There has been a veritable flood of writing on aboriginal self-government in the last two decades, culminating in the Report of the Royal Commission on Aboriginal Peoples (RCAP,1996). Almost all of this literature is laudatory, although some cautionary notes have been sounded. Yet aboriginal self-government is beset with some very serious problems. I discuss four of them in this paper.
I try to meet aboriginal self-government on its strongest ground by discussing difficulties arising in the relationship between the governors and the governed in aboriginal communities. I will avoid the easier targets swarming about the proposed relationship between aboriginal governments and the Canadian state -- e.g., the views that the right of aboriginal self-government is inherent rather than contingent; that national institutions, such as a third house of Parliament, should be established; that an aboriginal order of government should be entrenched in the constitution as a third layer in the federal system; that aboriginal governments should be exempt from the Canadian Charter of Rights and Freedoms; and that effective non-territorial governments can be created for those who do not live on the aboriginal land base. Even those who express skepticism on such matters usually see aboriginal self-government as an unalloyed blessing at the community level. Yet some of the most intractable difficulties arise on that very plane.
According to Menno Boldt (1993: 140), "Indian leaders tend to view self-government in terms of taking over the Department of Indian Affairs and Northern Development's (DIAND) authority and structures on their reserves." He is critical of this approach, pointing out that institutional structures have their own logic and that a mere change of personnel "is no guarantee that the entrenched norms of paternalism, authoritarianism, self-interest, and self-aggrandizement by office-holders will be eliminated." Boldt's view is that, if self-government is to be worth having, Indians will have to revive the communal patterns of their past and jettison the formal, bureaucratic institutions imposed by DIAND under the Indian Act. Boldt's diagnosis of the problem is acute. Up to the 1960s, Indian Agents, subject to administrative control by the Department of Indian Affairs, exercised a remarkable fusion of legislative, executive, and judicial powers over the residents of reserves. Those powers have now been largely transferred to chiefs and band councils, even as the Department has withdrawn much of its administrative oversight.
Unfortunately, however, Boldt's solution is utopian. It is true that pre-Contact Indian forms of governance did not possess the formal institutions characterizing modern states -- written laws, bureaucracies, competitive elections, courts and police, and so on. But that does not mean that the informal approach to governance can be revived in contemporary Canada.
The governance of aboriginal peoples was suited to their hunting-gathering way of life with its band or tribal form of social organization (the horticultural Iroquoian societies had more elaborate chiefdoms, but not full-fledged state structures). With some marginal exceptions, contemporary aboriginal people in Canada are now integrated into our industrial society. They are literate and educated, own property (even if property rights on reserves are poorly specified), work for wages and salaries, supply their needs through transactions in the market rather than self-provision, and deal with state agencies in a multitude of ways.
Because of this integration, aboriginal communities will not be able to revive their ancient systems of informal governance. Their own cultures, now closely integrated with the general Canadian culture, require formal government. Members of aboriginal communities have to protect their own property rights and guarantee the market transactions in which they are constantly engaged. Moreover, dealing with the all-encompassing Canadian society requires formal government. Aboriginal communities have to account for transfer payments from Ottawa; and even when they develop internal institutions of criminal justice, they have to provide information about offenders to the Canadian justice system to prevent double jeopardy. And so on. The present reality on Indian reserves is that elected chiefs and councils collectively exercise the kind of formal authority that was once exercised by Indian Agents. That will not change, no matter how the titles are revised. State institutions are here to stay, for aboriginals as well as for everyone else. In itself, this does not mean that aboriginal self-government is unworkable or harmful; it merely means that it will be like other forms of government, and will not fulfil millenarian expectations about the withering away of the state. But there are further questions about how well aboriginal self-government can work in practice.
