Читать книгу The New Trail of Tears - Naomi Schaefer Riley - Страница 8

CHAPTER ONE

Someone Else’s Responsibility

Property Rights as Native Rights

“IT’S FREE MONEY!” a Crow legislator by the name of Karl Little Owl tells Ivan Small. Small, an older man who has known Little Owl since he was a child, laughs skeptically. “Really? How’s that?”

“We didn’t have to spend a dime of the tribe’s funds on this.”

“A good thing,” Small replies, chuckling, “since the tribe doesn’t have any money.”

We’re standing just outside a tent where a ceremony to mark the breaking of ground on Apsaalooke Warrior Apartments is about to begin. The first development project on the Crow reservation in about a decade, Apsaalooke Warrior Apartments will be a 15-bed veterans’ home perched on a hill overlooking Crow Agency, the reservation’s political center. A couple of miles from the battlefield where Custer made his last stand, the home will no doubt be a reminder of Indians’ Pyrrhic victory here in Montana and the fact that it was short-lived. Soon after the Battle of the Little Bighorn, the U.S. Army succeeded in removing the remaining Indians from their land and putting them on reservations. In recent times, the policies that resulted in the mass extinguishment of Indian lives have been replaced by policies that result in their mass impoverishment and an existence circumscribed by violence and tragedy.

Here, under the tent, though, there’s great celebration. Representatives of the Bureau of Indian Affairs, the state of Montana, and the tribal leadership are present. One person after another takes the podium to congratulate the individuals who spearheaded this development, applied for the grants, and waded through the bureaucratic morass (though no one dares call it that) to get this project off the ground. After about a dozen speeches, the four tribal leaders don feathered bonnets and sing a traditional song in their native language. Then each takes a golden shovel and turns over a piece of the soil.

At a cost of just under $8 million, the development wouldn’t have been possible without a combination of federal, state, and private donations. The Crow tribe is broke, as Small observes, for a variety of reasons. There’s next to no economic activity on the reservation. In this desolate area in southeastern Montana, the unemployment rate is 47 percent (when you include people who have given up looking for jobs).¹ The people who are employed almost all work for the tribal government.

And then there’s this: the tribe, according to its leadership, owes the Department of Housing and Urban Development about $3 million. In the 1990s, HUD built most of the homes on the reservation, and the tribal leadership promised to exact a small monthly payment from each homeowner. Conrad Stewart, who used to work in the tribal housing office and now chairs the Natural Resources Infrastructure Committee for the Crow tribe, says that the payments were to be between $20 and $30 a month.

But then the tribe members, among them people in Small’s own extended family, refused to pay. Instead, Stewart says, “When the tribe tried to go and recoup some of the money, they made threats. They said the tribe should pay for this. And the tribe has been paying for it [ever since].”

Now the situation is getting bleaker. HUD, the tribal leaders tell me, refuses to build any more homes until the money is paid back. And so no homes are being constructed or repaired. Instead more and more people are moving into each small trailer home. The result is that 75 percent of tribal members between the ages of 18 and 40 “don’t have homes,” according to Stewart.

Stewart blames part of this problem on the tribal government’s lack of forethought. “They were thinking about the short term, because a lot of times the administration – they campaigned and then they got that one year to do something. Well, the next year it’s campaign season again.” Tribal governance was no doubt an issue here. And the Crow tribe has taken steps to improve the situation. In 2001, it instituted four-year terms instead of two-year terms for the chair and other executive positions. “Now we have three years of business and one year of campaigning,” notes Stewart with forced optimism.

Even so, when the tribal government attempted to pass legislation that would require people to pay their debt to HUD, Stewart says, the “old-timers” were telling people, “You do this and then they’re going to take all our homes and then they’re going to kick everybody out on the streets. Everyone will be homeless.” Fourteen versions of the financial protection and procedures laws intended to address this situation were reviewed before one was passed. Says Stewart of this legislative ordeal: “These people would cut your throat.”

Of course, for anyone with a basic understanding of economics and political science, nothing in this story is surprising. If your political representative is also your landlord and you don’t feel like paying your rent, you’ll vote him out of office. But when you do that, it’ll affect both your own ability to get credit and others’ ability to convince someone to build them a home.

But what choice do Crows have? Almost no one on the reservation can afford to build a home, because no one can get a mortgage. And no one can get a mortgage because the property on the reservation is held “in trust” by the federal government and most of it’s “owned” communally by the tribe. Which means, effectively, that no bank could ever foreclose on a property, because the bank can’t own reservation land.

Even town centers on many Indian reservations are desolate places. Small says there are fewer shops now in Lame Deer, Montana, the capital of the Northern Cheyenne reservation, than there were when he was growing up. There’s a small casino – the size of a suburban house – just outside of town. Few non-Indians have a reason to come through Lame Deer, however, so the dozen or so customers at the casino are almost all Indians. These gamblers are effectively taking money given to them by the tribal government for food or housing and giving it back to the tribe through its slot machines.

And the leaders in Lame Deer don’t seem particularly interested in bringing more visitors to town. Winfield Russell, vice president of the Northern Cheyenne tribal council, complains to me about the 18-wheelers that use the town’s main road to avoid the interstates. But rather than a rest stop (which would bring the tribe some revenue), he shows me a design for a new traffic pattern that will discourage truckers from using the road at all.

Small and I spend three days driving around southeastern Montana together. The early May scenery is beautiful and yet somehow depressing as the occasional snow flurry falls. But every few miles, we come upon a group of 10 to 30 trailer homes that, as anyone can see, are a blight on the land. Broken-down cars and trucks are scattered outside the homes like crushed soda cans. Many homes’ windows are broken, with only a kind of tarp separating the residents from the elements. (Residents say they’re waiting for HUD to come fix things.) Children’s toys are piled up haphazardly, mixed with lawn chairs and trash. Menacing stray dogs roam everywhere, searching for food.

“A man’s home is his castle,” Small mutters over and over as we survey these neighborhoods. Sometimes he laughs. A big man, with darkened skin and a full head of white hair, Small sometimes seems angry. But mostly he looks tired.

