Blackfoot Sovereignty Paper, Part II

Jim Craven jcraven at SPAMclark.edu
Wed Jun 27 11:42:10 MDT 2001


[ part II ]

Procedural Infirmity

Additional controversy surrounds the procedural validity of the
treaty.  The First Nation signatories did not actually sign the
document.  Because the leaders who are purported to have agreed to the
treaty's terms could not speak English, much less sign their English
names, government officials marked an "X" for each person whose name
appears on the treaty document.  After having his X marked for him,
each leader was to "touch the pen" with which the X was written,
symbolizing his assent to the terms of the treaty.  At least one
manifestation of this symbolic process was not completed, however:
"Crowfoot never touched the pen with which he was to sign the treaty
and . . . therefore, technically the treaty remains unsigned by the
First Nations of Treaty 7."82 Especially when considered in light of
the interpretive inaccuracies, conceptual inconsistencies, duplicity
and intimidation tactics, this procedural dereliction calls into
serious question the legal validity of Treaty 7.

Perhaps the most opprobrious and incriminating deficiency connected
with Treaty 7 was admitted by Prime Minister MacDonald, in a letter he
wrote to Lieutenant-Governor Edgar Dewdney in 1883.  The
correspondence reads as follows:


        My Dear Dewdney,

        Vankoughnet has sent you back your Blackfoot Treaties in order
        to get them verified under the Act.  The provision is not a
        new one as Mr. Laird supposes.

        It is to be found in the Act of 1876.  The original treaties
        of surrender with the Indians are with the Nations & can
        therefore be dealt with by the Chiefs.

        But when a specific Indian Reserve has been established, each
        member of the band has a legal interest in the Reserve, a
        title in fact, of which he cannot be deprived without assent.

        You had better take Mc[l]eod with you.  He can administer the
        affidavits as Stipendiary Magistrate - tho' he was a
        comm[issione]r.  The assent of the majority present is only
        required, and if they were aware of the Terms of the Treaty, &
        did not dissent, it may be held & properly held to be, a
        unanimous decision.83


The admission by the Prime Minister of Canada that no single member
could be deprived of his land without consent, but that only a
majority needed to assent since silence indicated agreement,
illustrates the use of fraud in procuring Blackfoot cooperation in
making the treaty.  It is clear that the Blackfoot were not "aware of
the Terms of the Treaty," as it is also clear that they did not
dissent because they were misinformed, cajoled and intimidated.  Thus,
Treaty 7 is invalid, and the taking and subsequent occupation of the
Blackfoot land referred to in the treaty have no legal basis.

Notwithstanding the controversies surrounding the making of the treaty
and its text, the Canadian government has not dealt seriously with
these issues.  "[A]reas of the treaty that are clearly problematic
have been glossed over and the discourse of those who hold power has
allowed authors to ignore difficult issues."84 This policy appears
contrary to the fiduciary obligation owed to First Nations.  "The
Crown was left with legally enforceable fiduciary duties: '[f]ailure
of the Crown to perform the obligations would cause the jurisdictional
interests over the land to revert to the First Nations.'"85

Canons of Treaty Construction

Even if one could argue successfully that Treaty 7 is not invalid,
Canadian law itself imposes on the Canadian government an obligation
to construe such treaties as the First Nations understood them.86 It
is no longer acceptable to rely on the plain meaning of the terms used
in the treaty document for controlling interpretation.87 Therefore,
the terms of Treaty 7 do not control current interpretations.  What
the Blackfoot and other Treaty 7 leaders understood as the treaty's
terms controls how the document is to be interpreted.  Because the
Blackfoot construed Treaty 7 as a peace agreement, whereby they were
to receive certain compensations in exchange for sharing their land
with the newcomers, that is all to which they agreed, and that is all
to which the Canadian government is lawfully entitled to receive.  The
Canadian government, however, has appropriated vast tracts of
Blackfoot land, and has usurped the inherent sovereign right of
Blackfoot to govern themselves.  The Blackfoot never knowingly,
voluntarily or lawfully relinquished these lands or their
self-governing prerogatives.  The Canadian courts and administration
violate Canada's own rules of treaty construction when Treaty 7 is
interpreted in a contrary manner.  Relations between the Blackfoot
Nation and the Canadian government are based on the terms of Treaty 7
as interpreted in violation of Canada's canons of treaty construction,
and governed by imposition of the Indian Act,

