Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 2 - Evidence - Meeting of December 1, 2004
OTTAWA, Wednesday, December 1, 2004
The Standing Senate Committee on Aboriginal Peoples met this day at 6:15 p.m. to examine and report on the involvement of Aboriginal communities and businesses in economic development activities in Canada.
Senator Nick G. Sibbeston (Chairman) in the chair.
[English]
The Chairman: Honourable senators, this evening Professor Cornell will be our witness. Welcome, Professor Cornell to Canada.
We invited Professor Cornell because of his expertise on Aboriginal businesses in the United States. He is co-director of the Harvard Project on American Indian Economic Development. He and his partner, Professor Kalt, are co-founders of the project which has been in existence since the late 1980s. Unfortunately, Professor Kalt is unable to be with us tonight. We had invited him, but he phoned from Boston saying his plane had been delayed and that he would not be able to make it. That is regrettable.
Professor Cornell is also a director of the Udall Centre for Studies in Public Policy and Professor of Sociology and of Public Administration and Policy at the University of Arizona.
I believe, professor, you know the nature and the parameters of the study we are beginning to undertake. Please proceed.
Professor Stephen Cornell, Co-Director, Harvard Project on American Indian Economic Development: Honourable senators, it is a pleasure to be here. I very much appreciate the invitation. I apologize that my colleague Professor Kalt has been weathered out of Ottawa. Coming from Arizona, it is nice for me to get a winter reality check.
I appreciate the invitation because I believe that these issues that you are beginning to address are extremely important, and I hope that what I have to say will be of use to you. I should caution you that most of what I have to say is based on the U.S. experience. I will, however, add a few remarks about some of the experience we have had in Canada. The work we have been doing has focused largely on the United States but, in the last five years, we have begun to pay increasing attention to First Nations in Canada and to Aboriginal peoples in Australia and New Zealand. We have had the opportunity to draw some preliminary comparative conclusions.
The chairman mentioned that Professor Kalt and I co-direct the Harvard Project on American Indian Economic Development. He and I developed the project when both of us were teaching at Harvard in the late 1980s. Professor Kalt is still there at the Kennedy School.
To give you a brief background of what we were concerned with, as I believe you probably know, in the U.S., as in Canada, Aboriginal peoples are among the very poorest of citizens. One of the striking developments in the United States over the last three decades, however, has been a breaking away from the pattern of persistent poverty on the part of a selection of First Nations.
Today in the U.S., the overall pattern remains one of deeply entrenched poverty among Aboriginal peoples, but across the United States there are striking bright spots of sustainable, productive economic activity on indigenous lands. While some of that, as you may have heard, has been the result of the gambling industry and its development on Indian lands, by no means all of it is. Some of the most interesting economic developments among aboriginal peoples in the United States have come about without the assistance of gaming.
In the late 1980s we set out to try to understand why some indigenous nations in the U.S. are more successful at producing sustainable productive economies than others. We had some ideas about what might be responsible for that — perhaps it was education; perhaps it was location. Those close to major urban markets do much better than those who are not. Perhaps it was natural resource endowments, the kinds of resources that lend themselves to creating large businesses that produce revenue streams. Perhaps it was access to financial capital. We wanted to know.
We undertook an extended research program, which is still going on and has become larger rather than smaller as we have proceeded, to see if we could understand what conditions were necessary for sustainable economic development on indigenous lands. We did this through extensive field work on Indian lands in the United States. We also analyzed whatever numerical data we could get from U.S. government agencies and other sources.
I will give you a quick review of the primary results of this project. It turns out that the sorts of things I have already mentioned — education, location, natural resources, access to capital and so forth — are all important; they are all useful. However, on their own they are incapable of producing sustainable development on indigenous lands unless a prior set of factors is in place. Those factors turn out to be largely political.
Three things emerged from this research as being critically important to sustainable development on indigenous lands. The first is jurisdiction. Again and again, across the successful nations that we have seen in the U.S., those nations have asserted growing jurisdictional power over the form of their governments, over their own assets, natural resources and others, over internal affairs and over development strategies. In essence, where the decision-making power of the indigenous nation itself has risen, the possibilities for development have risen as well. We believe that there are several reasons for that, but the most important one is accountability. As decision-making power moves into indigenous hands, they reap the benefits of good decisions and pay the price of bad decisions, and the consequence, over time, is that the quality of the decisions improves.
As long as the primary federal agency in the United States, the Bureau of Indian Affairs, was making decisions for indigenous nations, they could make bad decisions with impunity. The indigenous nations suffered the consequences of bad federal decisions; the agency did not. As a consequence, there was no discipline on the agency to improve its decisions over time but, as decision-making power moved into indigenous hands, accountability moved with it.
The other reason that we believe jurisdiction is important is that it moves the development agenda into indigenous hands. The tradition in the United States through most of the 20th century was for economic development to be conceptualized in Washington and delivered as ideas to indigenous nations. As decision-making power moved into indigenous hands, their ideas about development moved to the forefront of the development effort.
Jurisdiction, or what in the United States is referred to as tribal sovereignty, turns out in our view to be a necessary condition for sustainable development on Indian lands. It is not a sufficient condition. The second finding of the research was that jurisdiction has to be backed up by capable governance; in other words, decision-making power alone is not enough. Decisions have to be made intelligently. The environment has to be one that invites citizens and non-citizens of these nations to invest time, energy and ideas in the future of those nations. This is a common finding around the world. Before they invest, investors today looking to Eastern Europe or to developing nations in Africa consider the quality of governance. Is there a rule of law? Will I be treated fairly in the courts, et cetera?
People with ideas and energy do the same thing, including the citizens of those countries. We believe that is true of human societies generally, and it certainly is true of Aboriginal ones. The second finding of the research was that jurisdiction has to be combined with capable governing institutions.
The third finding, however, was that those institutions have to match indigenous conceptions of how authority should be organized and exercised, because if they are to be successful, indigenous governments must have legitimacy with the people being governed.
My country, the United States, is very good at going around the world and telling people, "You need good governing institutions. Try ours." I do not know how well that works elsewhere in the world. It does not work well in Indian country. The United States is learning that indigenous notions of how to govern themselves are the ones more likely to win the legitimacy of the people being governed.
What this means, of course, is that if you look across the successful indigenous nations in the United States, you see nations who govern themselves very differently, from the confederated Salish and Kootenai tribes of the Flathead Reservation in Montana whose tribal government looks like it came out of my high school civics textbook, to Cochiti Pueblo in New Mexico which has no Constitution, no elections, no legal or commercial code and is one of the more successful economic nations in the United States, governing itself with tools that were created before the Spanish met them.
The diversity is huge. Where we see these three elements: jurisdiction, capable governance and culturally appropriate institutions, the chances of development appear to increase dramatically. Where those are in place, other assets such as education, natural resources, access to capital and location begin to pay off. Where those things are not in place, those assets are likely to be wasted. Indeed, we think jurisdiction and capable governance will get you further in the absence of other development assets than ample development assets will get you in the absence of jurisdiction and capable government.
The examples I would give you, very briefly, are the Crow tribe of Montana, which is probably the wealthiest tribe in the United States in terms of natural resources but today has an unemployment rate of 80 per cent; and the Mississippi Choctaw who sit on burnt out plantation land on a fragmented land base in a desperately poor state and today import labour because they have created so many jobs that there are not enough Choctaw citizens to fill them. They have done it by being assertive in taking control of their own affairs and backing up that control with capable Choctaw governing institutions.
Practically, what does this mean? We believe that it means for governments like my own to invest in governance capacity building. Let us be clear what we mean by "governance capacity." I think of governance capacity as the ability of a nation to pursue its own objectives effectively. It seems to me to have three components. These will sound familiar, at least the first two will.
First, governance capacity rises as your authority rises. If you do not have decision-making power over your affairs, you lack the capacity to pursue your own objectives effectively. You must have power in your hands to get done what you need to get done.