As we drive through the Crow and Cheyenne reservations, Small points out the places he and his extended family have lived. He has spent most of his life here. His mother was Crow and his father was Northern Cheyenne. He grew up with his six siblings on a farm. Their house had no running water. He’s somewhat nostalgic, though: “At least, back then, there wasn’t so much crime.” Violent crime on the country’s 310 reservations is on average about 2.5 times as high as the national average.² Fueling the crime are alcohol and drugs – methamphetamines, especially. But Small thinks there’s too little law enforcement, both from the federal government and from the tribe itself.

Each morning I set out with Small, he stops in Lame Deer. The town contains a gas station, a half-stocked supermarket, a Catholic church, a school, and a coffee shop. On the first morning we arrive, the woman making Small his latte tells us that the shop was robbed the night before. The culprit stole all the candy in the glass display case, as well as five left flip-flops from a shelf full of gift items. “At least it won’t be hard to find him,” another customer jokes, imitating a man hobbling on one foot.

The same dark sense of humor pervades the conversation about the condition of the reservations, particularly among older residents. They’ve seen it all before, and they don’t expect anything to get better. Small, who owns some land and a few head of cattle, recently tried to buy land from a neighbor of his on the Crow reservation. The two had agreed on the price. But the Bureau of Indian Affairs blocked the deal. The BIA had recently had land on the reservation appraised as part of a buyback program – the federal government was going to trade one plot of land to the tribe for another – and the appraiser had put a higher value on the land than the price that Small and his neighbor had agreed upon. In fact, as Small tells it, the BIA told the appraiser to overvalue the land so as not to “screw the Indians.”

Small is past the point of anger, though, and he laughs. He’s no economist, but he’s well aware, as he tells me, “Land is worth what someone will pay for it,” not what some outside appraiser decides.

Similar stories could be told about jobs, health care, and land management on reservations. We’d like to think that stricter regulation or larger grants or other forms of government intervention or support would solve the many problems on reservations. But there are too many policies standing in the way of real improvements. It’s not only that the Bureau of Indian Affairs and the Bureau of Indian Education are perhaps the most inefficient of all federal bureaucracies. It’s not only that Washington officials are far removed from the people they serve – though 90 percent of the staff of these bureaucracies are Indians themselves.³ It’s that the BIA’s purpose is unclear.

How did we arrive at this sad state of affairs? Between 1777 and 1871, the federal government signed over 400 treaties with American Indians. In the 1850s, the reservation system was devised as a way of ending the Indian wars and moving Indians off of land that white settlers wanted for farming, ranching, or mining. Tribes agreed to give up the land they occupied and move to reservations in exchange for payments and other benefits. Often, of course, these promises weren’t kept.

Tribes often ended up far from their homelands. Not only were their new lands less desirable because they had fewer natural resources, American Indians had no idea how to live on them. But, in small ways, they began to adapt. This evolution in fact was already underway. In his book Sovereign Nations or Reservations? Terry Anderson notes, “Even before interaction with Europeans, Indian institutions were evolving as a result of changing resource values and technology. Perhaps as much as any other factor, the horse changed the lives of Indians. With the horse, transportation costs declined significantly as did the costs of harvesting buffalo. The result was that many otherwise sedentary tribes took to a more nomadic life.”⁴ In principle, there’s no reason that tribes couldn’t have adapted themselves again to a more sedentary life on the reservation, however unjust the reason they’d wound up there in the first place.

But tribal autonomy had been compromised. American Indian communities’ ability to subsist often depended on the federal administrators assigned to each tribe, who treated them like children assigned to their care. For example, Indians weren’t permitted to leave reservations in search of food; thus, many tribes needed outside shipments of food and other resources in order to survive. This meant that any small delay of appropriations from the federal government could lead to mass starvation or armed conflict.

Agents were supposed to supervise the relationship between Indians and white settlers – including any commercial activity – but by the late 19th century, their roles had shifted to include the forced assimilation of Indians into American culture. Agents oversaw the education (in English) of Indians, enforced a prohibition on alcohol, and ensured that “no Indian should be idle for want of an opportunity to labor or of instructions as to how to go to work, and, if farm work is not extensive enough to employ all idle hands, some other occupation should be introduced.”⁵

Of course, this relationship was understood mostly in racial terms. The late 19th and early 20th centuries saw a popular as well as an academic fascination with racial classification. New waves of immigration from Europe, the post–Civil War period of reconstruction, and the Indian wars out west made white Americans hugely interested in and receptive to all sorts of theories of racial differences. The application of Mendel’s genetic theories about dominant and recessive traits in plants to human beings launched a wrongheaded and dangerous foray into eugenics.

From the early 19th century, self-styled scientists had developed all sorts of theories about the inferiority of the Indian race. Samuel George Morton, a Philadelphia patrician who had two medical degrees, hypothesized that skull size was correlated with mental capacity. As a result of his phrenological studies, he concluded: “It must be borne in mind that the Indian is incapable of servitude, and that his spirit sunk at once in captivity, and with it his physical energy [whereas] the more pliant Negro, yielding to his fate and accommodating himself to his condition, bore his heavy burden with comparative ease.”⁶ One of Morton’s successors, Josiah Nott, wrote, “It is vain to talk of civilizing [Indians]. You might as well attempt to change the nature of the buffalo.”⁷

Those who didn’t see race as destiny, though, had plenty of theories of their own. Many Christian missionaries saw it as their duty to “civilize” American Indians, almost as soon as settlers made contact with Indians – in the 18th century, the founder of Dartmouth College told his sponsors he’d “cure the Natives of their Savage Temper” and “purge all the Indian out” of his Indian students.⁸ As Fergus Bordewich says in his book Killing the White Man’s Indian, “Education was seen by well-intentioned Americans both as a moral imperative and as a practical gateway to modern civilization. However their optimism was often rooted in the naïve conviction that Indians were but blank slates waiting to be inscribed with the vigorous script of American civilization.”⁹

Senator Henry Dawes of Massachusetts (who served from 1875 to 1893) wasn’t quite so insensitive, though, as Bordewich tells the story. In fact, Dawes considered the history of U.S.-Indian relations to be one “of spoliation, of wars, and of humiliation.”¹⁰ More importantly, he believed that Indians had the same capacity for education, independence, and economic success as their white brothers – if only the right policies were put in place.

