague] took place in the
atmosphere of a military strategy briefing. What purpose did these news
conferences serve? Clearly they had no impact whatsoever in dealing
with the problems of reducing tension and ending the stand-off. To the
contrary, the news conferences were obviously designed to inflame public
opinion against the protesters, and to disseminate propaganda designed
to give political justification [my emphasis] to the actions of police.
Obviously, information regarding criminal records of the protesters was
released with similar intent. The media were never allowed to go into
the camp and interview the protesters. The police took special care to
ensure this would not happen. Obviously, for the RCMP, one side of the
story was better than two... The same thing happened in the Gulf War.

Mr. Price held Attorney-General Dosanjh largely responsible for the free
reign of the police in handling the politics of the protest. He wrote,
the Attorney General never made it clear to the people of British
Columbia whether in fact it was his office or the RCMP who were
directing the political response to the protest [Price’s emphasis]... A
dangerous precedent may [thus] have been set by the Attorney General.
By trying so hard to distance himself from the law enforcement operation
underway at Gustafsen Lake, he left the RCMP free to manipulate the
politics of the situation.”

In referring to the role of the Gustafsen protesters’ lawyer of choice,
namely Dr. Bruce Clark, and the possibility of a fair trial following
the standoff in light of the police abuses of due process, Kenneth Price
wrote,
Whether or not we agree with his methods or his personal views, Mr.
Clark was entitled, at all times, to speak for his clients. He was the
first one to object to the RCMP’s using the word “terrorist” to describe
the rag-tag bunch camped on the ranch. Whatever else happened at 100
Mile House, it is clear that the police ultimately did everything
possible to discredit Mr. Clark and to prevent him from expressing the
position of the protesters. [My emphasis] Now the standoff is over,
lawyer Richard Gibbs makes the same points, arguing that the RCMP’s
control of communications and propganda in this case [my emphasis] will
make it impossible for the protesters to get an impartial jury. We have
no real way of knowing until a trial occurs, whether or not the version
of events disseminated by police is correct or all hogwash. We do know,
however, that unearthing the facts will be made more difficult because
of the RCMP’s methods. (Kenneth A. Price, “Editorial,” The Verdict,
October, 1995, pp. 2-5)

One regular columnist for The Vancouver Province, who went to the
conspicuously under-reported trial of the Gustafsen protesters, made it
very clear that the testimony she heard in court was totally
inconsistent with what the police had said during the course of the
standoff. The RCMP’s “spin doctoring,” she wrote, turned out to be
“ crock.” “We [journalists] got had,” the columnist concluded in an
article entitled, “Media Should Apologize for Gullibility on Gustafsen
Lake.” Here are some key excerpts of what I view as a very significant
mea culpa by a prominent BC reporter . Her piece, I believe,
represents a stinging indictment of her colleagues in the BC media, who
by and large have done nothing substantial to correct the disinformation
they disseminated in what amounts to a journalist barrage of slander and
defamation with decided racial undertones. Other than the odd
commentary like the one cited below, I am unaware of any attempt at
self-policing within the journalistic profession; nor does it seem from
the CBC Yellowknife’s interview with Sargeant Montague that the police
have altered in any way their version of events since 1995 in spite Joey
Thompson’s stunning critique. Thompson wrote,
When it came to covering the events clouding the 1995 Gustafsen Lake
fiasco RCMP took reporters for a ride. We bought the Mounties’ take on
what was going down during that tense month-long summer siege. Alot of
what we got-- and dutifully reported-- was crock. Its time we conceded
that and apologized to the natives and citizens of B.C.. The fact is
camp members weren’t the terrorists RCMP made them out to be. Nor did
they have the shootouts the police press releases claimed....

I hear operation commander Len Olfert and several other senior
strategists have been handed retirement pins. Sgt. Peter Montague, the
RCMP’s spin doctor was elevated to Staff-Sargeant, and moved out to
commercial crime. Montague, long-time palsy-walsy with a select crop of
reporters, was caught on camera telling his cohorts, “Smear campaigns
are our specialty”.... “I never believed he meant it as a joke,” said a
senior print reporter who covered the standoff. “After his [Montague’s]
testimony in court he lost alot of credibility in my eyes. He often
said his superiors didn’t tell him alot. But we found out he had been
party to alot of strategy meetings.”

“Those reporters who didn’t play by the rules were frozen out. Yet
they [the RCMP] were all we had to depend on for information. There was
an incredible amount of pressure to conform.” And so they did.
[concludes Thompson in her own voice]. Not even the most professional
and skilled of the scribes had the grit to step back and ask the tough
questions. [Nor have they to this day.]

I’m not saying the camp’s members had haloes for headgear. A few of
the 14 natives and four whites had criminal records. But an army of 400
officers in camouflage gear? A base camp dubbed Camp Zulu 10 kilometers
away, decked out with a field hospital, a communications control,
several choppers, a landing field, militia assault weapons and several
armoured personnel carriers? Not to mention an eight-month criminal
trial. Talk about overkill. One native officer [Constable Bob Woods]
quit the force after becoming fed up with RCMP. The entire affair cost
the taxpayer millions of dollars.

It cost the RCMP their credibility. All for a handfull of mischief
convictions and a few raps involving weapons. Court transcripts tell
the story; we got had.

Thompson concludes with a list of very serious allegations of police
wrongdoing, including that “Police illegally released the juvenile
record of several camp occupants.” (Joey Thompson, “Media Should
Apologize for Gullibility on Gustafsen Lake,” The Vancouver Province, 26
September, 1997)

As I see it, one of the problems in correcting the record of
disinformation and smear emblazened into the public’s understanding, is
that the mainstream media of Canada and BC were so deeply involved in
this wrongdoing that they would have to accept a major part of the
responsibility for misinforming their audiences. In this litigious
society of ours there could be major liabilities to be faced from this
kind of acknowledgment and introspection. Moreover, the mainstream
media is notoriously ill equipped for introspection and critical
self-inquiry. The result is a self-serving insistence that the
Gustafsen story and others like it represent old news and without
contemporary relevance. The pattern is continued where a wall of
official silence is maintained about what happened behind-the-scenes in
those modern-day Indian wars including what happened at Wounded Knee in
1973, at Anicinabe Park in 1974, at Oka in 1990, at the Peigan
Lonefighters camp in 1990, and at Ipperwash and Gustafsen Lake in 1995.
Just as there is a line of inspirational continuity linking the
motivations for these and other Native stands, so the means of
repressing these assertions of Indian jurisdiction are also connected
under a thick veil of officially-maintained silence.

The zeal of the media to latch onto the modern-day symbols signalling
the allegorical conflict between savagery and civilization-- or the
wild, untamed savage versus the noble savage, gave Miles Morrisseau his
major theme in his important article in Aboriginal Voices entitled,
“ Seeing Savages behind Every Bush.” Morrisseau concluded by contrasting
the mainstream media’s savage preoccupation with its unwillingness to
give the public access to the background information they would need to
make real sense of the Gustafsen standoff or other similar
confrontations. He wrote,
The media was quite happy to tell the story of the armed criminals, and
yet we don’t get to hear about how BC, the third largest province in
Canada, is completely unceded territory without a treaty. When this
fact was mentioned it was never elaborated upon or followed through in a
way that leads people to question who the criminals really are. Is it
the armed individuals who do not want to leave a tiny encampment or is
it the Canadian and provincial government who claim the entire province
and won’t deal with aboriginal land claims. (Miles Morrisseau,
Aboriginal Voices, Autumn, 1995, p. 6)

7.”CBC Radio’s Journalistic Independence Had Been Breached:”
Canada’s Public Broadcaster Investigates
Its Own Coverage of the Gustafsen Affair

When it comes to the behind-the-scenes details of the tactics employed
by the governments of North America in modern-day Indian fighting, it
seems that there is very little organized pressure from the public, from
the media, from opposition politicians or even from human-rights and
civil-liberties organizations to get at the full truth of what is
involved. The explanation of how the Indians lost so much of their own
country, and how that saga of dispossession continues from 1492 to the
present, is apparently not a phenomenon that commands many loud demands
for full public explanation among those constituencies who can best
mobilize and marshall major political clout. The exception to this
complacent acceptance of whatever seems necessay to conduct modern-day
Indian wars and then cover-up their existence is that small but
thoughtful minority who realize the enormous implications of official
criminality on the very frontiers of the rule of law.