Second, you must have an environment of good rules and good institutions. That is what capable governance is about. How is authority organized and exercised? Who can do what? Who has what rights and powers? How are disputes settled among us? An environment of strong, capable rules increases governance capacity. An environment of rules that encourages corruption or that encourages people to view the system as a tool for them to use to advance their own ends discourages or reduces governance capacity.
Third, you must have resources and skills with which to work. We have to train people. We have to provide them with the resources necessary to get done what they need to get done.
Unfortunately, in my country at least, we have tended to focus on number three. When we talk about building governance capacity, we talk about persuading Bill Gates to give Indian nations computers and sending young Indian people off to accounting school. This is not creating governance capacity; it is just creating administrative capacity. It is not about how to govern; it is about training people to administer programs, designed in Washington and presented to Indian nations.
What we need to do, instead, is to expand indigenous authority and invest in building indigenous institutions. We cannot do that by imposing institutions on indigenous nations but by assisting them in developing institutions that reflect their own ideas about governance that are also capable of getting the job done.
I would like to raise one other issue that is of concern in Canada and, I believe, in parts of the United States. If we are serious about building governance capacity, it raises one other issue. Who is the "self" in self governance? This is both a question of legitimacy and a question of efficacy. To give you an idea of what I am talking about, today in Southern California there are a number of small, indigenous nations, many too small to mount governance structures of their own. They were dramatically reduced in size by the experience of U.S. colonization. For some of those nations, the only way to effectively govern themselves is to share institutions, for example, to create a court that serves all of them in order to settle disputes. Today, the Kumeyaay people of Southern California are talking about exactly that. How do we create a court that we all believe in because it is our court, we all share the same culture and language, the judges will be our people and individual nations will be willing to defer to that court?
Where we have small and isolated First Nations, the issue of who the "self" is in self governance becomes critical, and it requires the careful juggling of legitimacy issues with efficacy issues. You have to come up with a unit in which to invest governance power that the people being governed believe is appropriate but that is also capable of doing the job. It is a difficult act to juggle those two. It cannot be done by outsiders. It must be done by indigenous people themselves who will be the best judges of what will work and what people will believe in.
Finally, this matter of who the "self" is in self-governance may also vary by function. It may be that some functions, such as dispute resolution, may operate in a higher or broader level than other governmental functions, which tend to be localized. I see no reason why any government has to live at simply one level, one scope of social life. One could imagine a matrix with governmental functions across the top and the units that exercise them down the left hand side and a construction by indigenous peoples of where is the appropriate way to accomplish what they want to get done. What do we organize at the tribal or First Nations level or the association of tribes level?
As you can see, my focus is on governance and not on the topic you presented me with of economic development or business. That is because our experience, having started a major research project on economic development, was that we ended up talking about governance. Without solving the political problem, we are convinced we cannot solve the economic problems. Our focus turned to jurisdiction and sovereignty, to capable governing institutions and to cultural legitimacy.
How applicable is this to Canada? We have done some work here. The most striking piece of it, perhaps, for the purposes of this hearing, is the work we did looking at four First Nations in the Treaty 8 region of Alberta. Two of those nations were located near major population centres and two were isolated in more northern parts of the province. DIAND asked us to take a look at these four nations to try to ascertain whether they were different in economic performance and, if so, why. We discovered that location was not the best predictor of which of these nations would succeed. The most successful one was more isolated. What did differentiate the nations was that we discovered capable governance. We discovered that where a nation had been aggressive in taking control of its affairs but also had done the hard work of building effective governing institutions, we saw economic development in a way that was absent from the other three nations.
In short, we recognize that there are substantial differences between the situations of indigenous peoples in the U.S. and of those in Canada. We think those differences are significant but, so far in the work we have done in a number of different parts of Canada, we have found no reason to believe that the findings of our work in the United States are inapplicable or irrelevant here.
The Chairman: I will open the floor to questions.
Senator St. Germain: My question relates to a pet peeve of mine and it concerns the U.S. Indian Agency versus the Department of Indian Affairs and Northern Development. We just received a report from the Auditor General on education that shows DIAND pours resources at the problem but does not produce results. We are now faced with a situation under the present system, even if we started to improve it, where it will take 28 years to get our Aboriginal children to an educational standard equivalent or comparable to the non-Aboriginal standard. Has the U.S. ever discussed the idea of disbanding its organization completely? As long as you have these structures in place how can you control the huge bureaucracy? Canada's bureaucracy and budgets are enormous. I believe the figure for education alone is $1.1 billion, yet it does not appear that the plight of our Aboriginal peoples is improving to any vast degree. The situation is improving slightly and, as you point out, governance has been given to the respective tribes, whether it is the Nisga'a or others. Since the early 1980s we have made some strides.
Senator Watt: That is, since 1975.
Senator St. Germain: Was it not the Sechelt?
Senator Watt: It was the James Bay agreement.
Senator St. Germain: Do you think it is realistic to think that we could bring forward an initiative that would rationalize this operation and bring it to the point of a sunset clause? What has your experience been with the U.S. Indian Agency?
Mr. Cornell: This has been an issue with the United States, both within the indigenous nations and within the U.S. government. The critical thing that has happened in the U.S. in recent years has been a change in the role of the Bureau of Indian Affairs. Through most of the 20th century I would have described the Bureau of Indian Affairs as the primary decision maker in what is called "Indian country," which means indigenous lands. The Bureau of Indian Affairs has been the primary decision maker and was for a long time.
Beginning in the 1970s, that role changed significantly, moving from a decision-making role to a resource role. That was not an intentional change by the United States government. Rather, it happened largely because indigenous nations began taking away the decision-making power of the bureau, which happened on occasion in rather stark forms.
I would just point out that the First Nations in the U.S. call themselves "tribes." In the 1960s, the pattern followed by an Apache tribe in Arizona was that the tribal council would make a decision and the federal agency, the Bureau of Indian Affairs, the superintendent, would sit in on the meeting. The members of council would vote, and the chairman would count the vote at, say, six-to-three, and then he would turn to the superintendent and ask if that was acceptable. The superintendent would then say, "All right. We can go along with that." Finally, a new tribal chairman in the 1960s informed the Bureau of Indian Affairs superintendent, that he no longer needed to come to their meetings. He said, "We will tell you when we need you." The superintendent was literally locked out. They forced the Bureau of Indian Affairs into a resource role. Their stance was: "When we need your help, we will ask for it, but we will set the agenda from now on." Where that has happened, we have tended to see a much better relationship between indigenous nations and the agency; and we have tended to see better decisions.
In some ways, it is not an issue of whether there should be such an agency. Most indigenous leaders in the United States would say that they depend for certain things on the Bureau of Indian Affairs. It has technical expertise and it is a convenient way of maintaining records that goes beyond a single nation. There are functions that it serves that would be difficult to replace. The real issue is: What is its role in working with indigenous nations in trying to advance their objectives?
That is where the focus should be. In other words, we need to think about what is wrong with the agency, certainly in the United States. I do not know enough about DIAND to begin to say whether that applies here.
Senator St. Germain: Had it assumed a real paternalistic role?
Mr. Cornell: Extremely. The history is very similar. It was a paternalistic decision-maker for indigenous people. It was the fundamental colonial assumption: We know what is best for you.
Senator St. Germain: Has it been a costly process to the native bands to go through the establishment of self-governance for the respective tribes? In Canada, a horrific amount of money is spent on lawyers during the negotiation process, and it takes anywhere from five to 15 years for our native bands to achieve self-governance when dealing with the provinces. The provinces equate to your states. What has the experience been in the U.S.? Have they found a way to mitigate the costs in any way, shape or form?
Mr. Cornell: It has been costly, and a lot of that cost has been borne by the federal government. However, one of the more striking things that has occurred is that we are seeing this pattern of assertive and effective governance leading to increased economic activity, which leads to alternative sources of revenue that allow those nations to reduce their dependence on federal funds.