Dawes proposed to take all the reservation land that was held in common, divide it up among Indians individually, and put the rest up for sale to white settlers. He told a group assembled at Lake Mohonk in upstate New York, “If you will prepare the Indian to take care of himself upon this land that is allotted, you will find the solution to the whole question. . . . He shall have a home and be a citizen of the United States; shall be one of us, contributing his share to all that goes to make up the strength and glory of citizenship in the United States.”¹¹ After he proposed this allotment, one of his colleagues told the assembly, “I have more than once spoken of Senator Dawes’s severalty bill as the act of emancipation for the Indian. I believe when it is passed it will enroll his name with that of Lincoln as an Emancipator of those in bonds.”¹²

In 1887, Congress passed the General Allotment Act, known as the Dawes Act, which surveyed Indian lands and divided them into parcels, allowing individual Indians to apply for ownership of plots of land (though many of these parcels weren’t actually given over completely). The head of a family could receive 160 acres. People under the age of 18 would receive 40 acres. Indians had four years to select the plot they wanted. After that, the secretary of the interior would select it for them. The federal government would hold the land “in trust” for the Indians, but after 25 years had elapsed, the Indians would own the land outright. Well, almost. According to the language of the Dawes Act, “At the expiration of said period the United States will convey the same by patent to said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever: Provided, That the President of the United States may in any case in his discretion extend the period.”¹³

There are interesting similarities to the “40 acres and a mule” policy implemented after the Civil War to give freed slaves rights to abandoned land previously owned by slaveholders. Of course, in that case, the land was rarely allotted, and there was no federal money to purchase it for former slaves either. But the connection between owning land and having full citizenship was a strong one. Dawes and his colleagues in Washington clearly believed that if Indians got the former, they’d be entitled to and embrace the responsibilities of the latter. Their confidence in Indians’ ability to take their fate into their own hands was striking – and it’s a sentiment rarely heard among politicians today.

The wording of the Dawes Act continued:

That upon the completion of said allotments and the patenting of the lands to said allottees, each and every number of the respective bands or tribes of Indians to whom allotments have been made shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside; and no Territory shall pass or enforce any law denying any such Indian within its jurisdiction the equal protection of the law. And every Indian born within the territorial limits of the United States to whom allotments shall have been made under the provisions of this act, or under any law or treaty, and every Indian born within the territorial limits of the United States who has voluntarily taken up, within said limits, his residence separate and apart from any tribe of Indians therein, and has adopted the habits of civilized life, is hereby declared to be a citizen of the United States, and is entitled to all the rights, privileges, and immunities of such citizens, whether said Indian has been or not, by birth or otherwise, a member of any tribe of Indians within the territorial limits of the United States without in any manner affecting the right of any such Indian to tribal or other property.¹⁴

The way the Dawes Act was carried out, though, was not as Dawes or his contemporaries had promised, nor were its effects what they had expected. In some cases, Indians who didn’t choose a parcel of land were jailed. Whites often got the best land and sometimes the only land that was adjacent to water sources. Some of the land had been surveyed badly, and so its ownership was unclear. By the time the policy ended in 1934, land under Indian ownership had shrunk by 65 percent.¹⁵

In 1934, the Indian Reorganization Act placed all the land not held fully by individuals into a “trust.” Sometimes known as the Indian New Deal, the Indian Reorganization Act was intended to stem the flow of land out of Indian hands. Land that hadn’t already been transferred into fee-simple ownership – that is, land that wasn’t owned outright – was put into trust by the federal government. From that point on, the land couldn’t be sold to non-Indians, but even land transfers among Indians or between Indians and the tribal government were heavily monitored by the federal government. In fact, as Anderson points out, bureaucratic interests as much as anything have historically driven the U.S. government’s Indian policy.¹⁶

The effects of the trust have been disastrous for economic development on Indian lands. First, because most trust land is held communally, individuals don’t want to invest in it, and they can’t use it as collateral either. As John Koppisch, a writer at Forbes, explains: “This leads to what economists call the tragedy of the commons: If everyone owns the land, no one does. So the result is substandard housing and the barren, rundown look that comes from a lack of investment, overuse, and environmental degradation. It’s a look that’s common worldwide, wherever secure property rights are lacking – much of Africa and South America, inner city housing projects and rent-controlled apartment buildings in the U.S., Indian reservations.”¹⁷

As one tribal leader describing a similar situation in Canada explained to Koppisch, “Markets haven’t been allowed to operate in reserve lands. We’ve been legislated out of the economy. When you don’t have individual property rights, you can’t build, you can’t be bonded, you can’t pass on wealth. A lot of small businesses never get started because people can’t leverage property [to raise funds].”¹⁸

Even if an individual technically holds the land, the fact that it’s trust land means that the federal government has a say in how it’s used. Which makes it significantly less valuable. A 1992 study by Terry Anderson and Dean Lueck found that agricultural productivity on individual trust lands was 30 to 40 percent less, and on tribal trust lands 80 to 90 percent less, than on fee-simple lands on a reservation, where a given title rests entirely with an individual.¹⁹

Although tribes have been granted somewhat more power over decisions regarding their land in recent years, “at least four federal agencies are involved in the execution of any energy lease on tribal lands. . . . Not only does the BIA’s trust authority raise the cost of energy development on Indian trust lands, it has a long history of not living up to its fiduciary responsibility of managing Indian trust funds.” In 1996, a class-action suit against the BIA for this mismanagement resulted in a settlement of $3.4 billion.²⁰

Underlying federal policy are the assumptions that Indians are simply incapable of managing their own affairs and that natural resource development somehow runs contrary to their traditions. Researchers have examined this latter assumption in recent years. In his book 1491: New Revelations of the Americas before Columbus, Charles Mann looks at the scholarly consensus and concludes that the land was hardly “pristine” before Europeans’ arrival. For example, he says of the Amazon rainforests, “The new picture doesn’t automatically legitimate burning down the forest. Instead it suggests that for a long time clever people who knew tricks that we have yet to learn used big chunks of Amazonia nondestructively. Faced with an ecological problem, the Indians fixed it. Rather than adapt to Nature, they fixed it.”²¹

Another common assumption about Indians today is that they’re traditionally communists, sharing all property. But the truth is much more complicated, and historians have found significant evidence of individual and family-held property rights among Indian tribes.