Aboriginal communities are very small. According to Ponting (1997: 72-73), there were about 610,000 registered Indians at the end of 1996, divided into 609 bands. The mean size of a band is thus about 1000, and the median is even smaller. As of 1993, 70% of bands held less than 1000 people, and only 10% were bigger than 2000. And these already tiny figures give a misleading impression of how many people actually reside on reserves, because about 42% of registered Indians live off reserve. When the problems that such small size poses for self-government are noted in the literature, it is usually under two headings: shortage of financial resources, and shortage of skilled personnel (Franks, 1987: 45). Both are serious difficulties. How is a community of a few hundred people, located far from major centres of population, supposed to provide residents with the amenities of modern life? One obvious response is for small communities to work together to offer services otherwise beyond their means. Cassidy and Bish (1989: 95-114) present numerous examples of bands pooling their efforts in tribal governments to provide otherwise unaffordable services. Another commonly used approach is for an aboriginal government to contract with a nearby city or rural municipality, or with the provincial government, for services as diverse as water and sewerage, fire protection, policing, and education (Dust, 1997).
Although effective up to a point, these strategies of pooling and cooperation are far from a panacea. Several bands might work together as a tribe, but most tribal groupings in Canada are still extremely small by conventional standards, and thus limited in their ability to provide services to their members. Cooperation with other tribes is possible but raises additional problems of cultural conflict. One of the main purposes of aboriginal self-government is supposed to be cultural preservation and revitalization. Some governmental services, such as sewage disposal and paving roads, may be culturally neutral, but others, such as policing, child protection, and education, are culturally sensitive. Working through a multi-tribal consortium cannot help but pose challenges of cultural integrity. The same is true of cooperation with non-aboriginal governments in culturally sensitive fields.
Retaining skilled personnel in aboriginal communities may be particularly difficult. The numbers of highly educated aboriginals are steadily increasing; Ponting (1997: 98) concludes that the "First Nations' post-secondary enrolment rate of 6.5% of persons aged 17-34 is closing in on the rate of 10.4% for all of Canadian society." But even if the flow is increasing, the stock of highly-educated aboriginals will take decades to reach Canadian norms; and as long as that discrepancy exists, aboriginals with advanced education will be in demand, with attractive opportunities off reserve. Many may prefer to work in cities such as Vancouver, Calgary, Toronto, and Ottawa rather than return to the communities where they grew up, even though they continue to retain band membership.
Is aboriginal government really self-government if only the elected officials are band members while the technostructure of administrators, accountants, and other professionals consists largely of non-aboriginals? That's a rhetorical question with no simple answer, but it illustrates a problem unlikely to go away in the lifetime of those now living.
Another problem of size, much less well discussed in the literature, is that of factionalism. Roger Gibbins (1986: 375), inspired by James Madison's tenth essay in The Federalist, points out that "individual rights and freedoms are best protected within larger, more heterogeneous communities where it is more difficult to articulate a majority will and where a multitude of conflicting and competing interests fragment and immobilize the majority." In the older but still powerful language of Madison: "Extend the sphere, and you take in a greater variety of parties and interests: you make it less probable that a majority of the whole have a common motive to invade the rights of other citizens" (Hamilton, Jay, and Madison, : 61).
The empirical literature on aboriginal politics suggests that kinship, if not the only factor, is certainly a key one. The Hawthorn Commission, in studying the politics of 34 bands of different sizes in the 1960s, found that the influence of kinship was hard to pin down on small reserves because almost everyone was related to everyone else. In such small settings, personal ties and friendship were extremely important. But members of larger bands openly recognized kinship as the main principle of politics, particularly in cases, such as the Blood reserve in Alberta, where the legal band is actually more like a tribe composed of multiple lineages. Another kind of diversity, similar in political effect, arises on reserves where some members are descended from Metis who took treaty and may not be regarded by others as really Indians (Hawthorn, 1967: II, 218-224).
In field work done on a large Manitoba Saulteaux reserve in the 1970s, Lithman found about 25 informal "bunches," each with membership of about five to ten, and a varying number of followers. Kinship seemed to be the chief, though not the only, factor in the composition of these bunches. Politics on the reserve, as Lithman perceived it, was pluralistic. Candidates could get elected by pulling together the support of several bunches, but alignments were fluid and temporary, with no permanent majority coalition. While people saw distribution of Indian Affairs benefits as the main purpose of politics, the looseness of the coalitional structure tended to result in egalitarian outcomes, because "every distribution dissatisfies a majority of the community members" (Lithman, 1984: 142-161).