The process of creating those governments can be costly. The growth of tribal government in the United States has often been a growth by federal program; so whenever a new program is announced in Washington, all over the country Indian nations say, "Hey, we need an office to do that." They start an office funded by the federal government. That is not a very productive way to create governance.
The smarter tribes with some of the smarter leadership among indigenous nations have realized that we need to build governance that has a different logic — one that is not based on where federal funding can be obtained. We need to build governments whose structure reflects what we are trying to do for our own people on our own lands; then we will look for the funding to do the things we want to do. Rather than looking for what is being funded and then deciding to do that, let us decide what to do and then search for the funding. That turns out to be more efficient and effective for getting things done, but it requires a mental shift. We have had to remember that, in the United States, we have spent more than a century teaching dependence. We are now faced with needing a generation of leaders that is not in the habit of looking to the federal government for solutions.
We have, however, been fortunate in having some indigenous leaders who have been aggressive and assertive at getting away from that, including the chairman of a tribe who, last year, said to us, "My goal is to not take a single dollar from the federal government. That is my economic development strategy." He said, "They owe me all the money they can possibly give us because the land they took from us is worth far more than they will ever give us, but my experience is that every federal dollar is a leash around my neck. Therefore, my development strategy is to replace those dollars with our own revenues." He admitted, "We may never get there, but that is what we are trying to do. We are trying to create the enterprises that bring in the revenues that give me, ultimately, freedom. Freedom because the dollars are mine and I can do whatever I want, and no one in the U.S. government can tell me that I need their permission."
That is the kind of leadership that realizes that, realistically, it needs the federal government today, but it needs a strategy different from one that is dependent on it. We are seeing a shift that will have real cost benefits from the U.S. government's point of view. However, that shift takes time.
I would also point out that successful development on indigenous lands does tend to have spin-off benefits to non-indigenous peoples. We have not yet found a way to look at this systematically, but there is growing evidence that where you see sustainable development on indigenous lands, you tend to see reduced welfare rolls, reduced burdens on federal taxpayers and increased spin-offs to non-native communities. If you went to the White Mountain Apache reservation in Arizona today and said you wanted to shut down indigenous gaming, you would find all the non-Indian communities around that reservation saying, "Don't shut them down. That is the lifeblood up here."
The Citizen Potawatomi Nation in Oklahoma, which today owns the First National Bank of Shawnee, and the people in the city of Shawnee, a mixed-race community in Oklahoma where the Citizen Potawatomi Nation is headquartered, today looks to Rocky Barrett, the chairman of that tribe, to run the economic engine of this community. Until this tribe got up on its feet and started being productive, this place was dead for decades.
We are beginning to see those kinds of payoffs, where we see economic development. I think, in the long run, we are able to say that tribal sovereignty, combined with capable tribal governance, is an economic win-win situation for indigenous and non-indigenous peoples alike.
Senator Hubley: You have identified jurisdiction, capable government and culturally appropriate institutions as being perhaps as important and more important than education, location, the natural resource index and so on. Those are the things that we automatically think of when we contemplate lending support to our Aboriginal communities. You are saying that there might be a better way of supporting them, that we may be putting funding in the wrong places at the wrong times and for the wrong reasons. Would you comment on that, based on your experience in studying the Indians of the United States?
You did mention the gaming issue. We already have reserves in Canada that run gaming operations. Are you comfortable with that occupation? If there is an economic spin-off, is that all that matters, or do you feel that there might be a better way for a community to develop its economy?
Mr. Cornell: In regard to the first question, I think I would be more comfortable saying what I think funding should be going into rather than what it should not be going into. I cannot say that where funding goes now is a mistake. For one thing, I do not know enough about the distribution of funding in Canada.
In the United States, some of the programs that are being funded now and that do not address these issues remain critical programs. In communities with health, housing and other problems that indigenous communities in the U.S. experience, these programs are literally lifelines. Therefore, I would be hesitant to say we should not be funding those endeavours.
My concern is much more about the lack of funding for the kinds of things that I think could be paying off more. For example, when I talk about building governance capacity — and this is perhaps more relevant to the U.S. than Canada — in the United States, most Indian nations have tribal courts. They have dispute resolution mechanisms. These courts have substantial civil authority and limited criminal authority. They are crucial to economic development because, if an investor in indigenous lands has a dispute with the nation itself, the investor wants to know that their court will give him a fair shake.
Our data shows that keeping politics out of tribal courts — that is, an institutional buffer between elected leaders and judges where both are from the same nation — has concrete bottom line payoffs on employment rates. We have told some tribal councils that if they want to reduce their unemployment rate by five percentage points, they should get the politics out of their court system. We have told them that they will send a message to investors that they will be treated fairly, that is, they may win, they may lose, but they will get a fair shake in your court. They will be more likely to invest, and that will lead to economic development.
What does that mean for funding? Why does the United States government not have a major program to assist indigenous nations in developing tribal court systems? That is what I mean by investing in institutional capacity building. We need a program for those nations that want to build formally established legislatures, whether they are called tribal councils or whatever, rather than having Washington saying, "We know what you need, and we have just passed a bill that allows you to establish those legislatures." We need funds for a program to look for six or a dozen models of successful legislatures in Indian country. We will record those models, put them down on paper, and make them available to any Indian nation that wants to engage in constitutional work. The United States government should be supporting constitution-making in Indian country and constitutional reform with an eye to supporting a constitution that fits their notions, their political culture and their agenda. That is where I think we are missing the boat on federal funding.
In terms of gaming, my view is that indigenous nations should have the right to engage in whatever economic development strategies they wish. If that includes entering the gambling industry, my view is: more power to them. In the United States, a significant number of nations are involved in the gaming industry. That industry has been very productive, but the benefits are narrowly distributed. It turns out that the best predictor of how you do in the gaming industry is based on your location and the extent of competition you face. Indigenous nations close to large markets and not facing much in the way of competition from other gambling enterprises have done extremely well. Others have entered the gaming industry with very limited effect on their economic situation or revenues because they are poorly located or face steep competition.
The critical question is: What do you do with those revenues? The laws that underlie indigenous gaming in the United States require indigenous nations to use their revenues to benefit their people. They cannot line the pockets of casino managers or the like.
What is impressive to me is that many Indian nations in the United States have done just that. For example, the Gila River Indian community in Arizona has invested heavily in public safety. They have their own police force, fire fighting force, ambulance corps. The result has been to reduce emergency response times in that community from more than 45 minutes on average to less than 15. That is a quality of life change of major magnitude and that is something they chose as a priority and they have made it work.
The Grand Traverse Band in Michigan has taken gaming profits and used them to diversify their economy. I asked them 10 years ago what their economic development strategy was, and they told me that it was to use gaming profits to build an economy that does not depend on gaming profits. They are a long way towards doing that.
Some nations are using gaming to secure a higher quality of life and a better economic future. Other nations are not making the same kinds of decisions and not doing as well. If we put this kind of power back in the hands of indigenous nations, we will have to expect and tolerate some mistakes. These are human societies. We all make mistakes.
Senator Hubley: It is refreshing to hear what you have learned and the amount you have learned and how you empower the people to empower themselves. You do not do it for them. Do you find that governments are taking a different approach to supporting native communities? Is it making a difference? Has your report gone forward and perhaps been reviewed by politicians who might be making policies in that direction?
Mr. Cornell: It has. We face a problem in the U.S. that looks different from a U.S. perspective. The indigenous people in the United States are an extremely small blip on the political radar screen. It may seem to indigenous people in Canada that they are not a very big blip here, but from a U.S. perspective they look enormous here in terms of the profile they occupy in public policy debate. It is difficult to get the attention of the U.S. government on indigenous issues. They tend to get displaced on the agenda by numerous other issues.