In the 1974 “Boldt” decision, which granted fishing rights to Indians in the Pacific Northwest, presiding judge George Boldt cited the history of Indian fishing in the area in his decision: “Generally, individual Indians had primary use rights in the territory where they resided and permissive use rights in the natal territory (if this was different) or in territories where they had consanguineal kin. Subject to such individual claims, most groups claimed autumn fishing use rights in the waters near to their winter villages. Spring and summer fishing areas were often more distantly located and often were shared with other groups from other villages.”²² Indians invested significant effort in ensuring an adequate supply of fish each year. The idea that prior to whites’ arrival, Indians were simply roving bands living off whatever wildlife they happened to come upon and then sharing it equally among themselves runs contrary to history – not to mention everything we know about human ingenuity and human nature.

But it’s an idea that continues to dictate public policy.

For today’s journalists and historians looking back at the Dawes Act, the problem is clear. As Bordewich wrote, “Like many of his contemporaries in the golden age of capitalism, Dawes perceived private property as an almost magical force, a severe but benevolent taskmaster with transformative power.”²³

The truth of the matter is that Dawes was right – private property is an almost magical force. As any survey of world history demonstrates, countries that have adopted private property rights and the rule of law to enforce them are better off by almost every measure. Over the past 200 years, with the spread of capitalism, global per capita income has increased more than tenfold and average life expectancy has more than doubled.

As Leonard Carlson notes in his 1981 book Indians, Bureaucrats, and Land, “no student of property rights or, indeed, economic theory will be surprised that the complicated and heavily supervised property right that emerged from allotment led to inefficiencies, corruption and losses for both Indians and society.”²⁴

In addition to the corruption that dominated the initial process of assigning allotments, there was also the 25-year waiting period before Indians actually owned their plot of land outright. This provision, ostensibly intended to protect Indians from selling their land to rapacious whites before Indians were judged “competent” to know their own interests, had the effect of diminishing the land’s value. Imagine that you were broke and someone gave you an acre of land but told you that you had to wait 25 years to sell it. Unless you wanted to start planting vegetables tomorrow, what good would it do you? You couldn’t even use it as collateral to get a loan, because technically it wouldn’t be yours yet. These kinds of provisions have the effect of sucking the magical powers out of a system of private property.

In other words, Indians have long suffered from what Nobel Prize–winning economist Hernando de Soto has called “dead capital.” They may possess a certain amount of land on paper, but they can’t put it to use by selling it, buying more to take advantage of economies of scale, or borrowing against it.

“There are, of course, arguments that the allotment experiment was a failure because it transferred so much land to whites,” notes Anderson, “but there is no systematic evidence to test this proposition. Certainly vast amounts of land were transferred to whites, but by itself this is not prima facie evidence that Indians were left worse off. If land was taken without compensation, there is no doubt that Indians were disadvantaged. To determine the impact of voluntary sales, we would have to know the sale price relative to the value of the land to Indians had it been retained by them.”²⁵

In other words, if you had a piece of land and you sold it for fair market value, no one would look at the situation and suggest that you had suffered some kind of great loss or had been swindled. You might simply have decided that the money you could get was more valuable to you than the land. Particularly when it comes to farmland, this determination is often based on how large a plot of land you own. Agricultural productivity is based on economies of scale. A reasonable person, whether Indian or non-Indian, might decide that 160 acres isn’t enough to make farming worth it or might rather have the money from the sale of the land and do something else with it. Not everyone aspires to be a farmer. But the Dawes Act, as it was written, didn’t take sufficient account of these possibilities, and those who assess its success or failure today typically don’t either.

If the idea behind U.S. policy in the early 20th century was either to help Indians or to help white settlers, the easiest way of accomplishing this would’ve been to grant a simple title to the land to either group and let each do what they wanted. But, “had the land been given directly to Indians or whites, what role would there have been for the Office of Indian Affairs?” Anderson asks pointedly. Although the Dawes Act was ostensibly implemented with the idea of making Indians independent and regular citizens of the United States, Washington’s oversight of them increased significantly the longer the policy was in place. From 1900 to 1920, the number of employees grew from 101 to 262.²⁶ (Today, there are about 9,000 employees at the Bureau of Indian Affairs and the Bureau of Indian Education.) This result, says Anderson, “is hardly surprising as bureaucrats are highly unlikely to sit back and watch their mission and jobs wither…. The BIA found its raison d’être with the passage of the Indian Reorganization Act in 1934.”²⁷ Now the goal was no longer to make Indians independent of federal oversight but to permanently enshrine that federal oversight. In the name of protecting Indians from rapacious white people, the federal government has made itself indispensable to Indians’ daily economic lives.

Meanwhile, Indian land has become all but useless to Indians themselves. The patchwork left by Dawes and then the Indian Reorganization Act has meant that reservations include land owned by individual Indians, land owned by individual non-Indians, land owned in trust by individual Indians, and land owned in trust by the tribe. Any major development, whether real estate or natural resources, involves such complex negotiations that it’s rarely worth the cost. Moreover, the federal government determined that land owned by individuals would be inherited equally by their children. It’s possible for an individual to stipulate otherwise in a will, but as Small and plenty of other Indians have confirmed to me, wills weren’t a part of traditional Indian culture, and few people ever wrote one.

The result is that “[t]hroughout Indian Country, most allotments have been subdivided and redivided so many times that they are worthless to the nominal owners,” asserts Bordewich. He notes that in the early ’90s, the chairman of the Omaha tribe was receiving “a total of $2.40 annually for his share of a family allotment whose ownership is splintered among more than two hundred heirs. Much land that is Indian-owned on paper has in fact become so fragmented that to be made economically viable at all, it has had to be leased out by the Bureau of Indian Affairs to white farmers and ranchers.”²⁸

In summary, the Dawes Act wasn’t a good test of property rights, because Indians never had them.