The Indian Act

"[G]overnmental action taken 'for the good of the Indians,'
effectively abolished Indian religion, culture and lifestyle."88

The Chief Justice of Canada's Supreme Court has acknowledged the real
threat to Aboriginal interests by governmental intrusion into their
affairs:

Our history has shown, unfortunately all too well, that Canada's
aboriginal peoples are justified in worrying about government
objectives that may be superficially neutral but which constitute de
facto threats to the existence of the aboriginal rights and
interests.89

The terms of the Indian Act infringe on the Blackfoot Nation's right
to determine its internal affairs and thus its right to
self-determination.  The paternalistic provisions strip the power to
govern from the Nation and place that power in the hands of the Crown
or the Minister of Indian Affairs.90 Without some of its provisions,
however, all Native peoples under its jurisdiction would suffer.  It
typifies the proverbial double-edged sword.  The Indian Act is a
symbolic manifestation of the conflicting objectives of Aboriginal
policy.  The act and the policy it codifies recognize the
distinctiveness and inherent rights of Aboriginal peoples vis à vis
the colonizing government on the one hand, but oppress them by
imposing foreign law on the other. The policy that purports to
"protect" Aboriginal peoples while at the same time creating a source
of power from which they need protection imposes unjustifiable
restrictions on the peoples' rights to self-determination recognized
by both Canadian and international law.  While some of the Indian Act
provisions may not apply to all First Nations,91 the existence of the
act itself interferes with the exercise of self-determination.
Section 18(1) of the Indian Act provides as follows:

Subject to this Act, reserves are held by Her Majesty for the use and
benefit of the respective bands for which they were set apart, and
subject to this Act and to the terms of any treaty or surrender, the
Governor in Council may determine whether any purpose for which land
in a reserve are used or are to be used is for the use and benefit of
the band.92

This provision may provide protection with one hand, but with the
other it takes away the inherent right of the Blackfoot to make their
own determinations regarding how their own land and internal relations
will be governed.

A Nation cannot exercise self-determination when an ostensibly higher
power enjoys the discretion to repudiate that Nation's law.  The act
also provides for the manner in which First Nations will select their
band councils.93 When a First Nation chooses to employ customary
governance structures, the Minister still may step in and impose his
or her will on the Nation.  If, for instance, any by-law passed by the
band council, whether elected under Indian Act provisions or by
"custom," is inconsistent with the Minister's views, he may disallow
the by-law under s. 82(2).  This system is wholly inadequate for the
Blackfoot to manage its internal affairs, and it is disruptive to the
Reserve community.

The abuses suffered by the Blackfoot Nation at the hands of the Band
Council exemplify the practical realities stemming from application of
these provisions.  Evidence is available suggesting the current
members of the Band Council engage in bribery and fraud to procure
their political positions, and once in office, there is evidence of
misappropriation of Blackfoot funds.  There is also evidence that the
Band Council and the Royal Canadian Mounted Police act in concert to
maintain the Council's current personnel.  It has been discovered that
members of the Council gave "gifts" to their friends and relatives in
order to receive favorable votes in upcoming elections.94 When others
attempted to compete against the incumbent councillors, the ballots
were not kept secret, and several ballots supporting the new
opposition were designated "spoiled," while the R.C.M.P. watched over
the process.95 A member of the Blackfoot Nation has indicated that
since 1921, the Blackfoot people have received zero dollars from land
and resource leasing by the Council to outside corporations.  When
individual members of the Nation are to receive one-half, they receive
none.  At the same time, however, the Council seems to have access to
unlimited funds for expenses to attend "meetings," where no business
is accomplished.96 If the Minister has the paternalistic power to
oversee and preempt the internal governmental matters of the First
Nations, why has this power not been effectuated to remedy these
abuses?