The answer to your question is that we have, on a number of occasions, testified in Congress on this subject. We have been asked to brief officials in the Bureau of Indian Affairs about it. Have I seen significant changes as a consequence? I think there are some policies that did not go forward partly as a consequence of what we had to say. Presently, the U.S. Supreme Court is not being positive toward indigenous jurisdiction and indigenous sovereignty.
From our point of view, we are fighting a delaying action, trying to help the U.S. government recognize that they have spent about a century now, 80 years anyway, exploring every conceivable policy that might improve the situation in indigenous nations. In all that time, only one policy has shown any sign of sustainable positive results and that is the policy of self-determination. That is a policy that currently our own Supreme Court is undermining. To me, that is a great danger to the future of these nations. If we were able to stop that undermining or hold it back, I would feel we have accomplished something.
Senator Watt: What we are hearing today is very encouraging. I am an Inuk from the Arctic. In the past I was one of the instrumental persons leading our people on entering into negotiations with the Province of Quebec and the Government of Canada. The matters you are talking about are very enlightening because, when you describe what works, what makes it work, that is what we went through. It is very rewarding to hear that because those were the things that we tried to keep in mind when we were going through the process of developing what we achieved through the negotiations.
There are differences between Canada and the United States in the terminology that is used from time to time. Here in Canada, our government is afraid to use the word "sovereignty." Our people, whether they be the Indians, the Metis or the Inuit, have been driven underground. The fact is that they cannot use the word "sovereignty" even though they have tried to indicate that so many times. The word "sovereignty" is not accepted or perceived well in Canada. That is a stumbling block here. I do not understand why there is such caution attached to the use of that word.
I do not think this is an issue to the American government. I have learned to appreciate that over the years. You spoke about governance. I agree that you should put the responsibility in the hands of the people. They are the ones who will be directly impacted and who must live with the consequences. They are the best people to deal with that. If you do not have the governing capacity, and if you do not have jurisdictions, you are bound to be influenced from outside. As we know, that influence at times can disturb the well-being of the community.
In this country, the question of jurisdiction has not been completely dealt with. That relates to the fact that Aboriginal people, in some instances, are not confined to small reserves. Many Aboriginal people still claim to have access to a large piece of territory. That creates a competing interest.
I do understand what you say, and I wholeheartedly believe in the approach that you have highlighted. That is the only way it will work.
The problem is that you have state governments in the United States as well as the federal government. Here in Canada we have the provincial and the federal governments which both have law-making power over us. Let me speak to an area that has been troubling me over the years. When you enter into comprehensive claims with the Government of Canada or the governments of the provinces, at the end you have to agree that the general laws of application apply to areas beyond what you got. They give with one hand and take back with the other. The question of jurisdiction is not in the hands of the Aboriginal people.
The governing institutions in Inuvik were not produced by us. We have borrowed those from other societies. Hopefully when we begin a transaction to merge the two, we will create an instrument that can be understood by the bigger society. We have to live through that. It is not an easy thing to do.
In Canada, if we remain afraid to talk about sovereignty, jurisdiction and having a government of our own, I am afraid that we will have a long way to go.
Your experience has highlighted the fact that there is a benefit in allowing a people to take care of themselves rather than being constantly dependent on the government. How would you recommend that we, as a committee, deal with the question of sovereignty and jurisdiction so that our politicians in Ottawa, in the provinces, and the general public recognize this quickly, so that we do not end up losing more time and money?
Senator St. Germain make the comment that the Department of Indian Affairs is a huge animal. We know that it is an industry in and of itself. I am not a believer that that should go away, not at this point. However, the opportunity must be given to a small group of people, Aboriginal people, to be able to develop confidence in themselves. As long as there are restrictions in the authorities, because the federal government makes laws on a daily basis that impact us, as do the provincial governments, there is no real hope of moving aggressively towards finding a solution. How do we deal with that?
Mr. Cornell: That is a very interesting question. Let me say a couple of things. First, you are right that the term "sovereignty" carries different baggage in the US from that which it carries in Canada. Some of our work is fairly well known amongst some indigenous nations, as it is Canada. We have sometimes been misinterpreted, I believe, to be advocating a kind of sovereignty that is all or nothing. It was our own sort of ignorance of the baggage that "sovereignty" carries here that led us to be interpreted in that way.
In the United States, when we talk about tribal sovereignty, it is not a zero-sum game. Sometimes sovereignty is shared between governments, native and non-native. There are governmental domains in the US where indigenous nations have a very substantial degree of sovereignty. What I mean by that is that they have a substantial degree of jurisdiction. They call the shots. There are other areas where they have limited jurisdiction.
I think part of what happens when the term "sovereignty" is used in Canada is this idea that you are either sovereign or you are not. If you are sovereign, where is Canada? Where is the province? That is a different way of thinking about it from the way we think about it in the US. I must be sensitive to that. Therefore, instead of using the term "sovereignty" I talk about jurisdiction. It seems to be a much more easily understood term in a place where sovereignty has that all-or-nothing sense about it.
I think that the educational task that you point to is extremely challenging. Our experience in the United States is the following: The best way to educate people is not necessarily with nerd academics like me. What you really want to do is tell stories. What we have found to be most effective in the United States is stories of success. Those carry enormous weight. I am not only referring to stories of a nation that is economically successful.
You mentioned relations between these nations and provinces, for example. We are doing a study right now that is looking at intergovernmental agreements involving indigenous nations and either state or federal governments for the management of certain natural resources that move across jurisdictional boundaries, such as wildlife. It is tough to manage elk effectively if you have two governments who are not talking and the elk move across their border.
In New Mexico, the Jicarilla Apache tribe has a working relationship with the state to manage elk that migrate on and off their lands. When the elk are on their lands, they claim and exercise very close to absolute sovereignty over that resource. When the elk are in New Mexico, the State of New Mexico does the same thing. They were at loggerheads until they worked out a way of cooperating and, of course, the management of the elk herd vastly improved once they did that. That is a success story that tells other states that have resource conflicts with indigenous nations that it is possible to work out a conflict that not only reduces the amount of litigation but also improves the quality of the resource. The elk benefit.
We have stories like that of economic success or of cooperation in education. The issue came up earlier about education where indigenous nations are sitting down as partners in states and municipalities to improve educational systems and make them more aware of the needs of the indigenous nation.
Where you can tell those stories of success, our experience is that peoples' attitudes begin to change. In the United States we have held on to the idea that Indian country is poor until we go out there and discover all this innovation and all the success stories. Those stories do not dominate the headlines because the headlines do not cover the majority of what is happening, but the success stories are popping up all over the place. When you start to document them, suddenly people say, "My gosh, I had no idea that that is what gaming is doing." As a result, the idea toward gaming in Indian country changes. I had no idea that the Jicarilla Apache tribe had world class science that made the state of New Mexico come to them and say, "Can we work with you on managing elk? You have better science than we do." Those kinds of success stories tend to change people's attitudes.
We have a program in the United States funded by the Ford Foundation and run by the Harvard project called "Honouring Nations." That is shorthand for the full name of the program: "Honouring Contributions in the Governance of American Indian Nations." It is a competitive program. Every year, Indian nations themselves nominate programs that they believe demonstrate excellence in indigenous governance. That set of judges does site visits, and eight of those applicants get high honours. That is published and put out to the media. It gets on television. It goes into the New York Times. It goes places, and people say, "Wow, I just heard about the Navajo nation court system," which is a brilliant piece of innovation combining western jurisprudence and the indigenous law of the Navajo people in a brilliant piece of work that Navajos worked for years to produce. Today, it deals with 9,000 cases a year, and it is an exemplary judicial system. If that story is not told, people think of tribal courts as these incompetent, dysfunctional bodies. They are not.