In the past few decades, tribes in both the United States and Canada (which adopted a “reserve” system similar to our reservations) have attempted end-runs around this policy – some tribes will back mortgages for individuals, essentially putting up the tribal coffers as collateral on the loan. The effects are as predictable as they are disastrous, with tribes like the Kamloops in British Columbia paying millions of dollars a year to Canadian banks on behalf of their delinquent members. Some tribes have made informal arrangements with banks – promising that if the banks are forced to foreclose, the tribe will help them find another buyer within the tribe so that they can recoup their losses.

When I ask Susan Woodrow, the assistant vice president and Helena branch executive of the Minneapolis Federal Reserve Bank, whether any of these strategies has been successful at improving rates of home-ownership or credit on the reservations, she tells me, “The short answer is no.” Woodrow has spent much of the last 15 years helping tribes develop commercial law codes to encourage investment and private enterprise on the reservations. She describes some of the complex financial arrangements that tribe members have used to make mortgages possible, and they’re nothing less than dizzying. As an example, Conrad Stewart tells me, “I had my dad give me a homesite lease on his property. That way the mortgage is not attached to the land; it’s attached to the lease interest and based on the mortgage.”

Homesite leases are typically entered into for a period of 25 years and then renewable for another 25. They’re common on Indian land because of the difficulties of getting a regular mortgage, and the Bureau of Indian Affairs monitors them heavily. A group called PLACE Advocacy, based in Bozeman, Montana, tries to help Indians navigate these obstacles. Its website features a flowchart of 10 steps (not including any steps taken by the lender) that must be completed for such a lease to be approved. Perhaps the most noteworthy part of this document, though, is the helpful cartoon on the side explaining that leases can be agreed upon only for “fair market value.” Fair market value “is the dollar value of a property based on a formal appraisal by the Office of Special Trustee (OST) in Billings.”²⁹ A bureaucratic appraisal would obviously not be the definition of “fair market value” offered in most introductory economics textbooks. But on reservations, there can’t be anything called “fair market value” when it comes to land, because none of the land is privately owned. “The American dream is homeownership,” laments Stewart, “but that’s not really possible here.”

But there’s more than homeownership at stake. American homes are one of the primary repositories of American wealth. And for those who want to start a business, they’re one of the primary sources of start-up capital. But because Indians don’t own their land – or, in most cases, their homes – they can’t get credit, making it extraordinarily difficult for them to set up a small business. Stewart sums up the situation: “We are the highest regulated race in the world.” Not only have individual American Indians been regulated into a kind of paralysis, larger economic projects on the reservation have all but stopped as a result of federal oversight.

If property rights on reservations were well defined, it would not only improve the housing stock and the general appearance of these communities but also significantly boost economic development. As Terry Anderson and Shawn Regan of the Property and Environmental Research Center wrote in 2013, “Crossing into reservations, especially in the West, reveals islands of poverty in a sea of wealth.”³⁰ Crows and Northern Cheyennes sit on some of the largest oil, gas, and coal reserves in the country. Indian reservations, Anderson and Regan note, “contain almost 30% of the nation’s coal reserves west of the Mississippi, 50% of potential uranium reserves, and 20% of known oil and gas reserves” – resources worth nearly $1.5 trillion, or $290,000 per tribal member. Tragically, “86% of Indian lands with energy or mineral potential remain undeveloped because of Federal control of reservations that keeps Indians from fully capitalizing on their natural resources if they desire.”³¹

In order to tap into those reserves, Indians (whether the land is tribally held or individually held) must follow a 49-step process. These steps involve the Bureau of Land Management, the Department of the Interior, the Department of Justice, and the Commerce Department, explains an exasperated Stewart. And it can take months, if not years, for each step to be approved. Just to dig a hole, he says, requires a $6,500 up-front payment for an application for a permit to drill (APD).

Compare that, Stewart says, to the process just off the reservation, which requires about $125 and 15 minutes for the APD and then a mere five-step process for the permit to be approved. Stewart explains that although the tribe has had a coal mine since 1973, little progress has been made in getting resources out of the ground. The mine is the second largest in the nation, with 3 percent of the world’s coal reserves, but it extracts only 5 million tons a year. A few miles off the reservation at Powder River, the yearly extraction is close to 120 million tons a year.

It’s true that not every reservation is enthusiastic about the idea of natural resource development. The Northern Cheyenne are conducting a referendum on the issue, and though Ivan Small believes most tribe members would be in favor of it, he suggests that the tribal government is overly influenced by people concerned about the environmental impact. Winfield Russell, of the Northern Cheyenne tribal council, says he worries that development of the land “will undermine or destroy Native culture.” Russell says he’s not taking a position on the issue, but he sees a strong connection between the untouched land and the tribe’s spiritual values. Unlike many other tribes, he says, “we’re still strong here as far as our ceremonial culture and spirit on the reservation. We still have our covenant here.”

Northern Cheyenne lands are almost entirely held in tribal trust, which means that no economic development on the reservation can happen without a vote of tribe members (in addition to all those bureaucratic steps at the federal level). This is why, for instance, the tribal two-year school, Chief Dull Knife College, can’t expand its facility, even though enrollment has skyrocketed. “They will have to build up, not out,” says Russell. “The college borders on a cemetery, and there is other land we can’t go onto.” The absurdity of adding additional stories to a building – this isn’t New York City – on a reservation with hundreds of thousands of empty acres doesn’t seem to strike anyone.

The Northern Cheyenne could sure use the money and jobs a coal mine like the Crows’ would bring. The unemployment rate for the 8,000 tribe members who live on the reservation is more than 80 percent. And when I ask Russell how those members are employed, he offers the following list: “Tribal Health Services, the Bureau of Indian Affairs, reservation schools, the roads department, the tribal court, tribal prosecution, our recovery center, and our tribal college.”

That’s it. He mentions not a single private enterprise. Russell laments that the most talented people on the reservation tend to leave. “On the outside, they have more pay, better benefits – that is where a person will go. That’s what usually happens.”