III.  LEGAL ISSUES

In 1996, the Royal Commission on Aboriginal Peoples issued a report
containing the following statement: "'Canadians need to understand
that Aboriginal peoples are nations . . . To this day, Aboriginal
people's sense of confidence and well-being as individuals remains
tied to the strength of their nations.  Only as members of restored
nations can they reach their potential in the twenty-first
century.'"97 Given that this report was commissioned by the Canadian
government, it seems curious that the government refuses to heed its
observations.  Instead, the "government has insisted on dominating
governance and land rights of First Nations, severely limiting First
Nations' rights and abilities to self-government."98 The honor of the
Canadian government and the Crown itself could be at stake if
recognition of these principles does not occur.

Although the Canadian government would argue that a right to
self-determination does not directly translate into an unlimited right
to sovereignty for the Blackfoot Nation, legal authority supports the
exercise of sovereignty by the Blackfoot. Where the sentiment of
nationality exists in any force, there is a prima facie case for
uniting all the members of the nationality under the same government,
and a government to themselves apart. This is merely saying that the
question of government ought to be decided by the governed. One hardly
knows what any division of the human race should be free to do, if not
to determine with which of the various collective bodies of human
beings they choose to associate themselves.99

The Blackfoot Nation is not required to ask permission from the
Canadian government to declare its independence, because their right
to self-determination as a people, under the provisions of the United
Nations Charter, allows them to exercise that right notwithstanding
the views of the colonizing nation.  Because the Blackfoot territory
is illegally occupied by the Royal Canadian Mounted Police, however,
it is incumbent upon the Canadian government to recognize the right to
proclaim independence and remove the illegal occupiers presently.

Characteristics of a State

The inherent powers of Indian self-government include, among others,
the power to determine the Nation's form of government, the power to
define conditions for membership, and the power to regulate domestic
relations between members, but the Indian Act denies these claims.100
"[T]he Crown officers utilized the traditional government only for
land surrenders and treaties, and otherwise deprived that traditional
government of any powers of management or control."101

Although Canada is not a State Party to the Convention on the Rights
and Duties of States adopted by the Seventh International Conference
of American States,102 the guidelines provided therein illustrate that
the Blackfoot Nation exhibits the four characteristics of a "state as
a person under international law . . . : (a) a permanent population;
(b) a defined territory; (c) government; and (d) capacity to enter
into relations with other states."103 As mentioned above, the
Blackfoot peoples have existed since time immemorial.  They have not
allowed themselves to be assimilated into the larger Canadian society,
even though the assimilationist agenda of the Canadian government has
been imposed upon them from the beginning of relations between the two
peoples.

The Reserves themselves are testimony to the existence of a defined
territory.  Additional lands illegally acquired by the Canadian
government are included in this territory.  Blackfoot government is
illustrated by the organization of "chiefs" who entered into treaty
negotiations with the treaty commissioners.  Historical forms of
self-governance continue, through recognition of and participating in
traditional societies, such as the Brave Dog Society.  Furthermore,
although the Indian Act places restrictions on the exercise by First
Nations of many self-governing powers, a declaration of independence
would not issue without some form of organized governance.  Finally,
the capacity to enter into relations is illustrated by the many
treaties the Blackfoot formed before Treaty 7.

Reference Re Secession of Quebec

In Reference Re Secession of Quebec104 the Supreme Court of Canada
interpreted international law in a manner entirely consistent with the
Blackfoot Nation's declaration of independence and right to
sovereignty.  One of the central questions answered by the Supreme
Court involved whether the National Assembly, legislature or
government of Quebec had the right, under international law, to secede
unilaterally from Canada.  Although the Court answered in the
negative, the facts presented in Reference re Secession of Quebec are
distinguishable from the facts involved in the Blackfoot Nation's
decision to declare its independence from Canada, and the legal
analyses support that declaration.