A study of the Okanagan Nation in the 1980s discovered that "in the absence of formal political parties there are informal campaigns [for chief] involving kin and friendship networks" (Carstens, 1991: 232). Tom Pocklington (1991: 115), who carried out a public-opinion survey on two of the Alberta Metis settlements, found large majorities agreeing with the proposition that "if you're looking for something like a job on the settlement or a new house, it helps to be related to a council member." Pocklington (118-119) also found wide agreement about who the leading and favoured families were on both settlements, although he was unable to document the actual practice of nepotism.
In his research on politics on the Blood and Peigan reserves in Alberta, Tony Long (1990: 761) found that extended kin groups "run slates of candidates during each election. Sponsorship of candidates usually occurs in informal kin group caucuses, where decisions are made as to who should run for council or the chieftanship." These kinship-sponsored candidates are motivated by the prospect of economic gain for themselves and their relatives. According to recent revelations from the Stoney reserve west of Calgary, sources of such gain include
- salaries for holding elected office
- extra honoraria for elected officials in aboriginal governments to attend meetings or sit on committees
- poorly monitored expense allowances for travel and other matters
- appointment of family members and political supporters to positions on the band payroll
- preferential access to welfare funds
- assignment of valuable on-reserve property rights, such as housing, agricultural land, and timber licenses.
Strater Crowfoot (1997: 313-315), who was chief of the Siksika (Blackfoot) Nation for eight years, confirms that the family is "a pivotal unit in reserve politics." He calls nepotism the "sustaining discourse" of politics on the reserve. Relatives routinely approach those in power for financial assistance. Opposing factions interpret all decisions in nepotistic terms and plan to act the same way when they come to power. "After the election where I was defeated," writes Crowfoot, "one voter said: 'The Crowfoots are no longer in charge; it's my family's turn.''' Crowfoot gives the impression that this nepotistic style of politics is ubiquitous in aboriginal governments.
Religion can also be a source of faction, with lines drawn between Christians and traditionalists, or between different Christian denominations. Driben and Trudeau (1983: 97) recount how, on one northern Ontario reserve, the Anglicans moved to a new location en masse, leaving the Roman Catholics behind. Religion, of course, is likely to be tightly interwoven with kinship. It is similar in that respect to place of residence, which can also be a political factor where there are multiple nodes of settlement on a large reserve, or where a band or tribe occupies several reserves. There are also economic lines of cleavage on reserves between those who control property rights over housing, land, and natural resources and those who are shut out. Again, these factions are interlaced with kinship because property rights are passed on through inheritance from generation to generation.
As more aboriginal people pursue formal education and acquire highly remunerative employment, a somewhat different class cleavage between haves and have-nots is also emerging; but it is strongly affected by the tendency of more prosperous aboriginals to live off reserve (see the data in RCAP, 1996: IV, 210-217). Even the activists in the aboriginal political movement, unless they are band chiefs, tend to live in major cities, where they work as lawyers, professors, administrators, and consultants. Time will tell whether this new, largely urban aboriginal middle class will remain involved in local band politics.
None of this is to say that aboriginal politics is more factional than Canadian politics generally. All politics is factional. As Madison wrote, "the latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society" (Hamilton, Jay, and Madison, : 55). But whereas factionalism in Canadian politics operates on a large scale and in a formalized way involving competition between linguistic, regional, and economic organizations, factionalism in aboriginal politics operates on a small scale and in an informal way involving competition between kin groups and friendship networks. This familistic style of politics often involves a high degree of patronage and nepotism as winning factions take advantage of the majority position that they easily obtain in such tiny polities.
Roger Gibbins (1986: 374) suggests that the Charter of Rights and Freedoms will help defend residents of aboriginal communities against the bad effects of majority faction. In practice, however, the Charter is unlikely to be of much help because it does not protect property, and factionalism in an aboriginal community typically involves property--nepotistic hiring practices, misuse of expense accounts, denial of housing or welfare, reassignment of property rights in land or timber, and so on. Recourse to the Canadian courts outside the Charter may be possible but is likely to be worthwhile only in cases of aggravated loss, because the legal system is so expensive to use. In many cases, moving off the reserve will be the only remedy available to those who lose factional fights.