When I ask him what could be done to improve economic opportunity on the reservation, he tells me “more assistance from the federal government, helping the tribal government and financially assisting them and getting grants to the tribes.” He also suggests the need for reforms at the Bureau of Indian Affairs. But nothing Russell suggests would do anything to encourage private enterprise. It would merely continue the same kind of dependent relationship the tribe has with the federal government right now.

To make matters worse, the federal government isn’t even legally bound to deliver subsidies to Indians. In Cherokee Nation v. Hitchcock (1902) and Lone Wolf v. Hitchcock (1903), the Supreme Court ruled that treaties signed with Indians could be modified or terminated without Indians’ consent. Indian leaders continue to cite the U.S. government’s treaty obligations when explaining the need for the government to provide funding for education or health care. But the Snyder Act of 1921 allows the federal government to treat all tribes the same, regardless of the treaties those tribes signed. And as the Cato report notes, the Snyder Act “made Indian social programs subject to the same congressional spending adjustments as other programs.”³² Sadly, it seems that these spending adjustments are always going in one direction – up – and there’s a general assumption that these programs will simply be permanent. But there’s no guarantee.

To know just how much the economy on the reservation depends on public funds, one need only learn the effects that the federal government shutdown in the fall of 2013 had on Indian reservations. Take the Crow tribe. Some 364 Crow members, more than a third of the tribe’s workforce, were furloughed. A bus service, the only way some Crows are able to travel across their 2.3-million-acre reservation, was shuttered. A home health care program for sick tribal members was suspended.³³

The Yurok tribe in Northern California relies almost solely on federal financing to operate. Its reservation has an 80 percent unemployment rate. As a result of the shutdown, the tribe furloughed 60 of its 310 employees, closed its child care center, and halted emergency financial assistance to low-income and older members. Financing for a program that ensures clean drinking water on the reservation ran low.³⁴

These tribes are so dependent on the federal government that without money from the Bureau of Indian Affairs, their economic activity comes to a complete halt and their members may not have access to clean drinking water.

Despite the vast amount of federal money that does usually flow to these communities, there’s little accountability. Though there were some reforms in the 1970s, many tribal governments are rife with corruption. And the lack of a private economy makes things worse. If all jobs are government jobs, then they become all the more important as prizes to be given to supporters or simply to extended family.

Still, in every community I visited, a few people like Ivan Small understood that no amount of federal funds was going to stop the poverty and dysfunction. What they longed for wasn’t more money. They didn’t care for more apologies or hand-wringing from white folks in Washington. What they wanted was what Senator Dawes once promised their people – emancipation.

The problem is the same in Canada, says Manny Jules, one of the leaders of the Kamloops band in the province of British Columbia: First Nations (as Canadian Aboriginals are called) don’t have real property rights. And property rights, he says, “are human rights.” Of course, the notion that Indians believe in property rights is contrary to everything that you hear about Aboriginal Peoples, he notes.

A small, gray-haired man with a warm smile, Jules went to art school when he was younger, hoping to become a sculptor. But he put that pursuit aside to assume a leadership role, first as a councilor of the Kamloops band, then as its chief and one of the cofounders of the Shuswap tribal council, of which the Kamloops band is a part.

The city of Kamloops (2011 population: 85,678) enjoys a gorgeous setting. In the same hotel I stay at are hikers, mountain bikers, and nature lovers. In the heart of Kamloops is the confluence of the North and South Thompson Rivers – the former flowing from the Thompson Glacier at the foot of the Caribou Mountains, the latter coming from Little Shuswap Lake (which, at 7 miles long and 5 miles wide, is not so little). In the summer, Canadian and international travelers eager to experience the region’s natural beauty come in busloads. The days are hot and dry, but in the evenings, when the temperature cools down, families gather at the well-kept public beaches and parks along the rivers.

There are a few expensive restaurants in Kamloops whose menus emphasize “local ingredients,” but mostly the city has the feel of a middle-class oasis where people have found the right balance of work and play. Railway lines meet here, so the region is a hub of economic activity. There are coal mines and copper mines. Natural resources are plentiful.

But if you want to see how the land question affects members of First Nations, drive at night to the top of one of the peaks overlooking the city. On one side of the river, there are lights everywhere – apartment buildings, homes, businesses, and hotels. On the other side – the land held by Jules’s band – there’s mostly darkness. It’s not quite as stark as the difference between North and South Korea in satellite images, but it comes remarkably close.

The first thing you notice when you drive to the other side of the river is the waterfront. Right on the edge of the rivers is a trailer park with hundreds of homes so close together they might as well be on top of one another. A little ways back from that are some lumberyards and car dealerships interspersed with small homes, many of which are badly in need of repair.

Much of this part of town has a feel of impermanence to it. And that’s no accident, explains André Le Dressay of Fiscal Realities Economists, a group that conducts economic research and analysis, develops innovative solutions, and advises and advocates for public, First Nation, and private sector clients. In the Kamloops area, Le Dressay estimates that a First Nation member-owned home is worth about 1/20th what it’s worth off reserve. “These are classic economic results.”

“You don’t see big permanent structure leases for less than 15 years,” Le Dressay tells me as we drive around the Indian side of the water. On the side that’s not a reserve, homes sell for more than half a million dollars, but here the most profit to be made off the land is from a trailer park. Since the band has no money, they’re unable to create the public parks and other facilities you see on the other side of Kamloops. They’re barely able to keep up with the projects they do oversee. The cemetery holds victims of the 1860 smallpox epidemic as well as veterans of the World Wars, Korea, and Vietnam, but it looks overgrown. The local Catholic church is undergoing a much-needed renovation, but the houses around it are falling apart.

In another attempt to work around the land problem, some First Nations have arrangements whereby a bank will give band members a mortgage, but if the members default, the band itself is on the hook for the money. The results are predictable: the Kamloops band is paying more than $2 million a year in arrears. And it’s not only the mortgage payments that are the problem, it’s the upkeep. Le Dressay tells me that the “average lifespan of a tribal home is 15 years.” That is, homes are so poorly cared for that they need to be completely demolished and rebuilt after only 15 years.