Nevertheless, some doors have been partially opened in the kind of
investigative and accountability exercise some of us we have informally
mounted. Beginning in 1998 I joined my efforts with those of John
Shafer, a campus radio broadcaster in Victoria, in an effort to persuade
the Ombudsman at the Canadian Broadcasting Corporation to do an
investigation of the Crown corporation’s coverage of the Gustafsen
conflict. After I had a lengthy visit with him at the Toronto
headquarters of the CBC, David Bazay, the public broadcaster’s Omudsman,
came up with such a report framed in the form of a 12 page letter to me
dated 24 November, 1999. Given what I see as the importance of this
document emanating from a high-level source both within government and
within the mainstream media, I shall quote from the Bazay report
extensively.

Basically, Mr. Bazay acknowledged that the RCMP created an extremely
difficult journalistic situation by cutting off all communications with
the protest camp. Much of his report was based on quotes and
paraphrases from Sandra Lambertus, a Ph.D. candidate writing her thesis
at the University of Alberta on the coverage of the Gustafsen Lake
confrontation. Here is how Mr. Bazay affirmatively described his
discussion with Ms. Lambertus:
In an interview, Ms Lambertus says the RCMP developed a sophisticated
strategy designed to bring the media under its control. She says, “The
effects of the media strategy were magnified with the RCMP operational
initiatives at Gustafsen Lake, many of which followed standard operating
procedures.” For example, by setting up barricades and sealing off the
the camp, she says, the RCMP became the gatekeepers and thus many news
stories were published and broadcast “without journalistic witnessing.”
In her view the barricades provided police with the opportunity to
dominate interpretation of the standoff. “There was no way to confirm
if the RCMP were giving the full story-- or the degree to which it was
sanitized or exaggerated-- or if they were giving any part of the story
at all.” The RCMP could give out information, or withold it, at will.
The media became vulnerable to the discretionary power to control and
limit new information. The police defined what was “news”.... She says
the campers appeared to be succeeding in getting their land claims
issues into the foreground at the beginning of the dispute, but when the
RCMP airlifted Vancouver journalists to the scene and sealed off the
camp, she says “the RCMP took the media frame away away from the camp
and established an interpretive frame of the people in the camp as being
dangerous.”

I have seen and heard several references on this so-called “RCMP airlift
[of Vancouver journalists] to the scene,” and it strikes me as a subject
that would bear more investigation. The Bazay report referred to
considerable consternation and unease on the part of several reporters
with the one-sidedness of the news-gathering environment. One journalist
compared her experience with the milieu at Oka. Mr. Bazay wrote,
Dale Drewry drew a comparison between covering the standoff at
Gustafsen Lake and covering the crisis at Oka [in 1990]. At Oka, she
said, reporters had direct access to both protesters and police as
events unfolded. But at Gustafsen Lake she felt that the RCMP had
developed a different strategy, the strategy of “getting the message
out” by denying access to the other side of the story. “The difference
between covering Oka and covering Gustafsen Lake was the difference
between night and day. The police consider their strategy a huge
success. I think we’re going to see more of this kind of strategy in
the future.”

Mr Bazay’s report makes extensive reference to Sargeant Peter Montague,
the RCMP’s media liason officer who has continued to represent the
government on the Gustafsen file until this day. The Bazay report
quoted Sargeant Montague’s repeated references to the the Gustafsen
protesters “criminal agenda,” a phrase that I heard the RCMP official
repeat once again on in his televised interview on the Gustafsen Lake
standoff with CBC Yellowknife reporter, Lee Selleck, on the 29th of May,
2000.

After referring to “the disparities between what the RCMP said during
the standoff and what “really happened’ at Gustafsen Lake,” Mr. Bazay
wrote as follows:
The other controversy about the news conference was the RCMP’s release
of the names and criminal records of people supposedly inside the camp.
Sgt. Montague was later quoted as saying this was done to smear the
reputations and to destroy the credibility of the protesters as part of
what he described as “psychological warfare.” [my emphasis]”

In my view the most serious revelation to emerge from the Bazay report
is the account of Sgt. Montague’s direct intervention with the news
branch of CBC Radio in British Columbia in order to commandeer
unmediated access to broadcast a police propaganda message on the
airwaves of the Crown Corporation. The account of that episode came to
Mr. Bazay from Jeffrey Dvorkin, who was head of CBC Radio news during
the standoff. Mr. Dvorkin is presently Vice-President of News at
National Public Radio in the United States. Of Mr. Dvorkin, Mr. Bazay
wrote,
He says he received a telephone call from the then Director of Radio in
Vancouver, informing him that the RCMP’s Sgt. Montague had made an
urgent request to broadcast a special message into the camp. His
understanding was that a hostage-taking was underway. The Director of
Radio (DOR) in Vancouver was told that by Sgt. Montague that lives were
at stake and that only by broadcasting this special message would lives
be saved. Sgt. Montague put a great deal of pressure on the DOR to
comply. [Said Dvorkin], “I had five minutes to make a decision about a
situation I could not verify. I made the decision that CBC Vancouver
could broadcast the special message believing the RCMP that lives were
at State.” Mr. Dvorkin said this proved untrue, and he wrote a letter to
the RCMP commissioner “to protest against the manner in which the CBC
had been manipulated in order to help the police..” [my emphasis]

Mr. Bazay quotes Mr. Dvorkin as saying that it was a very serious
mistake to have to have allowed the RCMP unmediated access to the
federal Crown Coporation’s air waves based on such an outright
misrepresentation. “CBC Radio’s journalistic integrity was breached,”
said Mr. Dvorkin, who has overseen the news divisions of major public
broadcasting operations in both Canada and the United States.

I telephoned Jeffrey Dvorkin myself to discuss this incident with him.
During the interview Mr. Dvorkin compared the Gustafsen Lake fiasco to
the Somalia Scandal, which he reminded me had become a major news item
largely because of the investigative journalism of reporters working for
him at CBC Radio. The chain of command in the Somalia Scandal,
involving the cover-up of incidents where Canadian soldiers tortured and
murdered Somalia citizens, was largely the same group involved in
engaging the Canadian military in Canada’s best-concealed, modern-day
Indian war.

My main question to Mr. Dvorkin was how come the RCMP’s lying did not
trigger the same sort of process that kicked in when reports of
government media liason lies triggered the investigative journalism that
led to the story widely known in Canada as “the Somalia Scanadal.” In
the coverage of the Somalis Scandal the main subject of journalistic
investigation quickly became government cover-up rather than the details
of what had actually happened among the low-level troops. Why had there
been no serious journalistic attempt to trace responsibility for RCMP
lies about the hostage taking incident, for instance, up the chain of
command from the police to the political branch of government? If police
had lied about that, how could any other of their stories be believed?
Were the lies to advance a political agenda on the part of the elected
branch of government?

A report in The Vancouver Sun on September 5th, 1995 suggests that in
intervening with CBC Radio, Sargeant Montague was repeating a notion
that had its origins with the Attorney General of the province. Mr.
Dosanjh was quoted as saying “There is is always the possibility of the
army, and there are other resources that can be marshalled. I think
it’s really important to focus on one issue, and that is security and
the safety of the public, the RCMP and the campers, particularly those
that may be there unwillingly.” The news report concluded, “Dosanjh
steadfastly refuses to admit the standoff has any political elements.
He reiterated this position Monday that the situation is a criminal
matter and he has confidence in the RCMP’s methods.” (Sherry Yeager,
“ A-G Fears Campers Held Against Will, The Vancouver Sun, 5 September,
1995)

Mr. Dosanjh’s public reference to the use of the federal Army should be
noted. So too is it worthy of notice that evidence revealed two years
later at the trial that there were internal plans within government to
bring in as many as 4,000 troops. As RCMP Deputy Commissioner Dennis
Farrel wrote on September 13, “Four thousand plus would be needed....
100-to-one would be needed to neutralize” the camp’s occupants. (Holly
Horwood, “Police Wanted 4,000 Troops at Gustafsen, The Vancouver
Province, 8 January, 1997, p. A4)

8. The Gustafsen Affair as a Manifestation of a more General
Politicization of Law Enforcement in British Columbia

While it would be wrong to belabour the issue, it does seem to me
relevant to note the reality that there is a constituency of opinion in
Canada that believes the Gustafsen affair is not an isolated phenonemon,
nor is it a case that must be exclusively or even primarily studied
through the interpretative lens of Indian Affairs. There is mounting
worry in some circles of a growing propensity of the RCMP to be
harnessed more to political agendas than to law-enforcement agendas.
This propensity, especially when attached to the potent axis of power
that can arise when the mainstream media and the police join forces to
achieve a shared agenda, is thought by some to represent a real menace
to the basic elements of a free and democratic society.