Although the Court found that "[i]t is clear that international law
does not specifically grant component parts of sovereign states the
legal right to secede unilaterally from their 'parent' state,"105 the
Court stated that the legal right would be conferred on peoples in
certain circumstances not present in that case.  The Court analyzed
alternative propositions offered in support of Quebec's right to
secede: absence of a specific prohibition on unilateral secession
implied permission; and the duty of states to recognize secession as
part of the exercise of the right of peoples to self-determination.106
In reference to the first proposition, the Court observed that
international law neither expressly grants nor denies a right to
unilateral secession, but that "international law places great
importance on the territorial integrity of nation states and, by and
large, leaves the creation of a new state to be determined by the
domestic law of the existing state of which the seceding entity
presently forms a part."107 Because the Blackfoot at no time consented
to become part of the Canadian state, and because the Blackfoot
inhabited the territory that was eventually, illegally subsumed within
that state, their sovereign rights are both pre- and
extra-constitutional.  Furthermore, the Court added that the second
proposition involving the right of peoples to self-determination would
not necessarily implicate the Constitution and other domestic laws of
Canada.

"While international law generally regulates the conduct of nation
states, it does, in some specific circumstances, also recognize the
'rights' of entities other than nation states -- such as the right of
a people to self-determination."108 The Court cited several
international documents that specifically recognize the right of
peoples to self-determination.  "The existence of the right of a
people to self-determination is now so widely recognized in
international conventions that the principle has acquired a status
beyond 'convention' and is considered a general principle of
international law."109 The documents codifying the recognition of this
right primarily include the Charter of the United Nations,110 the
United Nations International Covenant on Civil and Political Rights
(ICCPR),111 and the International Covenant on Economic, Social and
Cultural Rights (ICESCR).112

Article 1 of the Charter of the United Nations, Can. T.S. 1945 No. 7,
states in part that one of the purposes of the United Nations (U.N.)
is:

Article 1
. . . . .
2. To develop friendly relations among nations based on respect for
the principle of equal rights and self-determination of peoples, and
to take other appropriate measures to strengthen universal peace[.]

Article 55 of the U.N. Charter further states that the U.N. shall
promote goals such as higher standards of living, full employment and
human rights "[w]ith a view to the creation of conditions of stability
and well- being which are necessary for peaceful and friendly
relations among nations based on respect for the principle of equal
rights and self-determination of peoples".113


Article 1 of both the ICCPR and the ICESCR provide that "'[a]ll
peoples have the right of self-determination. By virtue of that right
they freely determine their political status and freely pursue their
economic, social and cultural development.'"114 The Court also cited
the United Nations General Assembly's Declaration on Principles of
International Law Concerning Friendly Relations and Co-operation Among
States in Accordance with the Charter of the United Nations, which
states,

By virtue of the principle of equal rights and self-determination of
peoples enshrined in the Charter of the United Nations, all peoples
have the right freely to determine, without external interference,
their political status and to pursue their economic, social and
cultural development, and every State has the duty to respect this
right in accordance with the provisions of the Charter.115


Thus, under these international law provisions, the Blackfoot peoples
possess the right to determine their political status without
interference from the Canadian government.  They have determined their
political status as an independent, sovereign nation, and every
nation, including Canada, has an obligation to honor this exercise of
the Blackfoot Nation's internationally recognized right.  The Canadian
Supreme Court cited additional international legal authority that
would support the sovereign right of the Blackfoot peoples to declare
their independence from their colonizers.  Under the General
Assembly's Declaration on the Occasion of the Fiftieth Anniversary of
the United Nations, "the U.N.'s member states will . . . reaffirm the
right of self-determination of all peoples, taking into account the
particular situation of peoples under colonial or other forms of alien
domination or foreign occupation, and recognize the right of peoples
to take legitimate action . . . to realize their inalienable right of
self-determination."116 Under the circumstances created by the
Canadian government through its illegal occupation of Blackfoot
territory and imposition of the Indian Act, the only action available
to the Blackfoot Nation for realization of their right to
self-determination is that which has been executed, a declaration of
independence.