There’s one large gated community on the Indian side of the river. The tribe came to a complex agreement with a developer for a 99-year lease on the land. The community has its own restaurant and golf course, and plenty of non-Indians have purchased homes here.

But for every successful development project, there are several others that have fallen through. Twenty years ago, a plan for a big hotel and residential development brought together seven or eight landowners, Le Dressay recalls. “But it took so long to get the regulatory approvals and the environmental approvals that the lenders got nervous. One of the front men eventually committed suicide because of all the pressure. It never took off.” Studies by Fiscal Realities have found that development on the Indian side of the river takes, on average, four to six times longer than development on land off the reserve.³⁵

Jules supports a parliamentary proposal, the First Nations Property Ownership Act, which would address this problem by allowing First Nations to have title to their own lands instead of having the Canadian federal government hold those lands in trust. But “one of the biggest challenges we face in convincing people about [the First Nations Property Ownership Act] is mythology,” says Le Dressay. “The popular understanding of indigenous culture is that it’s almost like there was a socialist utopia for millennia.” But such a utopia never existed. As Le Dressay notes, “In any other circumstances such a society would have been impossible – unless you consider North Korea a success story.” But people continue to impose this history on First Nations, as if they’re exceptions to human nature.

A lot of the literature on First Nations’ history and traditions was written in the 1960s and 1970s – a time when environmentalism and socialism were surging in the West. More was contributed in the 1980s, a time of political correctness, when scholars pushed the notion that traditional cultures were far ahead of the dominant Western one because of their communalist impulses.

After engaging in extensive research on his own communities and others in Canada, the United States, and Mexico, Jules has come to the conclusion that this is all bunk. “Property rights are part of indigenous culture,” he tells me in no uncertain terms. As he explains, “In my community, we have some of the oldest pit house sites.” Pit houses were permanent structures requiring considerable time and resources to build. “They were nice and toasty warm in the winter. In the summer we went out and gathered salmon, berries, wild vegetables, and hunted game. In the winter we came back to settled villages. There is no way we would have left and come back to allow some other family to live in our pit house.”

And yet political leaders and educators continue to offer sentimental myths in place of this history. Michelle Obama recently told a gathering of Native American youth, “Long before the United States was even an idea, your ancestors were harvesting the crops that would feed the world for centuries to come” and “Today on issues like conservation and climate change, we are finally beginning to embrace the wisdom of your ancestors.”³⁶

Mrs. Obama hasn’t discovered some ancient Indian text that predicted the melting of the glaciers. And there’s little evidence that Indians had any fundamentally different understanding of the environment than any other people on Earth. Which is to say, when resources were scarce, Natives worked to conserve them. When resources weren’t scarce, they didn’t.

Take, for instance, the oft-repeated notion that Indians would “use every part of the animal” – because of their concern for nature and their desire not to waste its treasures. History doesn’t back that up. In a 2002 article called “Buffaloed: The Myth and Reality of Bison in America,” historian Larry Schweikart notes that some Indian tribes cleared large amounts of forest with “controlled burns” for hunting purposes. They would divert game into small, unburned areas to make it easier to hunt the animals.³⁷

As if that weren’t bad enough from an “environmental” perspective, Schweikart says, the intentional fires “often got out of control, and without modern firefighting equipment, flashed through forests, destroying everything in their path. Deer, beaver and birds of all sorts were already on a trajectory to extinction in some areas, because over and above the hunting done by Indians, natural predators and disasters thinned herds.” Other hunting methods included the “buffalo jump,” in which a man would drive an entire herd over a cliff. As Schweikart notes, this “led to horrible waste and inefficient use of resources.” When buffalo were plentiful, they were hunted without regard to waste. When their numbers dwindled, things changed.³⁸

To the extent that Native Americans of old cared about conservation, it was when they owned things. Jules notes that the same is true of the Natives who lived in Canada, saying, “The teepees were owned by individual women.” He leans in to emphasize the point. “The concept that we never had private property has been foisted upon us.” It’s interesting that in revisionist academics’ attempts to suggest that First Nations are more advanced due to their communal attitudes, they’ve actually “reinforced the notion that we are not as advanced as somebody else, as Western culture.”

Jules believes that the time for passively accepting the status quo is over. During three decades of involvement in tribal leadership, he has tried to significantly alter federal policy toward Indians, creating greater political and economic autonomy for First Nations. He has worked with other leaders to develop political clout, so that the Canadian government can’t ignore them.

Self-sufficiency has become Jules’s mantra for the Kamloops band and for all the First Nations of Canada. He seems to have the right combination of experience and optimism to make changes happen in his community. Jules’s father, a logger and a cowboy who could, according to Jules, “ride from the time he could walk,” set up the first industrial park on a Canadian reserve. In 1963, 14 businesses opened there, but the logistical problems of doing business on the reserve immediately became obvious: Jules’s father had a tough time getting anyone to plow the roads in winter. The province claimed that snow removal was the federal government’s responsibility – because the reserve was federal land – but the federal government said it was the province’s responsibility because the province collected taxes on the land.³⁹ This controversy led to a decades-long fight with the Canadian government – specifically over issues of taxation, but more broadly about political and economic autonomy for First Nations.

In 1988, thanks to Jules’s leadership in calling for reform, Parliament passed “The Kamloops Amendment,” the first-ever First Nation–led change to the Indian Act. The Indian Act has regulated the 614 First Nation bands in Canada ever since it was passed in 1876. The Kamloops Amendment established the power of governments of First Nations to levy property taxes on reserves, including taxes on leasehold developments like the industrial park Jules’s father helped launch. It also allowed governments of First Nations 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 discussions and the creation of massive legal and regulatory bodies to support ongoing consultation. Effectively, this means the treaty process never ends.”⁴⁶

Meanwhile the legal question of “Aboriginal title” is working its way through the courts as well: do First Nations have any claim to land that is not part of their reserves? After Calder, cases in 1984 and 1997 and most recently in 2014 expanded and solidified Aboriginal title as a concept in Canadian law.

