What is fairness in membership policy?

To:ske - It's true

Page 5

Last month I wrote how Canada is attempting to solve its 'Indian problem' by forcing our communities to adopt policies which, in the long run, will lead to a meaningless notion of being 'Aboriginal' replacing all of our collective national and traditional identities. In the column, I pointed to what many of us see as an insidious tactic used by those who want to see our people assimilated into a Canadian identity - one with no meaningful relation to our own political traditions and cultural heritage. This tactic is called 'self-identification': the idea that one can simply choose an Indigenous identity with no necessary validation of that choice by a community. I believe this is wrong and that it must be confronted if we are to survive as Indigenous nations.

The only way for Indian communities to resist Canada's efforts to further assimilate our people is to draw membership boundaries between our people and others. This is a political fact. No nation can survive without determining for itself what the criteria are for determining who is and who is not a member. This is the essence of what we say we are striving for in 'self-determination.' But many white liberals and even some of our own people criticize those communities that demonstrate the courage and strength to act on this responsibility to protect our nations from extinction through assimilation. People and organizations that take a strong position against 'self-identification' are often seen to be acting harshly or treating those who are denied membership in an unfair manner. Never mind the fact that among Indigenous people and organizations in the United States, it is common practice to require demonstrated proof of community membership before being considered Indian. In Canada, we seem to let anyone and their dog call themselves 'Aboriginal' and give whomever full consideration as one of us!

Some think it would be unfair to do otherwise. But is it really unfair to deny someone membership in an Indian community? When commenting on this issue, lawmakers, politicians and journalists often make the mistaken assumption that to deny self-identifiers, or people who have some Indian blood, membership in an Indian community is unfair. I pointed out last month just how deeply racist this assumption is when considered for what it says to us: a person is Indian strictly based on race. But there is another flaw to this position, and to all the arguments that attack efforts to limit membership in our communities to those who we ourselves define as members; that is, the membership laws enacted by communities meet the criteria for 'fairness' even though they exclude some people.

Our own cultural traditions are clear on this question, but today we are forced to justify our actions in terms of Canada's notion of what is right and wrong. It's not my usual style, but just this once I'll frame my argument to suit the 'Aboriginal Canadians' among us and speak in terms of Canadian law and the white man's mindset. This is just to show that it is Canada's policies and arguments that are wrong; and no matter how you think about it, we are still morally right in our actions to defend ourselves from assimilation. Please excuse this temporary lapse into a colonial mentality.

In Western legal and political theory, there are two fundamental criteria for determining whether something is fair or not: consent, and the right of exit. The first, consent, means that people affected by a decision must be consulted and their agreement ensured through a democratic process. Realizing that there are exceptions to this and that there are undemocratic Indian governments out there (I am not defending unjust regimes or corrupt practices), our traditional processes for determining membership satisfy this criterion to a much greater degree than any other government system. Our processes have a high degree of direct participation and rely on consensus as a model of decision-makin. Whether one agrees with the outcome of a decision on membership or not, it can rarely be argued that the community as a whole did not agree with the decision. This is why the opponents of community control over membership rarely use the political process within the community, and most often resort to external processes and laws to try to force the community to go against its decision - and in doing so they betray the basic principle of democracy.

The second point, right of exit, is often ignored in our own arguments. It means simply that people are not bound to accept the implications of a decision they disagree with. Our membership policies are not formed and do not operate in a political and social vacuum. There is a larger social, political and legal environment. The fact is that individuals who disagree or who have their self-identified rights denied by a community still have the right to exit the community and take advantage of the whole set of 'Aboriginal' rights defined in Canadian law, and to full Canadian citizenship. Thus, a denial of membership in a community does not, as it is argued by some, constitute a violation of human rights. Simply stated, there is a whole world that exists outside of our communities, people who are denied membership in our communities still have their status and their citizenship, and are free to enjoy those rights.

So the only potential injustice that does exist on this issue is in the denial of community membership itself - even with the criteria for fairness satisfied, some people could argue unfairness under the Canadian Charter of Human Rights and Freedoms, because of the real effects they claim to suffer from being denied membership in the community. This may seem like a contest between individual and collective rights that is impossible to resolve. But in Canadian law, the collective rights doctrine in both the Charter and as expanded in practice in Quebec's protection of the French language and culture, provide a way o determining whether the denial of membership is fair or not. Limitations on individual freedoms (such as claims to membership) are justified because our collective identities are still threatened by social and political forces in Canada. Those forces are strongly allied against the resurgence of solidarity and self-determination by our nations. The decisions our nations make on membership are prime acts of self-determination. Thus, for those of us who are concerned with Indigenous survival, rejecting 'self-identification' is an act of resistance that is far beyond fair. It is crucial.