U.S. judge critical of Canada's Aboriginal policy

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An Oregon United States District Court judge ruled on Nov. 15 that Gustafsen Lake activist O.J. Pitawanakwat was participating in an uprising against the government of Canada that was of a political character, so, under the terms of the extradition treaty between Canada and the United States, he can?t be turned over to Canadian authorities.

Pitawanakwat and his fellow Ts?peten Defenders occupied ranch land near 100 Mile House in British Columbia in 1995 to hold a Sundance and refused to leave, saying the land had never been surrendered. They also refused to listen to First Nations leaders that urged them to end the occupation, saying those leaders were collaborating with the government by participating in a flawed process, designed by Canada, that refused to recognize Aboriginal title to the land. The standoff lasted more than two months and resulted in several exchanges of gunfire.

Judge Magistrate Janice Stewart needed 30 pages to make her ruling. She cited many extradition cases ? from the U.S. and other countries ? as she considered Pitawanakwat?s claim that his offenses were non-extraditable because he was a political activist.

Unless Canadian authorities seek to have the decision overturned, Pitawanakwat won?t be extradited back to Canada to serve the remaining 702 days of the three-year sentence. He was convicted in 1997 on one count of mischief causing actual danger to life and one count of possession of a weapon for a purpose dangerous to the public peace. Shortly after he was released on parole early this year, Pitawanakwat left Canada without permission. Canadian Justice authorities filed a complaint with U.S. authorities that led to his arrest in Oregon on June 20. The hearing was held on Oct. 18.

United States law reflects the country?s own history of being founded by a revolution against an oppressive foreign power by showing an amount of respect for those who commit crimes as they participate in a political revolt. That attitude is preserved in the section of the Canada/United States extradition treaty that Pitawanakwat relied upon in his successful arguments before Judge Stewart.

Anthony Hall, professor of Native American Studies at the University of Lethbridge, submitted a report to the court that was referred to in the judgment. Hall has written extensively about the Gustafsen Lake conflict, criticizing the actions of the government and, especially, the RCMP. He is also a supporter of Bruce Clark, the controversial (now disbarred by the Law Society of Ontario) lawyer who acted for the Ts?peten Defenders during the 1995 conflict in the British Columbia Interior. Clark has argued repeatedly that British colonial law (affirmed in the Canadian Constitution in 1982) requires Canadian officials to submit to an impartial third party tribunal when they disagree with Indigenous nations. Since Canada insists for political reasons that treaties, seen by Indigenous leaders as nation-to-nation agreements, are only internal domestic agreements, Clark found little sympathy for that point of view in Canadian courts but, Hall said, the U.S. decision vindicates him.

In the decision, Judge Stewart took note of Clark?s position and did not dispute the legal reasoning behind it, but it did not directly figure in her reasons for making her decision. But Hall noted that, whereas Clark and the Ts?peten Defenders had no luck in arguing their position in Canada, outside Canada, they?re one for one.

?This was as close as we were going to get to third party adjudication, under the circumstances,? Hall told Windspeaker on Dec. 18. ?Here was an official who got to look at the case and look at the evidence on its merits and hadn?t been twisted by barrages of disinformation and smear.?

Information in Hall?s report to the court helped shape Stewart?s decision as she struggled to determine if Pitawanakwat qualified for the political uprising protection against extradition. The judge noted that both the RCMand the army were involved in a violent confrontation against rebels who sought to re-assert Indigenous jurisdiction over unceded land. That became a key element in the decision.

The tactics used during the dispute by the RCMP and the military also helped convince the judge that the level of violence required to elevate Pitawanakwat?s actions from an extraditable non-political criminal offense to a non-extraditable political act was present and was supplied by Canadian authorities.

?The seriousness of the challenge to Canadian jurisdiction over unceded tribal lands is evidenced by the fact that large military forces were deemed necessary to suppress the challenge,? the judge wrote. ?In fact, defendant claims, and the government has not disputed, that the Lake Gustafsen (sic) standoff escalated into the largest Canadian police or military operation on land since the Korean War. In addition, the defendant has submitted uncontradicted evidence that the Canadian government engaged in a smear and disinformation campaign to prevent the media from learning and publicizing the true extent and political nature of the events.?