To me, the most effective education is the track record that indigenous people are putting together. One of the investments that needs to be made in my country, at least, is in publicizing that track record and helping other indigenous nations ask how they can do what the Jicarilla Apache did with elk or the Swinomish tribe did in cooperating with Skagit county on land issues. The more of that we do, the more attitudes change.
Senator Watt: My next question will be more on the economic side but touching on the governance aspects, to a certain extent. In an earlier remark, you mentioned that capital is important. If you have no capital, you can do nothing. You could do something, but you could not generate revenue to the degree that you do when you have capital.
In that area, I would say that I am from a successful group in terms of creating economic opportunities and things of that nature. As a matter of fact we are, if not the second, then the third largest airline carrier in Canada. We have created that. That belongs to the Innu, the Eskimos, and we have been very successful in regard to international shrimp fishing — things that we know and can control. When you have capital, there are things that you can do that do not occur to you when you do not have the capital. If you have the capital, there are things you can do.
When the governing structure of the tribal council makes business decisions, I would imagine that they are making a collective decision on behalf of collective groups. Am I correct so far?
Mr. Cornell: That is what they are supposed to be doing.
Senator Watt: When they are dealing with economic opportunities and, at the same time dealing with their governing capacity, do they wear two hats or one hat? Do you understand that scenario?
Mr. Cornell: Absolutely. This has been a key finding coming out of the work on capable governance. One of the crucial pieces of that process is keeping politics out of day-to-day business management. That does not mean out of strategic economic decisions. For example, the Navajo nation, the Hopi tribe and several others, have decided on a number of occasions not to participate in the gaming industry. In some cases, that decision has been made by a vote of the people. In some cases, it has been made by councils. That strikes me as exactly what we would elect leaders to do. Do we feel our nation ought to be in this sector — no or yes?
When it comes to actually running the business, it is critical that elected leadership not interfere in that. Invariably, political people have a set of concerns having to do with their constituents, perhaps, or re-election and so forth that are likely to lead to poor business decisions, just as business people are likely to have concerns that would lead to poor political decisions.
Senator Watt: There are distinctions between the two.
Mr. Cornell: There are distinctions between the two. We did a survey of 125 tribally owned and operated businesses in which the question was: Do these businesses, or those who run the business — the manager of the business — report directly to the tribal council, or do they report to an independent board of directors that may be appointed by the council but has its own brief and does not have to act on council orders? Where we see a buffer of some sort between political leadership and day-to-day business management among those 125 businesses, you are nearly five times as likely to be profitable where there is a buffer as where there is not.
We do a lot of work, not just research but hands-on work, with indigenous nations trying to improve governance and other sorts of things. We spend a lot of time on this question of managing the interface between government and business. Some nations are not pursuing government-owned businesses. Government-owned businesses are quite common in Indian country in the U.S. We are seeing increased emphasis in the last few years on developing tribal citizen entrepreneurship: essentially, small businesses owned by individuals or families. That seems to be a rapidly developing strategy.
Another crucial piece of this issue that you have raised is dispute resolution. Not only do you need to keep politicians out of day-to-day management of the business but if you are trying to encourage business, business also has to know that, if it gets involved in a dispute, it will be treated fairly. Those two issues speak to that.
We have had some tribes that tried to do it all. In the early 1990s, I was asked to work with a tribe where the tribal council was the board of directors of their development corporation. They met in the morning as the council. After lunch, they met as the board of directors. To their credit, they realized that this was an insane way to run a profitable business, and they asked us how to break it up and do it differently.
Senator Christensen: It is an interesting exercise to look at the two different countries. The approaches are considerably different. In the issues that you have outlined, having jurisdiction, ownership, accountability and good leadership in established institutions, I agree with you that these are essential for a good climate in which business can then grow, be stable and have the backups that are needed to be successful.
Risk capital is when the persons who are making the investment, if it is their capital and they are investing it and managing it, certainly there is a greater impetus on them to be successful because they personally have the risk in it.
In the examples that you were giving, were those businesses band/tribal businesses, or were they individual businesses? Where was the risk capital to develop those businesses coming from?
The other question I have relates to land. You have reservations. Are those reservations fixed pieces of land? Is there any negotiation for those areas to grow? If not, how do the bands or the tribes manage the growth of their nation and provide for that growth? In some of our areas there are very small reserves, and one of the problems that so many people have is that there is no place for them to grow, and so they leave. With our system under the Indian Act, once people leave the reserve they are no longer eligible for many of the benefits that go with living there, and they become lost people; they are in no man's land.
In the systems that you talk about, where do the Aboriginal governments fit into the government structure in the United States? Where do those band councils and tribal councils fit? Are they autonomous? Are they only autonomous on their lands? When they are dealing with municipal governments or state governments or federal governments, what is their structure?
I come from Yukon. We have a land claim umbrella agreement with 14 bands that each have the ability to negotiate self-government agreements. Through the Yukon First Nations Council, they deal government-to-government on an equal basis with the federal and territorial governments. They are a third level of government. On their particular lands they have total jurisdiction; on others it is shared.
Could you elaborate on some of those areas?
Mr. Cornell: First, on the issue of capital, in most cases the original capital has come, sometimes rather opportunistically, from the outside. For instance, from a land claims settlement, from a windfall of some sort or a natural resource deal of some kind. One of the benefits of gaming to some indigenous nations is that it has created in essence a capital fund that can be invested in various things.
If you go back to the 1960s, aside from land claims there was little wealth in Indian country that was fungible. There may have been wealth in the ground but there was not money that you could do anything with. The challenge has been to get money from the resources that are in the ground, from federal grants, land claims or some other kind of windfall. That is for the major business initiatives.
Today, on the private tribal citizenship entrepreneurship side, much of this is small business. I am thinking of the Oglala Sioux tribe at the Pine Ridge Reservation in South Dakota, which is currently experiencing a burst of entrepreneurship from its own citizenship. Much of it is bed and breakfasts, or a modest construction company of a guy who took his own carpentry tools and two employees and started building houses and buildings. Then, as he made a little bit of money, the company grew. The most striking example is that of a woman who does mail order fulfilment, catalogue fulfilment, event organizing, telemarketing and various other things from the middle of South Dakota. She has 50 work stations set up in a shed and employs Oglala women. Her company is called Lakota Express and is an absolute smash. She has contracts with Microsoft, the U.S. Department of the Interior. How did it start? She spent 10 years piecing together a dollar here or there, trying to get enough money to get the business going. It is a classic, small business start-up of the sort that we see among immigrants. We see it across both countries, I am sure.
The big tribally-owned enterprises typically depend on some piece of start-up capital. That usually comes from land claims, gambling, or something like that. Having said that, many of those businesses are very successful, have paid off their debts, and are making revenues for the nation. We have done some case studies of some of those businesses and some of them are brilliant. In the 1990s, the White Mountain Apache Tribe was running the most productive sawmill in the western United States, tribally owned and operated, outperforming Weyerhauser and every other private timber operator in the west. We see some cases like that and they are very impressive.
In terms of reservations, the reservations have fixed boundaries. However, tribes can try to move additional lands into what is called trust status; that is, into a situation where the nation exercises the same jurisdiction over newly acquired land as it does over the original reservation.
Senator Christensen: Is this purchased land?
Mr. Cornell: This is purchased land. They can try to do that. It is not easy to do and the federal government must approve it. It is a complex process that is not always successful.
With regard to the issue that you raised of growth, many of the reservations in the United States are much larger than here, but growth is a problem. It is particularly a problem on some of these very small reservations in areas where you have less of a brain drain because you are close to significant job markets. If you have a small reservation near an urban area, you get many people who want to live on the reservation because they can support themselves by working in the nearby city but still live on the reservation and be part of the community. Yet there are extreme limitations on housing stock, land and things such as that. It is a problem. I am not sure we have any solutions to that problem that would be new to you. It is a problem that some Indian nations are beginning to address. It is less of a problem in the United States than it is here because the land base is larger for these nations.