Although this provision ensures that the territorial integrity of
independently sovereign states will not be disturbed by application of
its terms, that reservation only applies when the state complies "with
the principle of equal rights and self-determination of peoples and
thus possessed of a Government representing the whole people belonging
to the territory without distinction of any kind. . . ."117 In the
case of the Blackfoot, Canada has not complied with the principles of
equal rights and self-determination, and the Canadian government does
not represent the Blackfoot people in any meaningful way.  The illegal
occupation of Blackfoot territory, improperly justified by the invalid
terms of Treaty 7, and imposition of the Indian Act evidence
noncompliance with the principles of equality and self-determination.
Employment opportunities are scarce for Blackfoot individuals, on and
off the Reserve, even in a business conducted on Blackfoot land,
administered by employees of the Alberta government.118 Furthermore,
how many Blackfoot individuals are members of Parliament?  What is the
proportion of Blackfoot individuals to non-Aboriginal (i.e., white)
individuals employed by the Department of Indian Affairs and Northern
Development?

These circumstances do not provide the sole or even primary basis for
the Blackfoot Nation's assertion of sovereignty vis à vis the Canadian
government, however.  The territorial integrity of a state becomes
virtually irrelevant under certain circumstances.  As quoted above,
special consideration is given in cases of colonization, alien
domination and foreign occupation.  The Supreme Court of Canada
explicitly recognized a people's international legal right to secede
under these exceptional circumstances, when it is not possible for the
people's right to self-determination to be exercised "within the
framework of existing sovereign states and consistently with the
maintenance of the territorial integrity of those states."119 Thus,
under international law as interpreted by the Supreme Court of Canada
itself, the Blackfoot possess a right to secede from the Canadian
state, which they have exercised through the declaration of their
independence.

A threshold question in determining whether a group may exercise its
right to self-determination in this way and under these circumstances
is whether the group purporting to exercise the right constitutes "a
people."  The Court, while noting that the "precise meaning of the
term 'people' remains somewhat uncertain,"120 indicated that this
threshold question could be answered by determining whether the
population shares certain characteristics, such as a common language
and culture.  While the Treaty 7 Nations did use varied dialects, the
Blackfoot language is part of the Algonkian language group.121 Their
cultural histories are undeniably common, as discussed above in
reference to the making of Treaty 7.  Furthermore, they have
maintained aspects of their cultural traditions, such as their special
relationship with the land and natural resources,122 and internal
governance structures, such as the functioning of the Brave Dog
society, despite attempts by the Canadian government to destroy their
culture and assimilate their people into the dominant colonizing
society.  They continue to live in relatively self-contained social
arrangements on the reserves.  It is doubtful that any person or
tribunal would deny that the Blackfoot constitute a people in the
international legal sense of the term.

The next step in the Court's analysis described the scope of the right
to self-determination.  Internal and external versions of
self-determination were delineated.  The usual route to realizing
self-determination is through internal functions, which involve
political, economic, social and cultural pursuits within the existing
state's governmental infrastructure.123 The Indian Act represents a
most flagrant interference with internal self-determination.  When, as
here, internal self-determination is inadequate because the meaningful
exercise of the right is blocked, a right to external
self-determination materializes.  This right to external
self-determination would include unilateral secession.124 The position
of Quebec in this regard is distinguishable from that of the Blackfoot
because, as the Court observed, the Quebec people have not suffered
attacks on their physical existence, and they have enjoyed and
continue to enjoy considerable representation in the Canadian
government.125 "The population of Quebec is equitably represented in
legislative, executive and judicial institutions."126 The population
of the Blackfoot is not.