One point of reference in this broader contextual analysis is the APEC
affair, whose perceived connection to the Gustafsen affair has already
been mentioned. Another point of reference is the circumstances leading
to the resignation of a former NDP Premier of BC, namely Glen Clark. His
job as premier is now being filled by former Attorney-General Ujjal
Dosanjh. When he was premier, Glen Clark was searched in his private
residence by the RCMP. That sting operation was filmed by BCTV and
repeatedly televised. As it turned out, it was largely the same
personnel in the RCMP and in the province’s most influential TV station
who were front and centre in both the Gustafsen affair and the events
leading to the end of Glen Clark’s premiership.

Here is how my colleague, Robin Mathews, a retired professor of English
at Simon Fraser University University in British Columbia, put the
various elements of this series of episodes together. He wrote in a
letter, dated August 21, 2000, addressed to me as well as to Professor
Ron Dart and Archbishop Lazar,
The Gustafsen Lake incident and the smearing of [Bruce] Clark are only
part of the process.... The APEC incident-- involving white university
students-- had to be handled with great care, but precisely the same
things went on in the process of destroying the credibility of evidence
of lawlessness among the security forces. Presently the “criminal
investigation” into the activities of Glen Clark, former premier, are
becoming a joke. But the reason for them are connected to other
events.... I have begun pushing at the Glen Clark matter because of the
importance of the “rule of law” substance. I’ve written to the premier,
the A-G, the Vancouver police, the RCMP, and the leader of the
Opposition in B.C. My intention, if nothing else happens, is to get
them on record, for there will be-- down the road-- many, many questions
asked of them. I believe there is no basis whatever for suspecting
Clark of “criminal involvement” in anything.

Another perspective on these matters comes from Terry Milewski, the CBC
national TV reporter who was largely responsible for making the story of
the APEC affair one that focused on the appearance of the manipulation
of the RCMP by the Office of Prime Minister Jean Chretien in order to
serve his own political agenda in the APEC summit. Reflecting on the
process which resulted in the Prime Minister’s Office putting pressure
on the Canadian Broadcasting Corporation to take this national affairs
correspondent off the story, Milewski gives an account much resembling
the saga of “disinformation and smear” which characterized the Gustafsen
affair. He explained how the lawyers for the RCMP and the editors of
The Vancouver Sun and The Vancouver Province worked together to make his
private E-Mail a major national news story. Both papers share a common
proprietor. This news company, Milewski observed, employs the same
legal firm as does the RCMP. He also called attention to what he viewed
as the outright political collaboration of the Prime Ministers’ Office
and the federal police, writing, “the RCMP and the PMO engineered and
exploited the publication of my e-mail mesasages to attack me
personally.” (Terry Milewski, “Forces of Journalism,” in W. Wesley Pue,
ed., Pepper in Our Eyes: The APEC Affair, (Vancouver: UBC Press, 2000),
pp. 150-156)

While some of this information may appear distant from the circumstances
of the extradition application under consideration here, the point is to
expose that so-called “renegade Indians” have in the eyes of some not
been the only victims of a law enforcement regime enticed from its high
trusts and responsibilities by the lure of politics. Once in place, the
same tactics of “disinformation and smear” can be directed at
high-profile reporters or even at the premier of a province. That the
man who received a mandate from the electorate is no longer in power,
and that the former premier was the target of many of the same actors
and patterns that worked to turn public opinion against the Gustafsen
protesters, I believe stands a good chance of representing something
more than mere coincidence.

9. The Currents of Ideas and History That Ran Through the Actions and
Motivations of Some of the Individuals Who Converged to Make the
Gustafsen Lake Protest

While the Gustafsen Lake protest group was depicted at times as a
formidable group of hardened terrorists, or at other times as a rag tag
handfull of aimless trouble makers, I think it important to attempt a
brief profile of at least some of the individuals involved in the
action. The purpose is to help expose the lack of substance to the
RCMP’s characterization of the protesters as completely marginal figures
with no role and no credibility among larger communities of Aboriginal
and non-Aboriginal activists, whose work is accepted as part of
society’s quest for reform, amelioration and renewal. I totally reject
this RCMP view, one apparently now accepted also by the Foreign Affairs
branch of the Canadian government by virtue of its having presented the
police’s interpretation as its own in this extradition request.

In my estimation the stand made by the Gustafsen protesters was
integrally connected to some of the most important movements for social
justice in our times, both continentally and globally. Not to recognize
that broader significance of the episode is to do an injustice not only
to the specifics of what the Gustafsen stand represented locally, but to
demean the broader, international flow of public-spirited activism which
clearly created the wider and deeper political currents within which
this confrontation must be situated. In order to develop that
understanding it is necessary to go into some of the details of the
personal histories and webs of alliances of those who have, by a variety
of means, made personal sacrifices to transform the Gustafsen standoff
into a forum for the airing of some of society’s most difficult, yet
pressing issues.

The information I can give here is, I believe, highly relevant to this
case even if it is necessarily limited in some ways. I did not ever see
what transpired at Gustafsen Lake with my own eyes and I have no
information whatsoever about some of those who were in the camp.
Nevertheless, what I have been able to learn about some of the
personalities, achievements and motivations of those involved, has
increased my conviction that very vital minds and forces converged in
the standoff at Gustafsen Lake in ways that deserve to be far more
widely and deeply understood. Moreover the episode exposes much about
the capacity of the state to unleash very high levels of coercive force
when it comes to issues as deep as the locus of title and jurisdiction
to the lands and waters of North America. Such displays of force are
almost invariably mounted to make a political point about where power
lies and whose interest will receive most protection. When has there
ever been a mobilization of police and military force in North America
to protect the rights and titles of Indigenous peoples, rights which are
recognized and affirmed in section 35 of the Canadian constitution?

I have never met James Pitawanakwat personally. I have talked to him
twice on the telephone concerning the situation he is now faced with. I
am, however, very well acquainted with many members of the Pitawanakwat
family, who are all related as far as I know. I worked for nine years
as a Native Studies Professor at Laurentian University in Sudbury
Ontario, close to Wikwemikong Unceded Reserve where the Pitawanakwats
are from. One of James’ cousins, Joyce, taught the Odawa language in my
department. Another erudite woman in the Pitawanakwat clan, a civil
servant working in Saskatchewan in Canada’s federal bureaucracy, won a
famous case anti discrimination case against her employer. Her victory
was based on at least a decade of hard slogging through the courts. I
recall her win was embraced as a significant victory for the larger
women’s movement in Canada.

Wikwemikong is a large reserve on the world’s largest fresh water island
situated at the very centre of the Great Lakes. The community is
primarily Roman Catholic. Members of the famous Jesuit Order in the
1850s made Wikwemikong the headquarters of their missions throughout
much of northern Canada. The establishment of their mission on
Manitoulin Island came after the long exile the Jesuits had experienced
from the Crown domain in North America after they were expelled by the
British government following the Conquest of the French army in North
America.

The Odawa founders of Wikwemikong had largely fought against the
American army in alliance with the Crown in the War of 1812. They
accepted the offer of asylum in British North America rather than allow
themselves to be pushed from the Michigan area in fulfillment of the
USA’s plan to remove all Indian people east of the Mississippi to lands
west of the Mississippi. That plan was originally developed by President
Thomas Jefferson shortly following the Louisians Purchse in 1803, a
“ purchase” from Napoleon that had absolutely no Indian input even though
it was their lands being sold. It was not until the presidency of
Andrew Jackson, however, that the Indian removal plan was actually
implemented in complete violation of the USA’s then-existing treaties
with the First Nations and in violation of Chief Justice John Marshall’s
ruling on the case of Worcester versus Georgia in 1832.