Aboriginal governments propose to deal with a remarkably wide range of issues. Franks (1987: 35-36), in a listing shorter than most, mentions six broad categories:
- cultural preservation--the maintenance of traditional lifestyle, language and culture;
- cultural adaptation--assisting a culture and community to change so that it and the individuals within it can interact effectively with the economy and lifestyle of the non-native society;
- service delivery--the economic and effective provision to the community, in a form adapted to and suitable to its needs and circumstances, of services such as health, welfare, education, justice;
- economic development--the active involvement of the self-governing unit in projects and activities which improve the well-being of individuals and the community;
- resources and environmental management -- aboriginal populations who maintain a traditional lifestyle will need some control over the resources of their land base; and
- law enforcement--the relationship of the aboriginal peoples to the law and the judicial system is a major issue at present and will continue to be for most self-governing units.
This list combines functions of all three levels of Canadian government and, indeed, includes some that no government in Canada undertakes. Local governments provide much of the service delivery to Canadian residents (e.g., utilities, waste disposal, police and fire protection), albeit within a framework of provincial funding and supervision. The provinces and the federal government share responsibility for law enforcement, environmental protection, and resource management. In a market economy, government plays an important but limited role in economic development, maintaining the indispensable framework of a sound currency, civil law, vital statistics, and so on. And in a liberal democracy such as Canada, governments are involved in cultural preservation and adaptation only at the margins.
John Stuart Mill wrote (1891: 605) that "every additional function undertaken by the government, is a fresh occupation imposed upon a body already overcharged with duties." It is even more problematic for aboriginal governments, with their small size, limited resources, and shortage of skilled personnel, to undertake such an ambitious agenda. There are bound to be many failures of competence in this tableau. One example is the Manitoba child welfare experiment, in which five Indian agencies took over child protection for Indian people in the province. "The Manitoba agencies," write Comeau and Santin (1995: 149), "failed in their delivery of child welfare services." The number of children in care went up dramatically even as it fell in all other provinces. Reported incidents of sexual and physical abuse multiplied as children were placed in Indian foster homes. Finally, the suicide of a thirteen-year-old boy forced a judicial inquiry followed by a legislative inquiry.
It is true that the aboriginal policies of the federal government, in spite of its much larger resources and greater professionalism, have often failed abysmally. Sarah Carter (1990) chronicles Indian Affairs' failed experiments in agricultural policy in the late nineteenth century, such as home farms and the peasant policy. Driben and Trudeau (1983) document the failure of all economic development initiatives undertaken by the Departments of Indian Affairs and Manpower for the Fort Hope band in northern Ontario in the 1970s. Residential schools are now widely condemned as a disgraceful failure (Miller, 1996), though there was also a successful side to these schools that is now fashionable to overlook.
The initiatives of aboriginal self-government may sometimes succeed where the initiatives of senior governments have failed. Nonetheless, the practical difficulties of resourcing and competence at the ground level will continue to be enormous, no matter what deals are struck at the symbolic level of constitutional politics.
An additional complication is that the extremely wide scope of aboriginal government creates a fertile field for factionalism. In addition to the usual service functions of local governments, chiefs and councils control, or strongly influence, matters such as education and welfare. Within the limits of band custom and inheritance, they also assign property rights to housing, land, and natural resources. In the wider Canadian system, these matters would be parceled out among a welter of public bodies, such as federal and provincial departments, regulatory commissions, courts, city councils, school boards, police commissions, hospital boards, and regional health authorities.
Aboriginal government is not devoid of such bodies, but political authority is more focussed on a single entity--the band council--than is true in the outside world. This concentration of authority means that a small group of officials has control over, or at least a say in, the disposition of large volumes of money passing through the community. Thus the potential rewards of holding office in an aboriginal government are larger than for being, say, city councilor, mayor of a small town, or reeve of a municipal township. Chiefs and councilors have far greater opportunity to appoint their relatives and supporters to jobs, to sign contracts with well-connected businesses, and to manipulate the assignment of property rights.
