Minister's decision angers two bands in Manitoba

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A Federal Court judge will hear arguments on April 29 that the minister of Indian Affairs is trampling on Section 35 of the Charter of Rights and Freedoms by using Section 74 of the Indian Act to impose a third party manager on Dakota Tipi First Nation.

Justice Douglas Campbell, who heard the Benoit Treaty 8 tax case in Alberta, will be the judge in Winnipeg. Lawyer Norman Boudreau, acting for Dakota Tipi First Nation Chief Dennis Pashe, will present the case.

Boudreau told Windspeaker he will seek to have an order that was issued in late March by Minister Robert Nault quashed and set aside as being beyond the minister's jurisdiction.

Boudreau will also claim Nault "failed to observe principles of natural justice and procedural fairness, based his decision on erroneous findings and acted in a perverse and capricious manner without regard to the facts."

Some members of Dakota Tipi, including the chief's sister and ex-wife, have been engaged in a bitter battle during the last several months, hoping to force Chief Pashe to call an election. After shots were fired and incidents of violence occurred in the community in January, Indian Affairs sources say Pashe was given 90 days to convince the government that he had broad community support for his leadership. When those 90 days brought no response from the chief, the minister made the decision to force the issue.

The decision to impose a third party manager and force an election at Dakota Tipi came just before the beginning of the Easter weekend.

Meanwhile in Buffalo Point, another First Nation community in Manitoba where the members have also being trying to force an election, there is shock and disbelief at the minister's decision. Several members say they see violence producing results at Dakota Tipi and wonder what message the minister is sending.

Buffalo Point members have been trying to force an election in their community for several years, but Chief John Thunder refuses to call one. Both groups are going to court and, by coincidence, Boudreau is a legal representative in both cases.

"My application in Buffalo Point is quite different than the issue with respect to Dakota Tipi," the Winnipeg lawyer said.

He is representing the dissidents at Buffalo Point in an action against the chief under the Manitoba Corporations Act. He is representing the Dakota Tipi chief in an action against the Indian Affairs minister.

Pashe alleges that the minister has violated the Aboriginal right of the Dakota Tipi First Nation to select its leadership according to its own custom- and that right is recognized and affirmed in Canada's Constitution.

"It's ironic that the minister who is spending millions of dollars to advertise himself as the champion of democracy for First Nations would have acted in such a dictatorial way," he said. "He has acted against the express wishes of the majority of the adult resident members of the reserve. Even his own Manitoba regional office was unaware Nault was coming down with a sledgehammer. He's brought us under the Indian Act, the very law he is telling Parliament is badly out of date because of its colonial origins."

The Dakota Tipi First Nation has 141 adult members, 55 on the reserve. Pashe claims 35 of the 55 have signed a petition supporting his administration.

Dakota Tipi is one of the smallest reserves in Canada-just 30 acres. The first Dakota Tipi reserve was purchased in the 1890s by the ancestors of the current inhabitants from their own earnings as farm workers in the Portage la Prairie area.

Then in the 1950s, to move the Dakota people out of the town of Portage, their urban lands were taken over by the government and they were moved to their current 30-acre location on the outskirts of town.

Manitoba Vice Chief Ken Young thinks Pashe has a legitimate argument.

"I support Dennis Pashe's argument. That community, since 1972, has opted to have band custom elections," Young said. "Dennis is not a hereditary chief as peple have said he is. The press have said that. He says I'm a band custom elected chief. There's no election as long as 51 per cent of the community has supported him being the chief, including the councillors that are there. That's the way they have always viewed their governance there. It's a consensus by 51 per cent of the people living on the community."

He believes the band has the right to limit its custom consensus leadership selection to on-reserve members even though the Supreme Court of Canada struck down the section of the Indian Act that prevents off-reserve members from voting.