The Roman Catholic Odawa together with their largely French-speaking
Jesuit priests, resisted the all efforts made by the provincial
government of the united Canadas in 1862 to persuade them to sign a
ceding treaty to give up Aboriginal title to Manitoulin Island. The
outcome of this stance, is that the Wikwemikong First Nation proudly
describe their community to this day as an “Unceded Reserve.” (Hall,
“ Native Limited Identities and Newcomer Metropolitanism in Upper Canada,
1814-1867,” in David Keane and Colin Read, eds, Old Ontario: Essays in
Honour of J.M.S. Careless, (Toronto: Dundurn, 1990, pp. 148-173)

I think it perfectly reasonable to suspect that this heritage of
resistance against entering into treaties aimed at extinguishing
Aboriginal title, a genre of negotiation that is arguably presently
underway in British Columbia, would be offensive to Mr. Pitawanakwat.
Neither he nor his home community is alone in that position. In 1999,
the UN Human Rights Committee specifically criticized Canada for
retaining the doctrine of the extinguishment of Aboriginal title as the
basis for its ongoing treaty negotiations with First Nations peoples. I
would go so far, therefore, as to venture a guess that Mr.
Pitawanawkwat’s own socialization from childhood in an “Unceded
Reserve,” the outcome of a history that in a way is being re-enacted in
all its major components in British Columbia, might go far to explain
his level of determination to make a stand as well as his subsequent
refusal to accept that he had done anything wrong in defending the
sundance site along with his ideological convictions proudly.

From my experience, when many of my students were from “Wiki” as we
called it, most of the reserve’s inhabitants over about 30 then spoke
the Odawa language. The Pitawanakwats are a prominent family at Wiki,
one which in my experience has more than the normal share of scholars
and professional people. James told me over the phone that one of his
motivations in making his stand was to act on the dying words of his
father. James told me that his dad told him to fight for the protection
of Indian people. That account rang true for me.

I have in my possession a xerox copy of a 15 page hand-written document
authored by James Pitawanakwat. My graduate student, Ben Mahony, who is
writting his Masters thesis on the Gustafsen standoff, gave me this
copy. Ben tells me he obtained his copy during the course of his
covering the Gustafsen trial for a small alternative newspaper in
Vancouver known as Terminal City. The document, I am told, is the
prepared text which Mr. Pitawanakwat presented as his closing arguments
in the criminal proceedings that led to the charges which are now the
subject of Canada’s extradition request. The following is an excerpt,
together with the closing paragraph of this hand-written text”:
The spirits of our people are written on the land, Our Land. Their
blood stained the sand fighting oppression. We cannot tell a story of
somewhere else. We are this place. Our struggle is not about power or
greed. It is about taking responsibility for the land. We see what is
being done. A stop has to be done. Violating our sacred Mother and the
children must be done. We have suffered because of the policies geared
towards assimilating us and making us conform to the expectations of the
growing dominant society that has been built around us. We have never
surrendered our right to be ourselves. We have never abandoned our
right to live on our own land. Our responsibility for Mother Earth
continues. We have been reduced spiritually, culturally, politically.
This has been unjust-- we have done nothing wrong, except to be who we
are, drawing upon our ancient history. Our oppression by Canada has
taken over our lives and we must now find ways to resist... Sovereignty
is the issue, Canada’s the problem. Honour the Royal Proclamation of
1763. Ceremonies like the sundance need to be protected from cultural
genocide. This is the basis of my resistance. We are not militants or
terrorists. We are warriors to our people, our families, our
generations yet to come. If I was asked “if it was worth it,” I would
answer, “I know my ancestors felt, YES, it was worth it.” I thank the
Great Spirit and all my relations. We all must relate to Mother Earth
to heal what’s being done.

Who could deny the basic legitimacy of all these positions, especially
given the background of history that Mr. Pitawanakwat identified with
the blood in the sand of his peoples’ five-century resistance to
oppression?

As the years have passed since 1995, we have had time to reflect on the
reality that Mr. Pitawanakwat withstood what must be the most extensive
and elaborate display of coercive state force in a domestic dispute in
Canada at any time during the twentieth century. Even when the Army was
domestically mobilized in 1970 and 1990, the former attached to a
declaration of martial law and the Oka crisis accompanied at least by a
parliamentary debate on the invocation of provisions of the National
Defence Act, there was a level of restraint on the government side that
was apparently absent in the Gustafsen standoff. I do not want to go
into all the details of the debate over how many rounds were fired on
the government side, but it seems to me I have heard numbers in the
20,000 to 75,000 range. I have before me a news report on the trial
stating that a police source agreed that 10,000 to 20,000 government
rounds were fired in one episode alone, on September 11th. (Holly
Horwood, “Police Wanted 4,000 Troops at Gustafsen, The Vancouver
Province, 8 January, 1997, p. A4) Mr. Pitawanakwat I believe was one of
two targets of that amazing barrage of government firepower.

The September 11th incident was sparked when a red truck, in which Mr.
Pitawanakwat was the passenger, was blown up as it crossed over an
explosive “device” planted by Crown officers on a road near the Native
protest camp. The explosion was filmed by the RCMP and the tape of that
incident is included in Above The Law, Part 2. As Professor Stemming
asked in 1996, how many other explosive “devices” were deployed in the
Operation Wallaby or in the RCMP’s part in the standoff? This expert in
the criminiology field in 1996 premised his questions on the role of
Canada in mobilizing support for what would become the anti-land mines
treaty. Presumably Professor Stemming had reason to do so. Is Mr.
Pitawanakwat a survivor of a Canadian government deployment of land
mines in what amounted to an undeclared Indian war? What is the legal
or semantic distinction between a “military land mine” and an “RCMP
disabling device?” After five years I think the citizens of Canada are
entitled to a clear answer to that question from the responsible
political figures in the Canadian government?

The fact that Mr. Pitawankwat is still alive today strikes me as
something of a miracle given that he has probably been the target of
more government fire power than has ever been depoloyed in any other
domestic incident in Canada during the entire twentieth century. It
seems to me that he personally is entitled to some explanations from the
appropriate officialdom of why he personally has been singled out for
such extraordinary treatment. Now he must deal with the fact that he
has been tracked down in Oregon with the intention of carrying through
the full ritual of his criminalization as a result of his participation
in the Gustafsen Lake stand. I think the evidence is enormous to
indicate his treatment by law-enforcement agencies from 1995 until now
has been of a decidedly political character.

While I lived and worked in Sudbury, I became increasingly aware of the
local importance of the legal career of Bruce Clark. Dr. Clark was
initially the lawyer of choice for the Gustafsen group, although a great
deal of pressure was brought to bear on every individual facing charges
to drop Clark as their lawyer and to leave the realm of constitutional
law in order to frame the trial as one involving only the criminal law.
As Kenneth A. Price said in the already-cited publication of the Trial
Lawyers Association of British Columbia, “it is clear that the police
ultimately did everything possible to discredit Mr. Clark and to prevent
him from expressing the position of the protesters.” The “disinformation
and smear” tactics employed by the police were targeted especially
directly at Dr. Bruce Clark. In Above The Law, Part 2, Constable Dennis
Ryan makes reference to the wish of his superiors “to kill this Clark
and smear the prick and everyone with him.” The political character the
actions of law enforcement officials at Gustafsen Lake is perhaps no
where so clearly illustrated as in the treatment of Bruce Clark.

I have never met Bruce Clark face-to-face but I consider him a colleague
and we have conferred together many times by telephone, E-Mail and
letters. I have also frequently spoken on the phone with his wife
Margaret, especially at those times when Bruce was being most severely
harrassed and persecuted in his attempt to represent his clients. I
already discussed my role in the publication of Native Liberty, Crown
Sovereignty. His second work with McGill-Queen’s, Justice in Paradise,
appeared last year. My review of that work appeared in The Globe and
Mail about two weeks ago. (Hall, Canada vs Natives, Round 500, The Globe
and Mail, 19 August, 2000, p. D4)

Bruce’s legal positions were much discussed in the local, northern
Ontario media in the 1970s and early 1980s. This discussion arose
because of his very close collaboration with Chief Gary Potts of the
Bear Island band and of the Teme-Augama Anishinabai. Bruce had
developed a very successful practice as a general practitoner of the law
in Haileybury Ontario. Once he teamed up with Chief Potts, however, he
left his practice to devote full-time attention to what became known as
the Bear Island case. That case involved the assertion of the Temagami
Indians, whose main centre is Bear Island, that they had never entered
into a ceding treaty with the Crown and that therefore their Aboriginal
title was still uncompromised. In the mid-1970s Bruce got a freeze
placed on all land tranfers in Temagami, which was something of a legal
coup at the time.