Aboriginal governments depend heavily on fiscal transfers from the federal government. By far the largest paymaster is the Department of Indian Affairs, but other departments also have significant aboriginal programs. Federal spending from all departments on status Indians and Inuit was estimated at $5.9 billion in the fiscal year 1994-95 (Smith, 1995: 228) and is well over $6 billion now. In addition, band governments receive transfers for particular purposes from provincial and municipal governments, as well as private foundations, that may be important in specific cases, although they are nowhere near the total of federal spending.
Most bands raise relatively little money on their own. Section 87 of the Indian Act exempts land and personal property on Indian reserves from federal and provincial taxation (Isaac, 1995: 275-303). Section 83.(1), added in 1985, allows a band council to levy property taxes on the reserve (ibid., 366-368). As of 1995, 54 councils had created property tax regimes, leading to about $17 million in collections; but in practice this new power has been used mainly to tax non-Indians who through lease or other arrangement occupy reserve property (Jules, 1997: 163-164; Smith, 1995: 243-245). It is still generally true that Indians on reserve do not tax themselves and are not taxed by any other government.
Aboriginal governments also derive revenue by running businesses. There are long-standing, traditional enterprises such as farming, ranching, and lumbering as well as many new ventures such as shopping malls, golf courses, housing developments, gambling casinos, hotels, and financial institutions. Businesses provide cash flow and jobs, but it is often hard to know whether they are truly profitable when they are backed by revenues from government programs, land-claims settlements, or oil and gas royalties.
Fiscal transfers, land-claims settlements, and natural-resource rents all have a common characteristic--they are not earned in the usual sense of the term. Fiscal transfers and land-claims settlements can be enhanced politically through strategic litigation and negotiation, but that is quite different from generating income by working for an employer or investing one's own resources. Natural-resource rents arise largely from the good luck of being situated on top of a hydrocarbon reservoir. The energy companies negotiate a deal through Indian Oil and Gas Canada, a division of the Department of Indian Affairs, explore the reserve, build pipeline connectors, pump out the oil and gas, and pay royalties. For most people in the community, the net effect is the same as an increase in the fiscal transfer from Ottawa because the money comes without having to work for it, although some residents may subsequently be employed in enterprises generated by the royalty cash flow.
This predominance of external, unearned funding reinforces the factional character of aboriginal politics. A useful perspective on this linkage comes from the research on so-called neopatrimonial or rentier states in the Third World, particularly the Middle East (Beblawi and Luciani, 1987; Brynen, 1992, 1995). The purest examples are the Gulf sheikhdoms, sustained almost entirely by oil revenues. Another relevant case is the Palestine Liberation Front, supported by a combination of grants from sympathetic Muslim states and foreign aid from the United Nations and Western powers. Some other Middle Eastern states have also had semi-rentier status, at least at certain times.
For example, foreign grants constituted between 25% and 55% of national government expenditures in Jordan in the late 1970s and early 1980s, though they subsequently fell off considerably (Brynen, 1992: 86). The rentier state exhibits a specific pattern of political economy. The government, as the principal recipient of external rents, redistributes them throughout the society by means of outright grants to citizens, contracts with privileged businesses, and state employment. "The whole economy is arranged as a hierarchy of layers of rentiers with the state or the government at the top of the pyramid, acting as the ultimate support of all other rentiers in the economy." The result is an allocation state, "an état providence, distributing favours and benefits to its population" (Beblawi and Luciani, 1987: 53). Neopatrimonial politics tend to be secretive, factional, and familistic. The point of political action is to get more favours from those in power. Concepts like democracy and the rule of law can hardly establish a foothold because subjects, not having to pay for the activities of government, do not see it as an emanation of themselves. The population tends to develop what Belabwi calls the rentier mentality: Reward -- income or wealth -- is not related to work and risk bearing, rather to chance or situation. For a rentier, reward becomes a windfall gain, an isolated fact, situational or accidental as against the conventional outlook where reward is integrated in a process as the end result of a long, systematic and organized production circuit. The contradiction between production and rentier ethics is, thus, glaring (ibid., 52). It does not take much imagination to perceive similarities with the political economy of Canadian aboriginal communities.