Hall, who has put a lot of effort into exposing those tactics in opinion pieces in Vancouver newspapers and complaints to the CBC Ombudsman about the way CBC reporters were manipulated by the RCMP, said he was relieved to see the American judge saw the RCMP actions as significant.

?Here is a ruling in the U.S. courts finding Canadian authorities guilty of disinformation and smear, pointing out 77,000 rounds of bullets, pointing out land mines, going into great detail about Camp Zulu and Operation Wallaby (code word for army involvement), and still there doesn?t seem to be any pressure on the responsible authorities in Canada to give any explanation, and they get a pass from the media to do it. I can?t, for the life of me, think that there?s any other explanation for this other than the perception is still that the only victims to this are magnal Indian people and they don?t count,? Hall said. ?They?re essentially human beings whose rights are expendable and nobody has to answer for those violations.

?But, of course, that?s a misperception because what?s really being brought out here is a systemic and pervasive violation of the rule of law. And Clark always says, in the final analysis, it?s not really an Aboriginal issue, it?s a rule of law issue and once you sacrifice the rule of law in one area, you?ve discredited the whole operation and that undermines everybody?s rights and security in society and it transforms the society into a tyranny.?

Hall interprets the fact that the judge was not swayed by First Nation leaders who opposed the actions of the Ts?peten Defenders as very important. Stewart took note of the fact that the Canoe Creek band council disassociated themselves from the Ts?peten Defenders, but also noted that several other First Nation groups ? the Union of British Columbia Indian Chiefs and the Kahnawake Mohawks were mentioned in the decision ? supported them.

Hall said the judge refused to buy into what he called a common tactic that?s used to discredit traditional Native people who oppose Indian Act councils.

?All of these episodes involves a group pointing at the surrounding chiefs and saying ?they?re collaborating? and every time the police point at these guys and say, ?Look, even the local, legitimate chiefs don?t acknowledge them and therefore they?re not legitimate,? and they keep replaying this script and the media keeps buying it again and again. She obviously just cut right through that. To this day the mainstream media haven?t been able to deal with that issue,? he said.

Stewart also noted that Gustafsen Lake wasn?t the only point of conflict that summer, mentioning, among others, the Ipperwash Provincial Park clash where Native activist Dudley George was killed by a police officer. She reasoned that the other insurrections negated government arguments that theGutafsen Lake conflict didn?t qualify as a political uprising. She also noted that the Nisga?a treaty negotiations were concluded shortly after the conflict concluded, suggesting that might not have happened if pressure hadn?t been applied at Gustafsen Lake and that the creation of the British Columbia Treaty Commission process was prompted by the conflict.

Another powerful element of the decision, for Indigenous sovereignty activists, is the distinction the judge made between ?mere land disputes,? or protests against government policies similar to the sit-ins conducted during the 1970s in the United States as protests against the war in Vietnam, and the Gustafsen Lake conflict.

?Those protests were not aimed at abolishing the United States government or altering citizens? political relationship with the government, but at changing its foreign policy. Here, in contrast, defendant and the Ts?peten Defenders were attempting to alter their political relationship with the Canadian government by regaining the right of self government over their own lands,? she wrote.

The judge also mentioned that the defendants were not allowed to raise as a defense at trial that they believed they were acting to protect their rights and therefore had no criminal intent. Stewart even said that had they been allowed to make that argument they probably would not have been convicted. The judge then went on to note that she had not been able to determine why Leonard Peltier was not allowed to raise the same argument that worked for Pitawanakwat.

?She criticizes (the trial judge) at the end for not allowing the color of rights argument and it seems to me, it?s a pretty severe criticism of Canadian authorities in the Peltier case,? Hall said. ?I hadn?t been aware, but apparently Peltier himself sought to invoke this provision and she said that the minister of Justice denied him that.?