Again, recognition of this right is not intended to facilitate the
destruction of a state's territorial integrity, political independence
or domestic unity, but these entitlements are conditional.127 In the
case of the Blackfoot, Canada has never enjoyed a valid claim to the
Blackfoot's territory, because the Blackfoot never surrendered the
land; exercise of sovereignty by the Blackfoot Nation is irrelevant to
Canada's political independence; and Blackfoot secession would not
affect the unity of the Canadian state.  Lack of Blackfoot
participation in Canadian governance, and the relative detachment of
the Blackfoot from the whole of Canadian society suggest that the
unified Dominion is uninterested in whether the Blackfoot are unified
with the rest of Canadians or not.  Furthermore, the "maintenance of
the territorial integrity of existing states, including Canada" is
incompatible with "the right of [the Blackfoot] to achieve a full
measure of self-determination."128 Again, the illegal occupation of
Blackfoot land occasioned by the invalid Treaty 7, imposition of the
Indian Act and the lack of meaningful representation of the Blackfoot
in Canadian governance cause this incompatibility.

Additionally, the Supreme Court's analysis of colonial and oppressed
peoples presents an authoritative legal framework in which the
Blackfoot declaration of independence should be recognized.

[T]here are certain defined contexts within which the right to the
self-determination of peoples does allow that right to be exercised
"externally", which, in the context of this Reference, would
potentially mean secession:

"...the right to external self-determination, which entails the
possibility of choosing (or restoring) independence, has only been
bestowed upon two classes of peoples (those under colonial rule or
foreign occupation), based upon the assumption that both classes make
up entities that are inherently distinct from the colonialist Power
and the occupant Power and that their "territorial integrity', all but
destroyed by the colonialist or occupying Power, should be fully
restored[.]"129


Thus, according to the Supreme Court of Canada, the "right of colonial
peoples to exercise their right to self-determination by breaking away
from the 'imperial' power is now undisputed."130 In situations of
former colonies, the right to external self-determination includes the
right of a people to declare its independence from the colonial
power.131 Canada is but one former colony in North America, and the
Blackfoot were and continue to be "inherently distinct" from the
European-derived colonial powers.  Their territory was "all but
destroyed" by that colonial power, and it thus should be "fully
restored."

Additional Sources of International Legal Authority

Violations of international human rights law have been and continue to
be committed against the Blackfoot Nation by the Government of Canada.
It is within the context of these violations that the Blackfoot Nation
has declared its independence.  By the terms of the International
Covenant on Economic, Social and Cultural Rights,132 the International
Covenant on Civil and Political Rights,133 and the Resolution on
Permanent Sovereignty over Natural Resources,134 the actions of the
Governments of Canada and Alberta have violated the rights of the
Blackfoot Nation as recognized under the Universal Declaration of
Human Rights,135 to which Canada is a party.

The Universal Declaration of Human Rights provides, inter alia:

        Article 15.  (1) Everyone has the right to a nationality.  (2)
        No one shall be arbitrarily deprived of his nationality nor
        denied the right to change his nationality. . . .

        Article 17.  (1) Everyone has the right to own property alone
        as well as in association with others.  (2) No one shall be
        arbitrarily deprived of his property. . . .

        Article 23.  (1) Everyone has the right to work, to free
        choice of employment, to just and favourable conditions of
        work and to protection against unemployment. . . .

        Article 25.  (1) Everyone has the right to a standard of
        living adequate for the health and well-being of himself and
        of his family. . . .


The current state of affairs existing between the Blackfoot and the
Canadian government is contrary to these principles.  First, the
Blackfoot are effectively denied their nationality by their forced
integration into the Canadian governmental structure.  They have not
indicated a desire or consent to becoming part of the Canadian polity.
Second, the Blackfoot have been deprived of their property by
operation of Treaty 7, which is invalid and unenforceable.  Thus,
their territory is being occupied illegally.  Third, protection
against unemployment is virtually nonexistent for the Blackfoot:
"[w]elfare and a lack of employment on the reserves also continue as
major difficulties."136 Similarly, the standard of living for most
Blackfoot people is so low, one Blackfoot member indicated he could
not afford to purchase a shovel to straighten up his yard.  The same
Blackfoot member indicated he is physically able to work, but because
employment opportunities on his Reserve are not available to him, he
is forced to live off welfare checks of $229.00 per month.  His wife
currently receives a disability pension, but she would lose her
entitlement if he ever did secure employment and receive adequate
compensation.  He has tried to make a living on his own, but
certification is needed for the jobs for which he is qualified.
Certification requires the expenditure of money he does not have.137