Many Indian spokesmen claim that immunity from taxation is a perpetual condition--an aboriginal right, or a treaty right, or, as Alan Pratt (1989: 49) says, "a fundamental component of the special relationship" between aboriginal peoples and the Crown. Canadian taxpayers are unlikely to accept this forever, and a few perceptive commentators have pointed out that self-taxation is an essential support of good government. Maslove and Dittburner (1994: 152) put it well: "there can be no effective representation without taxation." For its part, the Royal Commission on Aboriginal Peoples has recommended that members of self-governing aboriginal communities should pay taxes to their own governments, though not to the federal or provincial governments. Aboriginal governments should reimburse provincial governments directly for any services provided, thus avoiding the necessity of paying tax to the latter (RCAP, 1996: II, 292-293).
Any degree of aboriginal taxation should be encouraged as a step towards more open and accountable government at the community level. Nonetheless, all who have made a serious study of the fiscal aspects of self-government proposals agree with Maslove and Dittburner (1994: 146) that "for the most part, the sources of funding will remain the same under self-government arragements." This is as true of the Metis settlements as it is of Indian reserves (Pocklington, 1991: 133). That is, even with a maximum degree of self-funding through taxation, aboriginal governments will continue to depend chiefly on government transfers, supplemented by resource revenues and occasional land claims settlements. Thus the rentier aspects of aboriginal governments in Canada are unlikely to change very much in the foreseeable future. Indeed, the proposals now under discussion may well intensify the aboriginal rentier state. Advocates of self-government emphasize that as high a proportion as possible of fiscal transfers should take the form of unconditional grants (Maslove and Dittburner, 1994). But over 80% of Indian Affairs transfers are already "devolved to Indian bands or tribal councils for self-administration" under several different funding frameworks. The Auditor General has complained about lack of accountability for expenditures, both to local aboriginal communities and to Parliament through the responsibility of the minister (Prince, 1994: 278-279). Further devolution might well make this lack of accountability worse rather than better.
None of the structural conditions described in this paper is likely to change in the foreseeable future. There is no shortage of visionary reform proposals, but there is a countervailing abundance of fiscal constraints and political veto points. Thus aboriginal communities will continue to be small, impoverished, and supported mainly by fiscal transfers. Almost all will be governed by elected chiefs and councils, trying to carry out an extraordinarily wide range of functions. The contest for advantage of extended kin groups will continue to be the motor of internal politics.
In this tableau, we must think realistically about what constitutes responsible public policy. Simply transferring more money and power to local aboriginal governments is likely to increase the abuses of familistic factionalism. More accountability in the management of public funds is urgently needed. Many small reforms might help move this system in this direction: more publication of information, better auditing, more open meetings, more systematic media coverage, development of a professional and political neutral aboriginal public service. It is encouraging that the Association of Indian Chiefs in Alberta, in the wake of many damaging stories from the Stoney Nation and other reserves, is currently trying to address some of these issues (Lowey, 1998). In March 1998, the Assembly of First Nations announced that it had signed an "accountability agreement" with the Certified General Accountants Association to improve training and standards of practice (Alberts, 1998).
Perhaps the single most constructive reform that could be made at this time would be for the members of aboriginal communities to begin taxing themselves in support of their own governments. No negotiations, no constitutional amendment, no legislation would be required to take this step; the power is already present in s. 83.(1) of the Indian Act. In most cases, the amount of money raised would be small, but the effect would be important. Aboriginal voters would have a greater stake in the doings of their own governments if these governments were spending their own voters' money. Out of this might grow greater political accountability at the local level. A related reform that might have similar effects would be to start charging realistic rents or user fees for housing and other amenities that band governments provide to residents.
I try to avoid ending my writings with a call for more research, but in this case such a plea is necessary. We know little about the government and politics of the more than 600 aboriginal communities. The literature is huge, but it leans heavily toward idealized reconstructions of the past and utopian projections of how sweeping reforms would work. We need to know much more about the real world of aboriginal politics.
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