The research that Clark started for the Bear Island case he latter
applied to the land situation in British Columbia, where First Nations
have also not formalized treaty agreements with the Crown. The Temagami
land dispute involved the contention over title as well as a closely
related contest over what would happen to one of the last major stands
of old-growth forst in Ontario. As I became increasingly engaged in the
Temagami controversy, which represented a perfect laboratory of law and
politics for a novice professor of Native Studies, Bruce’s role as one
of the principle intellects in the dispute became more and more clear to
me. [Hall, “Where Justice Lies: Aboriginal Rights and Wrongs in
Temagami,” in Matt Bray and Ashley Thompson, eds., Temagami: A Debate on
Wilderness, (Toronto: Dundurn, 1990, pp. 223-253); Bruce Hodgins and
Jamie Benidickson, The Temagami Experience: Recreation, Resources, and
Aboriginal Rights in the Northern Ontario Wilderness, (Toronto:
University of Toronto Press, 1989)]

In the Temagami controversy, Bob Rae was arrested in a blockade to stop
a road into the old-growth forest. A short time later that same Bob Rae
was elected as the premier of Ontario, a small indication I think of the
mainstream character of the genesis of those social forces that
converged at the Gustafsen Lake standoff. (John Lorinc, “If God is on
Vacation: Canadian Courts Have Forced Temagami Natives to Fight, Not
Just for Their Land, But for Their Identity,” This Magazine, Vol 23,
November., 1989, pp. 23-27; Philip Raphals, “Nations in Waiting: A
Crusading Lawyer Asserts that Native Sovereignty was Granted in 1763 and
Has Been Blocked by the Legal System Ever Since, Canadian Forum, Vol.
69, May, 1991, pp. 10-14)

One of the people that inducted me into the complexities of the Temagami
land dispute was Jean Brown, who also goes sometimes by the name of Jean
Trickey. She was an African-American student of Native Studies who had
formerly been one of the famous Little Rock Nine in the civil-rights
controversy over the racial integration of schools in the United
States. I mention this only to underline the nature of the intellectual
milieu in which the ideological basis of the Gustafsen Lake stand grew
to maturity.

As I have come to understand Bruce’s legal arguments over the years, I
have come to see them as ones which confirm and support First Nations
peoples (and, by implication, all people) in the view that they already
have rights and that these rights have been, and are being frequently
denied. That basic position tends to lead to very different
destinations than ones which start with premise that rights are
something which the non-Aboriginal governments can give or withhold.
This second position tends to empower those Native politicians and their
legal staffs who appeal to their constituents for mandates in order to
send them to government to seek rights and resources, which they will
then bring back for the people. Bruce’s arguments tend to empower a
constituency who is distrustful of government. It emphasizes more the
exercising of rights than the getting of rights.

Dr. Clark is often accused of “tribe splitting,” that is of being
instrumental in dividing Native people between those commited to working
within existing systems of federal legislation and federal transfer
payments and those who condemn this system as antagonistic to the
renewal of Aboriginal laws and traditions. To my way of thinking this
division is so fundamental as to be way beyond anything Bruce could
create, although in some instances the force of his personality and his
analysis might render substantial what had only been latent or unnoticed
before. In addressing this issue in 1999 in a letter sent to The Ottawa
Citizen, whose reporter Paul McKay had produced all the major tenets of
the RCMP’s “disinformation and smear” campaign in his account of Bruce’s
having been disbarred by the Law Society of Upper Canada, Dr. Clark
wrote the following in his own unpublished self-defence:
I did not introduce the conflict into Native Society between the Indian
Act system and the Native traditionalists. The federal government
introduced the conflict over a century ago. All that I have done is to
identify, for the traditionalists in Native society, the newcomers’ own
international and constitutional law that establishes the criminal
character of the premature application of the Indian Act to arguably
unceded Indian territory.(Bruce Clark to The Ottawa Citizen, 4 April,
1999 in Response to Paul MaKay, “Rogue Lawyer Runs Out of Aguments,” The
Ottawa Citizen, 4 April, 1999. p. A3)

One of the few mainstream reporters who took the trouble to try to
understand Bruce Clark’s argument in the course of the Gustafsen
standoff was William Johnson, National Affairs correspondent for The
Montreal Gazette. Perhaps because of the his own leading role in that
strange genre of Canadian activism, namely the defence of “English
rights” in the province of Quebec, Johnson was hesistant to join in the
trial by media of the Gustafsen group. After the RCMP presented its
account of the very extravagant Indian “ambush” that was supposed to
have happened on August 27th, Johnson wrote,
Something, perhaps my grey hair, tells me that the story of an ‘ambush’
in a ‘hail of bullets’ fired by semi-automatic weapons doesn’t stand
up. When an ambush involves crossfire from two sides on unsuspecting
targets-- one would expect someone would get hurt. If there is no
wounded Mountie to photograph and show pictures of, if there is no
bullet-torn clothing to hold up at a news conference, I begin to sense
there is more or less to the ‘ambush’ story than what reporters so
confidently reported. (William Johnson, Column, Edmonton Journal, 29
August,1995)

Several days earlier Johnson had devoted four hours to an interview with
Bruce Clark in Ottawa. He said he went into the meeting expecting “to
encounter a nut, a fanatic, someone out of touch.” In his column
describing the meeting, Johnson reported that he had been forced to
revise his opinion. He wrote,
Clark is a balldheaded man of 51, with green eyes and a soft manner of
speaking. His views are radical, startling. But he struck me as a man
of intelligence who has researched his subject thoroughly, has come to
the startling conclusion that Canada’s legal and judicial system with
respect to Indians is unconstitutional, and he is willing to pay any
price in his personal life to right this profound historic wrong....
What is clear is that he has worked through the historical record
thoroughly, is absolutely convinced of the cogency of his case, and,
along with his wife, is paying a heavy economic and social price,
including the risk of disbarment, to see that justice triumphs. William
Johnson, “Too Soon for Gunfire in B.C. Land Dispute, Montreal Gazette,
26 August, 1995)

I believe that the Affidavid of the Elders Committe of Long Lake reserve
58 in northern Ontario admirably synthesizes the essence of much of Dr.
Clark’s important legal career to date. Like the Native people of
Temagami and most of BC, the people of Long Lake reserve 58 are without
a treaty. As far as I know the Affidavit cited below was one of the
last legal documents Bruce worked on before his disbarment and the
subsequent move by he and his wife to seek refugee status in Norway. In
my estimation the statement represents the fruits of a long effort of
synthesis, to capture what many Aboriginal traditionalists frequently
say of their condition in language that is judiciable, even if no
appropriate court yet exists properly to interpret it. The views
expressed, I believe, are quite consistent with those that animated the
protesters at Gustafsen Lake. The Affidavit declares,
Our statement simply says, in legal language, what the Native elders
before us and their elders before them have always said. We Indians
were on this land first and the taking it from us by the newcomers
destroys us contrary to the great law of respect, which we believe binds
the newcomers no less than it does us and all other life forms. We have
always known that we are beat before we start in the courts of the
newcomers, precisely because those courts are the newcomers’ creations.
Not ours. And also not independent and impartial third-party courts
which are neither Native nor newcomer.... It seems natural law to us
that Canada is supposed to protect our unceded lands against the
province of Ontario. Our understanding of oral history is that that the
Kings and Queens of England promised that the Crown would always protect
Indians from injustice.... We also know that Canada and her courts and
Ontario and her courts have broken faith with the Indian people and the
rule of law, by helping each other to assume jurisdiction over our lands
without first purchasing them from us as required by the great law of
respect and the Royal Proclamation of 1763. The result has been and
continues to be the ecocide of our lands and the genocide of our
people. We have the impression that Canada and the lawyers and judges
in Ontario would like to get rid of our counsel Bruce Clark.(Affidavit
“ jointly sworn before me at the Hamlet of Caramat, in the District of
Thunder Bay, 15 March, 1999, signed Roger C. McCraw, Justice of the
Peace, North West Region, Province of Ontario)

When I try to put into historical context what has happened to Bruce
Clark, whose legal arguments were so integral to the genesis of the
protest at Gustafsen Lake, I am inclined to remember that the Canadian
government in 1885 chose to criminalize and ultimately to hang Louis
Riel. Riel’s criminalized offence was to have led an armed defence of
the Metis, who sought protections for their prior rights in the process
of transforming the Canadian West from a fur-trade preserve of Native
people and the Hudson’s Bay Company into a domain fit for the regime of
privatized agriculture required to justify the building of the Canadian
Pacific Railway. In my estimation Louis Riel could easily have become a
premier of Manitoba, or perhaps a Canadian cabinet minister. He was
uniquely placed to help Canada deal with its most difficult divides
separating French from English, East from West, Native from newcomer.