Where do the governments fit in? You described the problem when you described the situation in the Yukon. The U.S. Constitution recognizes three orders of government: Federal, state and tribal. In our political processes we tend to forget the third order: tribes. This is part of being a small blip on the radar screen. The fact is the relations between tribes and states and tribes and the federal government are viewed as government-to-government relationships. They are constrained by the kinds of limits on sovereignty that I talked about before. Most tribes have rights and powers comparable to those of states.
Senator Christensen: They could develop their school systems and housing systems.
Mr. Cornell: They can take over their own school systems; they can issue bonds; they can have their own law enforcement institutions; they can run their own courts. Some tribes do run their own school systems.
Senator Christensen: That is on their own lands?
Mr. Cornell: On their own lands. They can do a lot of things off their land economically by investing. Many indigenous nations have used an outside-in approach to economic growth, taking money that they have obtained one way or another and investing it off the reservation and then beginning to generate activity on the reservation by exploiting an opportunity somewhere else. We have seen some very shrewd Indian business people do that. Their target is reservation economic improvement, but they begin by investing somewhere else to produce a revenue stream that they can then feed into the reservation.
Senator St. Germain: For clarification, in regard to the land base, are there any outstanding claims that Aboriginal people have in the United States that they can negotiate? Has there been any breach of trust on the part of the Government of the United States that native bands can go back and seek lands that were taken from them unjustly?
Mr. Cornell: Yes, there are a number of cases where there are claims currently. There is a long-standing issue in South Dakota where the U.S. government has offered the Sioux tribes of South Dakota, of which there are several, what is now approaching $200 million, including interest. That is in an escrow account. That is compensation for the loss of a piece of land called the Black Hills. To date, the Sioux have said they refuse to take a dollar, saying that they want the Black Hills, not the money. That case remains unresolved. From the point of view of the U.S. government, it is resolved; from the point of view of the Sioux, it is not.
There are other cases less well known in the U.S. where there are still outstanding unresolved claims. We had one recently resolved for the Oneida Nation in Wisconsin. There are claims in New York State. There are a number of cases in which there are Indian groups who are seeking federal recognition as tribes. Typically, that includes the establishment of reserved lands for them. That also is a very involved process.
Senator St. Germain: Does this include privately held lands, fee simple lands held by non-Aboriginals, or is it generally just not Crown lands?
Mr. Cornell: Public land in the U.S. Some of the claims certainly include public land. I do not know of a tribe that has said they actually want to displace a private landowner. They want to have the claim recognized and then negotiate return of some lands in compensation for others. Yes, to answer your question: some of those claims are not limited to public land.
Senator Christensen: I am trying to learn more about your system. On tribal lands, do individuals own land within those lands, or is it land held by the tribe as a lease situation?
Mr. Cornell: It is enormously diverse. There are some reservations in which virtually all the land is tribally owned. I say that title is in the hands of the tribe; it is typically in the hands of the U.S. government on behalf of the tribe, but it is essentially tribally-owned land.
There are other reservations, however, in which, thanks to some rather misguided federal policies in the late 19th century, the land was assigned in individual allotments to tribal citizens. In that case, there is a reservation where the boundary includes some quantity of tribally-held land and significant quantities of land held individually, sometimes by tribal citizens. In some cases, the citizens have sold the land. Therefore, there are non-Indian owners of the land within the reservation boundaries. It is a mixture and you have to look in different parts of the country to get a handle on the situation in different areas. Some of the toughest legal cases now have to do with tribal jurisdiction over individual lands held by non-citizens.
Senator Christensen: Where would persons on reservations where there was tribal ownership get their collateral to develop private entrepreneurship?
Mr. Cornell: There is not a market in tribally-held land to be sold to individuals. Individually-held lands tend to be taken out of tribal ownership and given to individual citizens of the nation. No financial transaction occurred. The U.S. government simply said that tribes had too much land and so they broke it up into little parcels and gave it to individuals. There was no transaction involved. Today, if you own a piece of land within a reservation boundary, you can use that land as collateral because you have title to that land.
Senator Léger: You said that in the United States there are three orders of government. Why do I sense such a fear of even touching this third order of government? Is it because of our British tradition? What would you say about that? We have different systems but I have felt great fear in passing to that step.
Mr. Cornell: That is a very interesting question, senator. First of all, describing it as an order of government grants to it a kind of status that we are not accustomed to; that we have not seen in the United States. If you asked many United States citizens whether Indian Nations are a third order of government in the same sense that state and federal government are, they would say no, of course not. If you go back and trace what the Constitution says, what the treaties say and what the Supreme Court has said, you discover that, in fact, it is the case. When people are not used to thinking about it in that way, the consequences of beginning to think about it in that way are unknown, therefore, they are fraught with possibilities that may not be true.
This comes back to Senator Watt's question about how to educate people. In the United States, when people think of an Indian nation as a governing power, much depends on what their past conceptions of indigenous people in the U.S. has been. In the southwest parts of the U.S., and particularly in communities close to reservations, you still hear stories and carry legacies of a much more conflictual period in the U.S. than has occurred in Canada. The Indian wars were long and destructive. In small towns close to reservations, sometimes the legacies of hatred, distrust and stereotyping from that period have survived. It is hard for people in those situations to deal with indigenous peoples as equals, and as a level of government.
For those who do not have any of that experience but are professionals who have never thought about Indian country, it is a major conceptual step to begin to think in terms of Indian nations as governments. The stories that we have been accumulating about the remarkable things done by indigenous nations are one way of dealing with that attitude because they enlarge the imagination about what indigenous governments can mean. Some indigenous nations have made changes in health care, for example. The Grand Traverse Band in Michigan has taken over its health system from the federal government. They are hiring the doctors and running the clinic. They did that because they believed the federal agency, the Indian Health Service, would not respond to what they believed the crucial health issues were in their communities. They decided to use gaming dollars to take over the system and reorganize it. The result has been positive. When we trace some of those stories we find that people who may be like I am but with no experience or acquaintance with Indian country beginning to think differently about what is happening.
A few months ago someone said to me: "Those Indians are all rich now, aren't they? " When I began to talk about the reality of gaming and what it has done, by the end of the conversation that person had an entirely different idea of what Indian nations are trying to do. They are trying to rebuild themselves and reshape their futures, sometimes in extremely interesting ways that may have lessons for many of the rest of us. That is a different concept.
Senator Léger: For me, it is not the ordinary citizen but rather it is the government and the people who have it all or have nothing — exactly the way it should not be. The teaching that we have to do is there. It is of the governing body themselves. Perhaps that was because you had to see to all of the aspects, but the real teaching is there.
Mr. Cornell: I will make one other comment that may be relevant. If you recognize significant jurisdiction in indigenous hands, someone will give something up, whether it is DIAND or the Bureau of Indian Affairs or the State of New Mexico. At some time, someone will have to go part-way in their direction. It was difficult for the Bureau of Indian Affairs to let go of decision-making power. It is still hard for them to do that in Indian country, just as it is hard for an indigenous tribal council to let go of control of that business so that it can flourish.
I take your point about the government facing, perhaps, the biggest challenge. For the U.S federal and state governments to accept that Indian nations may have better solutions to their problems than we do is a major step.
Senator Léger: We live that, yes.
Senator St. Germain: Communal ownership is combined with private ownership on reserves.
Mr. Cornell: You see many mixtures.
Senator St. Germain: In the private ownership you spoke of, were you referring to the five tribes in Oklahoma?
Mr. Cornell: You are quite right. They are in Oklahoma, and in many other places as well.
Senator St. Germain: My next question comes about from all your studies and expertise. I am quite aggressive on the Department of Indian Affairs and Northern Development because I have seen the errors they have made. They have done good things for Aboriginal peoples as well. The paternalistic aspect of the organization undermines the capabilities of our Aboriginal peoples. It restricts them in so many ways. I have been both in government and in opposition — today I sit in opposition — and my views have never changed. If my party became the government again in this country, my position would not change at all.