"I also agree with him on the issue of the (Corbiere) decision that says off-reserve people must be given the opportunity to vote. I don't think the court said that's a carte blanche right. I believe that a community can put a limitation on a right to vote. Let's say in my community. My community can say, 'Mr. Young, yeah you can vote. We're not barring you from ever voting but you have to have residence here if you want to vote for chief and council.' That makes sense to me because I can't go into Regina and vote for the mayor there when I'm living in Winnipeg," he said.

Boudreau said the two communities have different ways of selecting their leadership and that fact is key to understanding both situations.

"In Dakota Tipi, the leadership is elected pursuant to custom. The custom is the consensus of the band members residing on the reserve who appoint their own leader. In Buffalo Point, the chieftainship is being passed from father to son. It's a true hereditary system. A custom system, but true hereditary," he explained.

Henry Boucher has been a vocal opponent of the John Thunder administration for several years. A Buffalo Point member who lives just across the Canada/U.S. border in Warroads, Minnesota, Boucher puts a lot of time into raising awareness of what he sees as a great injustice.

"There hasn't been an election-and Chief Thunder has not been elected, he was appoited by his dad-since 1941," he said.

Boucher said his people have refused to employ violence and they can't believe that violence at Dakota Tipi appears to have gotten the results there that they want.

"That's the thing about Dakota Tipi. They are mad. We are doing this in a peaceful manner and we always will. At Dakota Tipi, they burned places down, had road blocks, shots fired. We are doing this in a peaceful manner. It's our inherent right. Of all the people that are on the INAC list, 70 per cent-all the Indians out there-want a democratic election," he said. "I'm overwhelmed. I think democracy should rule. We live in a free society. It's like Canada is a Third World country, but they don't know it because of the racism and the discrimination against Indian people. It's appalling."

Ernest Cobiness said he was appointed the interim chief by the community last summer, although he has been fighting beside Boucher for many years.

"I don't know what it takes. For the last 30 years we've been fighting these people for an election and the last 10 years we've been trying to get an election and haven't had a minister that'll even look our way," he said.

Cobiness said demonstrations and peaceful sit-ins haven't stirred the minister to action.

"At Dakota Tipi, they've been trying less than a year and all of a sudden they've got third party pushed onto them for the funding and they've got an election. What does it take for us to do? At Dakota Tipi, I was talking to the chief and he said somebody shot up his house and there were burnings, basically Nault is trying to tell the public that it's OK to be violent to try and get things done."

Cobiness said 78 per cent of the band membership at Buffalo Point supports the call for an election.

"That's basically all the Indian people," he said.

He believes the department likes Thunder because he doesn't cause problems, whereas Pashe took part in the 1999 Pan Am Games protest in Winnipeg and challenged the provincial govrnment's jurisdiction by allowing unlicensed gaming in his community.

"You're either a good Indian or a bad Indian. You stay home and take orders and take your funding and be a nice little good Indian. That's what the government wants. They say I'm causing trouble while everything's supposed to be OK and then we're called the bad Indians because we stick up for our rights and our people," he said.

Indian Affairs spokesman Mike Murphy said the Buffalo Point people should not jump to the conclusion that violence is the answer. He says the two situations are quite different.

"Obviously we would not support violence under any circumstance," he said. "Our position on Buffalo Point is they've got an accountability framework in place there. The chief and council do hold office by unwritten custom. As a matter of policy, the department views this as an internal dispute and won't become actively involved in it unless both parties agree to give us a role."

Action was taken at Dakota Tipi, he said, because of "political instability."

While few examples of the minister using Section 74 of the Indian Act to impose a third party manager have been made public, creating the impression that it's a power the minister almost never uses, Murphy said it's more common than most would think.

"Our policy is not to talk about those First Nations that are in third party management, not to identify them unless it's out there in the public, unless the First Nation has taken it upon themselves to make that identification. Ten to 15 per cent of First Nations who are in third party management are in that circumstance for reasons other than financial," he said, adding most "would fall largely under the heading of governance."

Terry Nelson has also taken an interest in the Buffalo Point situation. He is the only Canadian on the board of directors of American Indian Movement. He said the leaders in the United States are willing to go to Buffalo Point and help, but so far they're respecting th