Instead of turning Louis Riel’s convictions, heritage and expertise to
advantage, Canada ended up executing him, an act that still reverberates
politically. This personification of the successful marriage of French,
Roman Catholic and Aboriginal cultures that had been crucial to the
success of the Canadian fur trade was to be ritually extinguished in
order to prepare the Canadian West to become an Anglo, Protestant, White
extension of Ontario. As with Clark, the state of Riel’s mental health
was a subject of some debate. Unlike Riel, however, the lucid quality
of Bruce Clark’s perceptions have never been seriously challenged by
anyone who has taken the trouble to evaluate the tight logic of his
written prose and his oral presentations.

A powerful case can be made, I believe, that the mobilization of such
massive police and military force in the Gustafsen Lake affair
represents the logical successor to the so-called “Riel rebellions” in
terms of the zeal of government officials to commit so much logistical
and political capital towards quelling a Native resistance movement in
Western Canada. Moreover, I believe the subsequent treatment of the
Cree leaders, Big Bear and Poundmaker, as political prisoners bears a
remarkable resemblance to the aftermath of the Gustafsen standoff. (John
L. Tobias, “Canada’s Subjugation of the Plains Cree, 1879-1885,” The
Canadian Historical Review, Vol. 64, no. 4, 1983, pp.519-548)

When I look back over the course of Bruce Clark’s career, I see a man
that elites in Canada have learned to revile, much as Louis Riel grew to
be hated especially in Protestant, Anglo Ontario. This outcome seems so
at variance with how Dr. Clark so smoothly began his successful early
law practice. He was able to afford a large and comfortable home as
well as a bush plane to serve his northern Ontario clientele.

Being one of the pioneers of the modern era of Aboriginal-rights
litigation in Canada, Clark was in a position to have made a fortune in
his chosen profession. Instead of using his expertise and talent for
personal advantage, he chose to wade into the deep waters of the UN’s
Genocide Convention of 1948 (which the US stubbornly refused to ratify
until the end of the Cold War) and to clarify the jurisdictional
shortcomings of the court system. This system, Dr. Clark has
convincingly argued, is ill-suited in both the United States and Canada
to addressing credibly the assertions of First Nations sovereignty or of
interpreting or defining the existence and the character of Aboriginal
title, especially in constitutional and international law. That
political and legal contention, having to do with the jurisdictional
capacities of the domestic courts, was absolutely central to the stand
of the protesters at Gustafsen Lake, who withstood such a huge onslaught
of state violence and psychological warfare to demonstrate the depth of
their convictions.

When I imagine how a Bruce Clark might best be employed, I picture him
perhaps at the Hague working for an International Tribunal. I imagine
him working through the problems of who did or did not commit ethnic
cleansing in the Balkans and who is or is not responsible for having
commited crimes against humanity. Before such a use could be made of
Bruce Clark, however, he would insist that the logic of equal treatment
before the law would necessitate some fundamental grappling with these
same issues in the context of the history of our hemisphere since 1492.

In my estimation what happened at Gustafsen Lake illustrates
compellingly that the Indian wars in North America never ended. The
difficulties in the way of getting at the full truth of what actually
transpired at Gustafsen Lake demonstrates further the need for edified
international agencies to undertake the investigation of certain kinds
of alleged human-rights violations, even in North America. Without the
benefit of the perspectives of outside, third-party observers and
arbitrators, there are few checks against the tendency of domestic
officialdom to dress up political turmoil in the clothes of criminals
and law enforcers. The case of James Pitawanakwat, I believe, admirably
captures some of the main outlines of many of these problems and issues,
ones Dr. Clark has endeavoured against powerful odds to illuminate and
elaborate.

There is yet another key player named Clark who identified himself so
closely with the Gustafsen protesters that he made himself for all
intents and purposes on of them. That Clark is Ramsay Clark, former
Attorney General of the United States during the regime of Lyndon
Johnson. Ramsay Clark is pictured in Above The Law, Part 2 declaring
that it was a “despicable act” act for Judge Nicolas Friesen of British
Columbia to have sent Bruce Clark, the Gustafsen protesters’ lawyer of
choice for a mental examination.

It is my impression, although I would have trouble documenting it, that
Ramsay Clark intervened directly with Attorney-General Ujjal Dosanjh,
imploring him not to let looses another WACO-style horror. Ramsay Clark
has, I understand, been deeply involved in sorting out the legal mess of
Waco, and I imagine his invocation of the Waco comparison at the height
of the Gustafsen standoff might have raised a few heads in the British
Columbia government. Ramsay Clark may well be the person most
responsible for the fact that no one was killed in the Gustafsen affair.

I shall quote at some length Ramsay Clark’s letter concerning the
treatment of Bruce Clark, a saga that is very suggestive of just how
politically overcharged the court proceedings were during the immediate
aftermath of the standoff. In a letter from his New York offices dated
26 September, 1995-- a letter copied to the Chief Justice of British
Columbia Allan McEachern, Attorney-General Ujjal Dosanjh, and the Law
Society of British Columbia, Ramsay Clark wrote to Judge Nicholas
Friesen as follows,
The arrested Indians were being humiliated by the police to whom they
surrendered, deprived of their clothing and brought into the court in
paper garments. Your partisan support for the police created new
tensions and the perception of injustice.

By denying the Indians representation, you subjected them to lengthy
interrogation under extremely coercive conditions by the police. Any
lawyer worthy of the calling would plead zealously for the right of
individuals at such a critical stage of criminal proceedings to be
represented by counsel of choice. When Bruce Clark did so, you brushed
aside the legal issues he sought to raise and he was physically subdued
by officers of your courtroom.... Now Clark is threatened with assault
charges, though the real charge would seem to be “resisting assault.”
This was a common law enforcement practice during the civil rights
struggles in the 1950s and 1960s in the U.S.

Bruce Clark was returned to your court after arrested Indians had
directly informed you they wanted him as their lawyer. On your own
initiative you ordered Mr. Clark to undergo a psychiatric examination to
determine if he is mentally fit to be charged and stand trial for
contempt of court, thus punishing him severely without any
adjudication. The meaning of this could hardly be lost on the Indians,
or counsel who might agree to represent them. It is so inherently
improbable that you could have doubted Mr. Clark’s mental competence
that you have created the appearance of an outrageous abuse of judicial
power to deprive persons accused of crime of their counsel and to
deliberately humiliate that counsel and his clients....

You were unwilling to address, analyze and explain the law, resorting
to pejorative exclamation instead of reason and judicious comment. Not
content with confining Bruce Clark for a mental competence examination,
you taunted him in a public courtroom where you had him brought in in
ankle and wrist chains after being deliberately deprived of sleep over
the weekend.. Do you expect Indian peoples to believe they can receive
justice in your court? And where will Indians obtain independent,
courageous and effective counsel to represent them in your court?

It seems to me such engaged involvement by a former Attorney General of
the United States adds substantially to the case that there was nothing
frivilous, ephemeral or marginal about the political and ideological
substance of the Gustafsen protest. I believe that decades ago Ramsay
Clark parted company with many of his colleagues in government over the
issue of the role of the US military in the Vietnam Confict. I believe
what happened in Vietnam was never dignified by the USA with an official
Declaration of War, much like the commitment of the Canadian military to
quell an Indian uprising at Gustafsen Lake was never dignified through
an invocation of those legislative and constitutional provisions meant
to attend such a significant act.

