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to set land aside for leasing and economic development without that land losing its reserve status. This was the first step in gaining more fiscal and political autonomy for First Nations.

      The First Nations Property Ownership Act would create the legal framework for individual members of First Nations to access capital through secure property rights. This legislation would make First Nations like small provinces or cities. Just as land belongs to the city of Quebec even though residents of the city can buy and sell it among themselves, so people in the Kamloops band would be able to have individual title to their land (to do with as they wish); at the same time, the land would be taxed and its public facilities would be maintained by the band.

      The First Nations Property Ownership Act could be a political and economic game-changer for Aboriginal Peoples. But to understand why, it’s necessary to know more about the history of First Nations in Canada, as well as the ways in which the Canadian “reserve system” is different from the U.S. reservation system.

      The Canadian and American systems have common origins in the Royal Proclamation of 1763. As Kathy Brock wrote in her contribution to Canada and the United States: Differences That Count, “Embedded in the [British] proclamation is an ambivalence that gave rise to two very different histories of Aboriginal governance in Canada and the United States. On the one hand, the proclamation recognized that Indian nations were independent and should be dealt with through treaties by central authorities. The document established the basis of treaty and reservation land systems, and provided a basis for current land claims. On the other hand, the proclamation confirmed that Indian tribes possessed a limited sovereignty and were subject to British rule. Thus, they were not seen as equal to European nations, and limits were imposed on their actions when practically possible.”⁴⁰

      Although Brock, a professor in the School of Policy Studies and Department of Political Studies at Queen’s University, argues that the U.S. government has largely allowed tribes to govern themselves – for better or for worse – as long as they stay within their reservation borders and live without any property rights – the Canadian policy has been characterized by micromanagement of tribal affairs. In addition to the forced assimilation carried out by the residential schooling programs (to be covered in chapter 4), which also existed in the United States, but to a much smaller extent, Brock says, “almost every conceivable facet of First Nation life and culture was subject to scrutiny and regulation by Indian Affairs officials.”⁴¹ Although Indian agents were largely absent from American reservations after the first decade of the 20th century, Indian agents (also known as superintendents) weren’t removed from Canadian reserves until 1975, and then it was because members of First Nations “occupied” these offices and kicked them out.

      Remarkably, the Canadian government even determines who is and who isn’t a member of a First Nation. If your bloodline is too diluted due to intermarriage, Ottawa will not regard you as Indian. (In America, as long as a person is claimed by an officially recognized tribe, he or she is treated as American Indian.)

      Ironically, the fact that so much power rests with the federal government means that significant policy changes have been much more forthcoming in Canada than in the United States. These shifts began in the 1960s, Brock explains to me, “as part of dialogue around the world about the importance of self-government.” In 1973, the Canadian Supreme Court recognized Aboriginal title to the land in Calder v. British Columbia.

      The landmark Calder case clarified matters only so much, though. Three of the justices claimed that Indian title to the land existed at one point but had been extinguished by virtue of the government’s exercise of control over the lands. Which is to say that since the Canadian government had been in charge of their lands for so long, Indians could no longer claim title. The other three justices said more evidence had to be presented to show that the title was extinguished.

      Even though the practical results of Calder were unclear, says Brock, “it proved to be a catalyst.” A lot of administrative arrangements were transferred to Indian bands. The opening up of oil and gas resources in western Canada brought many of these issues of economic independence to a head. In 1982, when the Canadian government “patriated” the constitution from Britain, it also adopted a charter of rights, which included a section on Aboriginal land and titles. Prior to this, the Canadian constitution was technically part of British law. This new stage of Canadian law provided an opportunity to alter and clarify the Canadian federal government’s relationship with First Nations.

      Starting in 1984, a series of court decisions advanced the claims and rights of First Nations. There were a number of talks between the prime minister, leaders of First Nations, and provincial leaders to try to define Aboriginal rights. Talks broke down in 1987, with no clear definition emerging, but as Brock tells me, “Aboriginals were established as the rightful leaders for the community.”

      Much of the impetus for these court decisions and political negotiations came from the province of British Columbia. In part, this was because so many British Columbian tribes never signed official treaties with the colonial British or French government, unlike tribes in the eastern parts of Canada. And so their relationship with the Canadian government was even more ambiguous than that of their peers to the east. With the wealth of natural resources up for grabs in British Columbia, the area was ripe for litigation.

      The only bands in British Columbia that did have agreements with the former British government were the groups on the southern part of Vancouver Island that had signed the Douglas Treaties. Between 1850 and 1864, Sir James Douglas served as representative of Hudson’s Bay Company and then as governor of Vancouver Island and British Columbia. He was primarily interested in maintaining a peaceable environment for trading and, as such, sought to purchase land from the First Nations in the area.

      Douglas seemed to recognize that Indians thought of the land as their own – not as belonging to everyone or to the gods or Nature, broadly speaking, as is often assumed. On March 25, 1861, Douglas wrote to the Duke of Newcastle, who was then secretary of state for the Canadian colonies, “praying for the aid of Her Majesty’s Government in extinguishing the Indian title to the public lands in this Colony.” He wanted money to pay the Indians for their land, arguing that the natives had “distinct ideas of property in land, and mutually recognize[d] their several exclusive rights in certain districts.”⁴² The First Nations varied in size, and some of them were effectively extended families, whereas others divided up their land among different families within the band. The point is this: even before Europeans arrived, the First Nations in the area had divided the land among themselves and didn’t think of it as collectively held or, alternatively, unowned.

      Douglas warned that failure to extinguish title and “the occupation of such portions of the Colony by white settlers, unless with the full consent of the proprietary tribes,” would be perceived “as national wrongs, engender feelings of irritation against the settlers, and endanger the peace of the country.” As the authors of a recent paper prepared for the Union of British Columbia Indian Chiefs explain, “Douglas estimated that it would cost 3,000 pounds sterling to extinguish title to the remaining settled districts of the Colony: He asked that the British Government extend a loan in the form of a grant to be repaid from the proceeds of consequent sale of public lands in the Colony.”⁴³

      The British government turned him down, and, as a result, most of the First Nations in British Columbia remained without treaties right up until recent times. A new treaty process was begun in 1993, under which tribes were supposed to give up their claims to certain land and occupy others in return for compensation. About a third of the tribes in British Columbia have begun the process, but not much progress has been made.⁴⁴

      And the future of such negotiations doesn’t look promising. According to Mark Milke, the author of a report for the Fraser Institute, a Canadian think tank, “After 15 years of negotiation with BC Indian bands at a cost of more than $1.1 billion, the province has only eight treaties that have either been passed, initialled or are in the final negotiating stage.”⁴⁵ The report is titled Incomplete, Illiberal, and Expensive: A Review of 15 Years of Treaty Negotiations in British Columbia and Proposals for Reform, and Milke notes that “government representatives have taken negotiating positions that will lead to never-ending

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