These problems implicate additional sources of international legal
authority.  The International Covenant on Economic, Social and
Cultural Rights138 declares that states party to the Covenant,
including Canada, recognize the right to work.  Concomitant to this
recognition is the state's duty to take steps to safeguard this right,
including "technical and vocational guidance."139 The Covenant further
provides that all people have a right to an adequate standard of
living.140 The inability to afford a simple tool like a shovel does
not indicate an adequate standard of living.

This right to an adequate standard of living includes rights to
adequate housing and "the continuous improvement of living
conditions."  The man who could not afford a shovel encountered
similar problems when he needed to repair his tin roof.  Two pieces of
tin were blown off the roof, but he did not have the tools necessary
to make the repairs himself.  He contacted the Housing Department in
Brocket to ask for assistance.  A man visited his house, took a
picture of the damaged roof and left.  Six months passed, but the
Housing Department had done nothing to repair the roof, supply tools
or even contact the homeowner.  After the homeowner contacted the
Housing Department again, the employee returned and took more
photographs of the roof.  Three months later, four men arrived with a
scaffold to repair damage that had never required more than one man
and a ladder, which still cost more than the homeowner could afford.
Because these four men spent most of their time sitting and smoking
cigarettes, eight days passed before two pieces of tin were replaced
on the roof.

The International Covenant on Civil and Political Rights (ICCPR)141
binds the States Parties, including the Governments of Canada and
Alberta, to certain duties.

Article 9.  (1) Everyone has the right to liberty and security of
person.  No one shall be subjected to arbitrary arrest or
detention. . . . (2) Anyone who is arrested shall be informed, at the
time of arrest, of the reasons for his arrest and shall be promptly
informed of any charges against him.

Article 17.  (1) No one shall be subjected to arbitrary or unlawful
interference with his privacy, family, home or correspondence, nor to
unlawful attacks on his honour and reputation.  (2) Everyone has the
right to the protection of the law against such interference or
attacks.

There is evidence that the Royal Canadian Mounted Police have detained
persons in violation of these provisions.  For instance, an elderly
Blackfoot man was arrested and requested the services of an attorney.
He had not retained one, nor did he regularly employ the services of
an attorney.  Because he did not "have" a lawyer, the police told him
he had waived his right to an attorney.  The man, whose formal,
western education was limited, did not understand the concept of
waiver.  Nevertheless, the concept was not explained to him.  He was
told to sign a paper regarding this waiver, so he signed it.  Although
he did not understand what had transpired, partly because the process
was inaccurately explained to him, if explained at all, he never
received the assistance of an attorney.142 Recently, a young man was
stabbed to death on the Reserve.  The police arrested a suspect in
connection with the murder, this time a young citizen of the Blackfoot
Nation, but neither informed him of the charges against him nor
explained his rights.143

As discussed above, the practices of the Blackfoot Band Council have
been corrupted by imposition of the Indian Act, which
paternalistically regulates council elections and structure at the
same time it implicitly sanctions, by the Minister's inaction,
behavior that is inconsistent with the self-defined interests of the
Blackfoot Nation.  These circumstances violate the following provision
of the ICCPR.

Article 25.  Every citizen shall have the right and the opportunity,
without any of the distinctions mentioned in article 2 and without
unreasonable restrictions: (a) To take part in the conduct of public
affairs, directly or through freely chosen representatives; (b) To
vote and to be elected at genuine periodic elections which shall be by
universal and equal suffrage and shall be held by secret ballot,
guaranteeing the free expression of the will of the electors; (c) To
have access, on general terms of equality, to public service in his
country.

[ end Part II ]






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