In any case, I believe Ramsay Clark played an important role in the
internal mobilization of public opinion within the USA against the
deployment of such massive American military force in southeast Asia in
an dispute that began initially as a movement of Indigenous peoples
aimed at throwing off the weight of French imperial power. That peace
movement represented one of the most important social movements ever to
be mobilized in the American republic. Ramsay Clark’s intervention on
the side of the Gustafsen Lake protesters I believe can be seen as proof
of an important projectory of continuity with the anti-war activists who
struggled to get the US military out of Vietnam.

Sometime during the course of the standoff and its immediate aftermath I
became vaguely aware that Ramsay Clark was involved. What, I asked
myself, was drawing a former Attorney General of the USA into the mix of
personalities then defining this story. In subsequent years I came to
understand the connection. Ramsay Clark had acted in the early 1970s as
the lawyer for the Mohawk activist, Splitting The Sky. As I have come
to understand the conflict, Ujjal Dosanjh and Splitting The Sky
personified the two poles establishing the primary axis of antagonism
that created the basic dynamics of the Gustafsen Lake standoff.

As it has been explained to me by Splitting The Sky, who I have invited
on two occasions to lecture in my Native American Studies courses, he
was appointed sundance chief of the Gustafsen Lake ceremonies in 1995.
I believe he was centrally involved during that crucial stage when the
religious ritual wound down and then the standoff with police began.
Some kind of agreement was then arrived at, involving especially William
Ignace. The outcome was the determination that Splitting The Sky would
leave the camp in order to lead the effort to mobilize the involvement
of potential allies both continentally and internationally.

That in fact happened, with co-ordinating assistance provided by the
Canadian Alliance in Solidarity with the Native Peoples. Its head
office was then in Kanewake Quebec. The intervention of Ramsay Clark,
with all his many international contacts, began with Splitting The Sky’s
request that his lawyer get involved. Ramsay Clark began his work for
Splitting the Sky, the English translation for Dacejewea (thus “Doc”),
when the latter was charged with killing a police officer during the
height of the Attica prison riots in 1971 in upper New York state. In
the course of that crisis, 43 inmates were killed. The Attica prison
riot has many times been dramatized by Hollywood. It represented a huge
centre of controversy.

The murder charges against “Doc,” that is Splitting The Sky, made his
case a flash point of controversy. At first Bill Kunstler represented
him but then Ramsay Clark took over. The publicity surrounding the
murder charge put on this young Mohawk man were an integral part of the
genesis of AIM largely as a movement that first coalesced among Native
inmates and former Native inmates of the American and Canadian penal
systems. I recently discussed “Doc’s” case with Rubin Hurricane
Carter, the subject of a major motion picture, when he was visiting the
University of Lethbridge. “The Hurricane” confirmed for me the
important symbolism of Doc’s case in the early 1970’s when the very word
“ Attica” was made to seem like a slogan of resistance, especially in the
American underclass.

Doc was taken from his Mohawk mother when he was a child. He grew up in
a cycle of orphanages and training schools, then graduated to jail and
penitentiary. This experience is sadly not uncommon among First Nations
people in North America, who are grossly over-represented among the
populations processed through the so-called criminal justice-system.
Unlike many who never find their way out of the revolving doors of jail
and the street, jail and the street, Doc became involved in the circle
of Longhouse activists who gathered around the Mohawk elder Louis Hall.

Like many of the Mohawks of Kanewake near Montreal, Louis Hall travelled
North America as a high steel worker. He was also an artist, who came
up with some of AIM’s most broadly-disseminated pictoral designs,
including the Mohawk Warrior flag design which has spread all over the
planet as a symbol of resistance by Indigenous peoples. Louis Hall
stimulated his AIM audiences with a now-legendary mimeographed
newsletter that he sent all over the continent. Doc was involved with
an action of Louis Hall’s group when they took over some Rockefeller
land in upper New York state based on the terms of a Six Nations
Treaty. This land became known as Gahnienke, meaning basically “Mohawk
land.”

An outcome of this activism, combined with controversies over Native
gambling casinos in New York state, was the emergence of the Mohawk
Warriors, who made their most characteristic stance at Oka in 1990.
(Rick Hornung, One Nation Under the Gun: Inside the Mohawk Civil War,
(Toronto :Stoddart, 1991) Largely because of the illuminations
emanating from the Oka crisis, the BC government finally inched towards
acknowledging some sort of reckoning with the idea of Aboriginal title.
Moreover the internationalization of Indigenous peoples issues was
significantly advanced, especially when the European Parliament sent
observers to investigate Canada’s Indian policies. The government of
Canada responded to this unwanted international scrutiny by creating the
Royal Commission on Aboriginal Peoples. While most of the some 400
recommendations of that inquiry have been ignored, its findings
underline the importance of the idea of finding modern, practical ways
to exercise Aboriginal title and to implement treaties.

While Splitting The Sky has eschewed the culture of gambling casinos
that has been embraced by some of the Mohawk Warriors, he has long been
integrally involved in the network of alliances of shared purpose and
perspectives which animate the American Indian Movement. He is, I
understand, on friendly terms with Leonard Peltier, who AIM members and
many others perceive as the USA’s #1 political prisoner. The two men
have both had to share the wrongfully-imposed stigma put on them as
branded “cop killers.”

While Splitting The Sky’s extensive criminal record was brandished about
during the Gustafsen episode as proof of the dangerous character of the
group, his experience of incarceration gave him long periods of solitude
when he read deeply in history and in constitutionnal analysis. When we
talk constitution, which is quite frequently, I see in his analysis many
flashes of insight that can only come from being able to combine theory
with very-hard won experience of how power and force are actually
exercised. That understanding becomes especially vital at moments when
the stakes are really high, as was the case during the Gustafsen Lake
standoff.

When Splitting The Sky has given lectures to my students, Native and
non-Native, I can see many of them respond to the way he personifies in
the life experiences which shaped him so many of the patterns in the
historic colonization of Indian Country. The experience of having been
long incarcerated parallels so closely the broader Indian experience of
being contained within alien laws on reserves, reservations, and church
run boarding schools whose operating principles were to “civilize the
savages.” In a strange sort of way I believe that the main objective was
achieved that Doc and the others set out on the Native side of the
standoff. When the Canadian government infused the Army into the
conflict, the BC land issue at that moment entered a new frontier of
internationalization.

Governments might lobby and conspire to evade the international
implications of having used the military to control the content and
format of domestic negotiations with First Nations. But the desired
impression that this process of “negotiation” is voluntary rather than
coercively-imposed, is a carefully-engineered fraud. Even the deployment
of “RCMP disabling devices” devices rather than “military land mines”
qualifies in my books as a sufficiently militaristic intervention to
call into question the outcome of the bargaining on Aboriginal title
that took place with this kind of aggression on the Crown’s side. The
deployment of this kind of force is thankfully subject to international
regulation, whose standards both Canada and the USA should have to meet
even when it comes to the conduct of their aggressively-domesticated
regimes of what both governments refer to as “Indian Affairs”

Splitting The Sky lives in Chase BC with his wife, Sandra Bruder, and
their four children. Sandra and Doc are working on a book which I
understand will have in its title, “From Attica to Gustafsen Lake.”
Sandra Bruder is Cree from the Thompson Manitoba area. Doc’s love and
marriage to her are the reason that he moved to Canada. Sandra was at
different times in the summer of 1995 in the protest camp, along with
her children. One of them, Angela, is about 17 now and she can remember
very clearly the experience of being fired upon. From the several times
I have talked with Sandra, it is clear she is a deeply-commited activist
with deep experience in the particular kind of politics that I associate
with the American Indian Movement. Much like Margaret Clark, who has
stood by Bruce through some quite dark times, Sandra Bruder is clearly a
person of influence and high regard in Indian Country.

Sandra and Splitting The Sky live about three miles from the Adams Lake
reserve home of William Jones Ignace and his wife Flo Sampson. During
the early days of the standoff, when the media still had access to the
protest camp,“Jonesy” Ignace, along with Percy Rosette, were probably
the most photographed of the Gustafsen group. As Shuswap elders their
centrol role in events precluded the argument that there was no Shuswap
involvement in the action. Mr. Ignace is also known as the Wolverine,
which played well into some of the more extremist motifs of the media
coverage. Of all the Gustafsen group, Mr. Ignace faced the most serious
charges, serving several years in jail. He never backed away from the
constitutional and jurisdiction arguments on which the stand was based
and he remained adamant that Bruce Clark was his lawyer of choice. Mr.
Ignace has now been released from prison. He is on probation, and tells
me his subject to some sort of “gag order” which makes it illegal for
him even to talk publically about the Gustafsen standoff.