I have taken an aggressive position against them because no one wants to listen. Everyone wants to continue doing what they have always done. As long as we continue to do what we have always done, we will always get the same result.
This is huge, and governments seem to be reluctant to take that major step. The Indian agency in the U.S. is still there. Do you think it will ever become redundant so far as its role in dealing with the Aboriginal people down there is concerned? What would you suggest would be the best approach to mitigate or minimize involvement of our agency, and give our Aboriginal peoples a better chance?
If we look at the Auditor General's reports and all the various aspects, we had a royal commission that did a comprehensive study on Aboriginal issues, and they are really not saying anything different from what you have said here tonight. You have enunciated it more clearly, and with examples and substance. I am imploring you to give us your suggestions about how we could best get the government of the day thinking that maybe it is time to really revamp our thinking on this subject. I cannot see that much progress is being made in that area.
Mr. Cornell: I would go back to saying that the critical issue is: What role are they playing? If there is a lid being imposed by DIAND on the freedom of indigenous nations to pursue development in their own ways, then I would say that is a major obstacle that will cripple any developmental effort. Does that mean that the answer is to get rid of DIAND? I do not know. To be honest, I do not have a view about whether the Bureau of Indian Affairs in the United States should be done away with or not. To me, the issue is different. It is: What role should the Bureau of Indian Affairs play? If it is a decision-making role, where an indigenous nation says, "We want to do this and we have to go ask the BIA for permission," that is a problem. Why do they have to ask the BIA for permission?
Someone might say it is because it is federal money that they are using. Very well, so you have to be accountable to funders, but does that mean I have to pass my development strategy past the bureau? They do not know my nation; they do not know our situation. I am to trot my strategy past a bunch of bureaucrats in Washington and say, "Can I do this?" It is crazy.
On the other hand, does that mean that they have no role to play at all? I do not know. I can think of roles for them to play. Today they do things in the U.S. that I think are important. What I object to is where they become part of the rock that Indian nations have to roll up that hill every time they want to do something. That, I think, has to be stopped. My guess is that that would have to be stopped here if that is the case here as well. It is a role issue, rather than an existence issue.
I am not convinced that, in the U.S., a campaign to do away with the Bureau of Indian Affairs is the answer — it might have unintended consequences that we cannot now perceive — but a campaign to move the bureaucracy into an appropriate role in the process of development, and to recognize that we will not solve Indian problems in the bureaucratic halls of Washington, D.C, that is a worthy campaign.
Senator Watt: I will follow up along the lines of what Senator St. Germain is highlighting here. More than one report was done. Senator St. Germain highlighted the royal commission report, but there were also two sets of reports. One was done before that by the government itself, called the Penner report, which is very much along the lines of what you are talking about. The third report, the last one we did, was when I was the chairman of the committee; we produced a report. That committee included Senator St. Germain and several other participants. There are three sets of reports that are collecting dust right now in the library and not really going anywhere.
Listening to you talking about what works and what does not work, and the government at times trying to impose their will upon the other group of people, probably they should not be doing that because they do not know the area, or the people, or the culture, or the language, or what the issues are. That has been a big problem.
The other problem is that one law fits all concepts. This is what we have to deal with as senators. At times, we have to take a strong stand because we know for a fact that certain bills will impact the Aboriginal people and will not be good for them economically, socially, culturally or in other ways. We do not get to be heard — they do not hear us.
I wonder if the time is coming that our neighbours, the Americans, have learned to live with their fellow citizens, the Aboriginal people, hearing about the institutions that they have, and the respect for one another. Maybe because America is so big, it is not really noticeable, but here in Canada I think the Aboriginal people are being looked at very negatively. There are no positives to it whatsoever.
This is a hurdle that we as Aboriginal people try to overcome. Even when we are successful in some areas, as I was highlighting — petroleum, shrimp fishing and processing, airline companies and other activities — that does not seem to be appreciated in a sense, the fact that you are successful.
The two countries are trying to find the solution and trying to work together commonly and learn from one another on that. Maybe we need someone like you that has a slightly different experience, knowing how the system works in America and how they transact between the two groups in things of that nature.
You mentioned about the Department of Indian Affairs. I, too, am questioning whether we should be focusing on that. I think we should be focusing on the development rather than trying through the instruments that the government has. That is something we can deal with later.
Senator St. Germain: My reaction, Senator Watt, is that instead of seeking a middle of the road result, maybe we have to tear it all down and then bring some of it back.
Senator Watt: That is too fast a reaction for my liking.
Anyway, what would you say if this committee came to grips with what they have learned and decided to make recommendations to the Government of Canada and say we need help in this area?
Senator Christensen: No, no.
Senator Watt: Hold on, you do not know what I am talking about here. Help in a positive sense, something that is producing positive results. I know the country to our south does not like to borrow or be influenced by other countries, but this is long overdue, my friends. We have to do something. Otherwise, what is happening here in Canada is not good economically for you or for me. You are not only affecting the social life of the people, but we are being affected on a daily basis — our economy, our right to survive. I think it is a time now that we should be asking for help from our neighbours.
Mr. Cornell: The only thing I would say is that I appreciate your point, but there are some extremely positive things happening here in Canada along these lines. One thing I would encourage you to do, because I know that this committee will be going to various parts of the country to look at what is happening, is to look at not only the problems but also the solutions that indigenous people are generating. Whether it is the Membertou, or Mikisew Cree, or Meadow Lake, or Ktunaxa Kinbasket, or Osoyoos, or Lac La Ronge, or wherever it might be across Canada, every time I come here, and I come up here quite often, I hear a lot about what is not working in indigenous affairs. Then I go out to the First Nations and I am amazed at what some of them are doing. I go back to the United States and, believe it or not, I tell stories about the successes in Canada. I essentially go back — not to a congressional committee — and I talk to First Nations in the United States about what I see happening in Canada. Therefore some of the solutions may in fact be being put in place by First Nations right here, but a lot of it is below the radar.
Senator Watt: If there is a reluctance to empower people, we will continue to have that problem.
Mr. Cornell: That is a fact, and that is a problem.
Senator Watt: We will have to learn to overcome that hurdle and I have no solution. That is why I am asking for your help.
Senator St. Germain: I believe there are some real success stories here and they started in the 1980s. I am sure we have people of your capability, but what you brought to this table tonight, Professor Cornell, is a very understandable explanation of the situation that I have not heard before. It was not convoluted; these are success stories, and they are stories of success that you have said are really important and this is what you are conveying here.
We have some success stories in this country but my people, the Metis people of this country, were recognized in 1982 by way of the Constitution that we are Aboriginal peoples, yet there has not been one thing done. The only time something reared its head concerning the Metis people of this country was last year with the Powley case. That case went to the Supreme Court. It was a hunting case brought against a Metis person in northern Ontario. Until that time the Metis were sort of recognized and lip service was paid, or Metis associations were given money across the country, but nothing other than that. No land claim settlements or anything has ever taken place.
Sometimes the shock factor needs to be used because if you do not, it is, as you say, that most people do not even know that this small portion of the population have the trials and tribulations or the successes that they have, whatever we are talking about. I do not think it is any different here. The percentage of Aboriginals to the overall population is greater in Canada, but in the same breath it is the success stories that will be an integral part.
My suggestion may be that as we get down the road we may ask you to come back. I am thinking out loud, but I think that your ability to tell the story is what is critical because it is so hard to explain in a manner that is acceptable to the outside communities on the question of sovereignty or jurisdiction, which are the key things. In the White community they ask why these people should have a third order of government. These are the things that you perhaps can help us with in the future. I am taking the liberty of thinking out loud, Mr. Chairman, but it would be the wisdom of the entire committee that would determine that.
Senator Christensen: I have observations more than anything else. We are certainly dealing with a complex and difficult evolution. It is a chicken-and-egg situation. The ideal thing would be to get rid of the paternalistic Indian Act because it is that way: it is degrading and it keeps people down. At the same time, though, the majority of our First Nations feel that that act ties the federal government to its fiduciary responsibilities to them, and if that act goes then that responsibility is gone and there is no way of getting it back. They do not like it but they do not want to let it go because of the way it requires the federal government to continue to recognize its responsibility.
I am not sure how we arrive at a way of making the changes that are needed to keep that fiduciary responsibility in areas where it will be positive instead of negative. There are success stories, as Senator St. Germain has pointed out, but there are more that are not success stories. It is the effect of generation after generation of the department working and telling people what to do; you lose the ability to be able to have the initiative to go ahead and do it. There are many bright young people out there now who can do these things, and grow and lead their nations, but it is difficult. As I say, it is a chicken-and-egg situation: How do you get rid of one aspect but keep what is needed?
Mr. Cornell: What you said about the fear of what happens if you let the Indian Act go takes me back to the issue of the Bureau of Indian Affairs. There is a fear in Indian country in the United States about what happens if we actually let anyone do away with the Bureau of Indian Affairs. Are we, at the same time, doing away with the federal government's understanding of its own responsibilities?
On the other hand, I think the situation is more complex here. You are talking about a piece of legislation, but I could not agree more. From my cursory look at the Indian Act, I wonder how we can expect nations to govern themselves with a lousy set of tools that they did not create, that do not mean anything to them, that someone else came along with. It is not even really about self-governance, it is about self-administration or something. It is a modest set of powers exercised with tools that if I were a First Nation I would feel are not mine, do not work, et cetera. Something has to replace it, but the senator's point is exactly right: how do you do that without undermining what is a fundamental relationship of importance? Remaking the tools of governance means you have to get beyond that set of tools. They do not work. That is an outsider's opinion.
Senator Watt: Professor Cornell, we were quite successful in negotiating our constitutional rights only in 1982, when the Constitution was patriated back to Canada from Britain. Maybe we were in the right spot at the right time and we were included in the Constitution. Therefore we do have our rights. Every time when there is a group of Aboriginals who decide to challenge the government's understanding of their rights, so far we have won the court case every time. I do not think I can even remember when we have lost, but we have won cases almost every time.
However, what normally happens is that even if the ruling came down positively in favour of the Aboriginal people, the unwillingness of the government to acknowledge the fact that rights have been restored again by the court causes us to go through this vicious cycle which has no end. What would you say to that? We are almost there in terms of implementation. The fact is that the Government of Canada, whether it is one with Conservative stripes or Liberal stripes, whoever that may be, has an unwillingness to implement section 35 of the constitutional rights because it requires definition. This is where I was coming from in inviting you to come and help us out, to implement section so that we can begin to start operating in the way that our neighbours are operating under the name of their sovereignty, within their lands, with the ability to pass laws and things of that nature. The laws coming to us are interfering with our lives. They are hitting us in our pockets.
Mr. Cornell: I can only really tell you the way in which I would answer that question in the United States. I believe we have a similar problem. The message that we have tried to present to the United States' government is that it is actually in their interest to move in the direction you have just outlined at a very practical, material level. If we want to sustain poverty in Indian country and buy another few generations of these problems and the attendant costs to sustain communities in the face of these problems, then what we should do is keep jurisdiction in our hands, impose our idea of how they should govern themselves, maintain a paternalistic approach to what they do and, three generations from now, some committee will be sitting there saying, "What do we do about this problem?" We will be a lot poorer, and it will have cost a fortune.
Our evidence shows that if we are serious about actually dealing with the situation, then we must begin to think jurisdictionally. The answers may be hard to find but they will require us to move beyond what we know and feel comfortable with. We will have to do that jurisdictionally. We will have to abandon the one-size-fits-all governance fantasy and recognize that indigenous peoples are diverse, that they will create diverse solutions to governance challenges. That is not a problem; it is an answer. We must begin to recognize that they will make mistakes, and we will have to tolerate those mistakes because, in the long run, we will save money, anguish and bitterness.
We believe that at least in the United States we have data to support that argument. For policy makers, that is the strongest argument.
The Chairman: We have undertaken this study because we think it is a very important subject for the Aboriginal people of our country. We recognize that while there are many problems, there are many situations where Aboriginal people are beginning to become very involved in business and economic development, where there is resource development.
In the Northwest Territories, where I live, there are two major resource developments. The first has to do with diamonds, and Aboriginal people are very involved. The second project proposes a Mackenzie Valley gas pipeline from the delta all across our country to the United States and Aboriginal people are becoming very involved.
We see the beginning. I consider it a phenomenon that can be seen everywhere in our country. I was just in the Okanagan and met with the Westbank people. Everywhere in our country you can see signs that Aboriginal people are beginning to engage and become involved with economic development. I consider economic development, the matter of business, as a high endeavour. It takes a high level of organization and discipline, in a sense, to be in those areas. We are very interested in that.
As we begin our study and formulate plans to look at this area, what advice would you give us with respect to framing? What are the important things that you think we should look at so that we can go on with our study and uncover the most, come to successful conclusions and perhaps provide some answers for both government and Aboriginal people?
Mr. Cornell: Mr. Chairman, that is the sort of question I would like to have two days to think about and get back to you on it. A couple of things that occur to me off the top of my head, one which is very much reflected in my own remarks this evening is to be very sure that, in looking at business and economic development, you do not limit your scope to business and economic development. That is not to say only look at governance, but it is to say look at governing systems, too. Those, in our experience, are determinants of success and economic development. You cannot simply be going out there and talking to the business and economic people. You must try to understand how these societies are running themselves.
The other piece of advice that I would give would be to look both at what we would call the positive and the negative stories. Typically, what happens in the United States is that policy initiatives go out there and look at the problems. President Clinton went to Pine Ridge, one of the worst cases of poverty in the United States, to try to understand what is happening in Indian country. You need to go to Pine Ridge, but you also need to go to other communities, such as the Flathead, to understand what is happening. Be sure to look at both the worst things that are happening and the best things that are happening, and to think systematically about what is different in these places.
You do not have that amount of time, but we spent several years listening before we started doing much talking.
Senator Watt: How many years?
Mr. Cornell: Several. Policy makers do not have the luxury that academics have to study these things at great length, but I think listening is a critical part of trying to understand how the world looks from where they sit. Sometimes it even has to do with what is a success and what is not. What looks to me like a success may not look like that to them. What looks not very interesting to me they may feel is an extraordinary accomplishment. In another two days I would have more for you, sir.
The Chairman: Finally, when we began looking at the subject and looking at literature that might be applicable and on point, we discovered there was not a great deal of work that had been done in Canada. We came across your study, the work that you had done in the States. Perhaps you know some professors or colleagues that are doing similar work in Canada that we can perhaps approach?
Mr. Cornell: I am not really aware of very much. A couple of things that come to mind, a professor named Cynthia Chataway has been working on some aspects of governance issues. Someone in the room may know the university affiliation. I do not, off the top of my head.
It is just getting off the ground, but I think the First Nations Governance Centre that is just being born under the leadership of Herb George from British Columbia is a very interesting initiative that has its eye on exactly the right ball; that is, on governance issues. They appreciate good research. They are not a research organization, but they are trying to generate good research by other people. We have done some work for them.
My sense is that at a few universities with which I am acquainted, such as Simon Fraser and some others, there is interest in this area of study, but I have not yet seen very much in the way of actual productivity that I would say is right on point. I am afraid I cannot direct you anywhere. That may reflect the limitations of my own experience here.
The Chairman: Professor Cornell, I want to thank you on behalf of the committee for your presentation and for coming to Canada to deliver it. All that you have said is enlightening and will help us very much in our study.
Mr. Cornell: Thank you for inviting me, I appreciate it.
The committee adjourned.