I met Mr. Ignace and Flo on two occasions, once in their home. Mr.
Ignace, who is now in his 70’s, speaks English with a fairly pronounced
Shuswap accent. From the time we spent together I recognized in him the
quintessential essence of the old Indian political struggle in BC over
title to the land. In his mind I believe there is no doubt that BC as
presently consistituted lacks the legitimacy that only First Nations can
give through treaty negotiations in conformity with provisions of the
Royal Proclamation of 1763. This idea is not mere theory; for Mr. Ignace
the conceptualization of title and jurisdiction and sovereignty and the
sacred spirits of the land seem all to be seamlessly integrated together
as naturally as day follows night.

One of the first stories Mr. Ignace told me was how fourty RCMP officers
had surrounded his house in 1990 to arrest Robert Satiacum. Mr. Ignace’s
admiration for, and friendship with Satiacum, seemed to me clearly
marked in the way he talked about him. Satiacum, I have recently been
learning, was a tremendously important figure in US Indian history. His
major pre-occupation was in applying the provision in the American
Constitution referring to “Indians not taxed,” a code originally
designed to clarify in 1787 that Indians were not American citizens.

Satiacum’s aim was to create a new economic basis for Indian peoples in
the exploitation of their tax-empt status. While he set in motion
initiatives in the areas of trade in tobacco and alcohol as well as in
the exploitation of Indian jurisdiction in the gaming industry,
apparently the line was drawn when he set out to apply Indian tax
exemption to oil and gas distribution, especially through the port of
Tacoma Washington. My sources tell me that Satiacum was subjected to
really ruthless episodes of disinformation and smear and was made to
look like a mafia-style gangster. That image did not at all conform to
who the man really was.

The lawyer who represented Satiacum in his successful refugee hearing
also tells me he is one of the only individuals ever to seek and gain in
Canada refugee status from the United States. He worked closely with
the great Shuswap sage, George Manuel, founder of the World Council of
Indigenous peoples. Where this is leading is to my conclusion that
Jones Ignace, who is now well into his seventies, carries within him
very vital traditions of ideas and activism that have run through Indian
history for many generations. He reads widely in the law and is
something of an expert on Bruce Clark’s legal interpretations. At one
point in our conversation, he stopped in mid sentence, went downstairs
and brought up a multi-volume transcript of Bruce Clark’s testimony in
the Gustafsen Lake trial.

As I understand it, Bruce’s legal problems precluded him from acting as
Mr. Ignace’s lawyer. Mr. Ignace acted as his own lawyer and called
Bruce to the stand, Bruce apparently in his prison clothes and
handcuffed. The elder then questioned Dr. Clark about what he had told
the Gustafsen group concerning his interpretation of their right to
defend the sundance grounds. I am told Dr. Clark spoke extemporaneously
for three weeks, putting his main arguments on record, a documentary
record Mr. Ignace apparently keeps in his home for regular reference.

As a Doctor of Philosophy and as an Associate Professor of Native
American Studies, I can attest from all this that those who believed
they were standing the ground of Indian sovereignty and on the Crown’s
recognition of their Aboriginal rights in defending the sacred sundance
grounds near Gustafsen Lake during August and September of 1995, were
acting out of deep study and conviction. In my view there was nothing
frivilous or trivial about their motivation for acting in this way.
Their actions were well calculated to help bring into the light of day
important currents of thought and interpretation that have been too long
repressed, even as they also are part of many major ideological currents
that animate the course of the world history we are making every day.

I have heard nothing but good about Ms. Franklin, who withstood the
military onslaught in the camp and then, I am told, conducted herself
with great dignity and according to high principle in the court
proceedings. I also once heard a radio interview with her parents, who
were outside the camp in 1995 while she was inside. Her parents
publically lauded their daughter’s determination and the ultruism of her
stance. Another figure who, like Ramsay Clark, was not a camper but who
has emerged as a powerful witness to the political manipulations on the
government side, is retired Constable Bob Woods. In his interview
telecast on Canada’s Aboriginal Peoples’ Television Network, the retired
Native man, who I believe is of Oneida ancestry, went far beyond the
stinging indictments he presented in Above The Law, Part 2. I view his
critique of the RCMP, a force to which he belonged I believe for about
15 years, as an important commentary, especially for those whose
responsibility it is to chart the force’s uncertain future.

10. Is There a Convergence of Two or Three
Sovereignties in This Case?

In Section 8, I suggested that there were other windows through which to
view this case besides “Indian Affairs.” The fact remains, however, that
there are special legal and political considerations that have to do
with the fact this particular extradition request involves a Native
American. In the eyes of some that Native individual has been unduly
presecuted even as he is seen to have distinguished himself as a genuine
freedom fighter. I think it also relevant to point out that Mr.
Pitawanakwat is from a First Nation, namely the Odawa, whose ancestral
territories are on both sides of the Great Lakes. Beyond that, Mr.
Pitawanakwat’s people historically were coerced to leave their homes in
Michigan Teritory, which as we all know is south of the Canada-US
border. Does this history have any contemporary bearing on his legal
status in the United States?

From the era of the French and Indian War in the mid-eighteenth century
to 1818 when the 49th parallel up to the Rockies was first established
between the USA and British North America, questions about the
international status of Indian nations figured prominently in global
geopolitics. That issue, for intance, was one of the central points of
ideological and political contention in the War of 1812. One legacy of
this era when the map of North America was in flux, is the Jay’s
Treaty. The USA recognizes it but the government of Canada refuses to.
A key part of that treaty concerns the free passage of Native Americans
across the international border. That provision symbolizes that the
treaty law of our two countries does not apply to the Indigenous peoples
of the continent in the same way as it does to regular citizens.

Since the end of the War of 1812, gradually a pattern developed where
Native American peoples were integrated into the domestic legal regimes
under the authority of the Crown and of the American republic.
Nevertheless, many Indian groups did seek and find asylum in the Crown
domain, including some Odawa, Potawatomi, Souian, Oneida, Moravian,
Delaware and Ojibway peoples. Chief Joseph’s famous run for Canada was
intercepted just before he arrived under what he hoped would be the
protection of the British Queen. Sitting Bull, the victor over Custer’s
Seventh Cavalry at the Battle of Little Big Horn, also sought that
protection for himself and his followers. Ultimately, however, that
protection was denied. One group, namely the Wyandots of the Windsor
area, opted to seek new homes in the United States. Another, the
Kickapoo, headed from the Great Lakes to Mexico to escape subordination
under American law.

Big Bear, who distrusted the treaty makers as much as did the Roman
Catholic Odawa of Wikwemikong, headed to Montana to escape the enclosure
of his peoples on reserves. Montana officials disarmed his group and
marched them back to the Dominion of Canada, much as Sitting Bull and
his group was concurrently returned to the USA. There he became a star
attraction in Buffalo Bill’s Wild West Show before he was murdered by an
Indian police officer working for the US government.

So little by little the effort to domesticate Indigenous peoples within
the laws and borders of Canada and the United States has proceeded.
Legal and political questions concerning the relationship of Native
Americans to the extradition treaty between Canada and the United States
cut to the very heart of the contemporary legal status of the First
Nations. The speedy and dubious procedures surounding the extradition
of AIM activist, Leonard Peltier, from British Columbia to the USA still
rightfully marks a difficult spot of festering unease between our two
countries. Given this experience, surely the case of James
Pitawanakwat, an AIM activist who has survived an ordeal whose true
nature is still very contentious, requires careful consideration,
consultation and research before any major commitment to action is made.

I end with a question. Are there three sovereignties or only two
sovereignties which converge in the case of James Pitawanakwat? If
there are only two sovereignties involved, what happened to the
sovereignty of the Odawa, the Shuswap, or of all the North American
First Nations collectively? If it is the view of the judiciaries as
well as of the two governments which created these domestic courts, that
the sovereign existence of the First Nations is a thing of the past,
then perhaps it is time to give more careful attention to Dr. Clark’s
thesis that the UN’s Genocide Convention has application in the North
American context.

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