Indeed, in 2014, in Tsilhqot’in Nation v. British Columbia, the Supreme Court granted title to First Nations on land that was off of their reserves. The Tsilhqot’in claimed that the government of British Columbia didn’t have the right to grant a commercial logging license on land that First Nations had occupied continuously for hundreds of years. And the court agreed.

Written by Chief Justice Beverley McLachlin, the unanimous ruling says that Aboriginal title “flows from occupation in the sense of regular and exclusive use of land. . . . Occupation sufficient to ground aboriginal title is not confined to specific sites of settlement, but extends to tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources and over which the group exercised effective control at the time of assertion of European sovereignty.”⁴⁷

When I visited Kamloops several weeks after this decision was handed down, leaders of First Nations, including Manny Jules, were working furiously to come up with their response to this decision. How would it affect their willingness to participate in the treaty process? Would it change people’s support for the First Nations Property Ownership Act? If millions of acres of land were now in play, should First Nations really focus their efforts on gaining clearer title only to land on the reserves?

There was a great deal of disagreement among the leaders I spoke with about exactly what this decision would mean. In principle, it could mean that First Nations could claim the entire city of Kamloops, one of the top 50 metropolitan areas in the country. Would they be compensated by the tens of thousands of residents and businesses occupying land that First Nations once used for hunting? And which bands could rightly claim title? Some bands have claimed overlapping lands. Hunting lands in particular were hard to demarcate.

Although some Canadian Indians are hopeful that a claim to Aboriginal title will expand their claims on the land, others are concerned that this will only inject more uncertainty into the land question, which is the last thing that those interested in economic growth want to see. Though these disputes over land ownership and political autonomy have been around for more than a century, leaders of First Nations have good reason to want to see a resolution to these matters sooner rather than later. They know from numerous investors that the only way more money will flow to First Nations is if there’s some certainty about who owns and who’s responsible for the land on and off the reserves.

In their introduction to the book Beyond the Indian Act, Tom Flanagan, Christopher Alcantara, and André Le Dressay lay out the problems succinctly: “Aboriginal people are the least prosperous demographic group in Canada. In life expectancy, income, unemployment, welfare dependency, educational attainment, and quality of housing, the pattern is the same: aboriginal people trail other Canadians. And within the category of aboriginal people, another pattern also stands out: First Nations (status Indians) do worse than Métis and non-status Indians; while among First Nations, those living on-reserve do worse than those living off-reserve.” The future seems pretty bleak too. As the authors note, “These patterns have been more or less stable for decades. Aboriginal people and First Nations are progressing on most indicators compared to other Canadians, but the progress is painfully slow, and it will take centuries to achieve parity at these rates of change.”⁴⁸

It’s worth noting the similarity of this situation with that of tribes in the United States. Observers often say that Indians are more visible in Canada because other racial minorities make up a smaller proportion of Canada’s population than America’s. In other words, the problems of blacks and Hispanics overshadow the problems of Indians in the United States.

But the land problems and the resulting government policies are at the heart of why both American and Canadian Indians are experiencing so many economic and social problems.

The reserve lands in Canada don’t have the “patchworking” problem that resulted from the policy of allotment in the United States. In Canada, bands themselves (as opposed to individual Indians) collectively hold much more of the reserve lands than is the case in America. But Canadian Indians still have the same underlying problem. First Nations technically have title to the land, but it can only be “alienated” – that is, it can only be sold – through the federal government, and, as Brock told me, “the Crown has a fiduciary duty to make sure the land fetches a fair price.”

But now the question is how to move forward. The first priority, Jules says, is to change or repeal the Indian Act. The Indian Act “freezes things in place,” notes Jules. It was “written when we were a dying people.” But if there’s to be change in policy at the federal level, First Nations need to be prepared to take over certain aspects of their own governance. If First Nations are eventually to be treated as another province – one possible outcome here – what tasks are they willing and able to take on?

The leaders of tribes in British Columbia commissioned a report looking at 200 different areas of governance. “We don’t want our own postal service or our own standing army,” says Jules. But they do want more responsibility for taxation and local services, including utilities and education.

One advantage that First Nations have over their American brethren is that they’re a significant political force. According to Canada’s 2006 census, Aboriginal Peoples compose about 3.6 percent of the Canadian population. Compare this proportion with only 1.7 percent in the United States.⁴⁹ Because of their geographic distribution, Canadian Indians have significantly more political power as well. Indian politicians not only have been elected to Parliament but also hold the majority of elected seats in two provincial legislatures. American Indians, by contrast, have amassed no such power. And although they may be influential in, say, the election of a legislator from South Dakota, they’re not going to be able to sway many votes in Washington.

Also, the population of First Nations is growing rapidly. According to official estimates, between 1971 and 2011, it grew by 487 percent, while the total Canadian population grew by 52 percent. Although some of that growth is attributable to a greater number of people claiming Aboriginal ancestry, it’s true that the birth rate among Aboriginal Peoples is higher than among the rest of the population. According to the Canadian government, “Amongst the Aboriginal population, 46% of individuals are under age 25, compared to 29% for the rest of the Canadian population.”⁵⁰

These numbers have started to make political leaders pay attention. In a book called Time Bomb, Doug Bland, former chair of Defence Management Studies at Queen’s University, argues that the conditions are ripe for an uprising by First Nations, whose economic and political aspirations have been stifled for so long. Bland foresees the potential shutdown of major means of transportation by protests and civil unrest. He told the Ottawa Citizen that he was “not predicting a revolution or an armed uprising.” But because the population of First Nations is disproportionately young and “concentrated in areas critically important to Canada’s resource industries and transportation infrastructure,” he said he sees the potential for a real standoff of some sort. He warns that a “confrontation” could occur if Canadian and First Nation leaders can’t solve some of their conflicts.⁵¹

But the difficulties in resolving these conflicts stem from more than intransigence on the part of the Canadian government. Because Canadian bands operate independently – some have fewer than 100 members – it can be very hard to get any kind of broad agreement among First Nations when lobbying for a particular policy.

Indeed, because some bands may not want these property rights, one selling point of the First Nations Property Ownership Act (Jules and his allies emphasize this repeatedly) is that any band can choose not to “opt in” to the legislation. Every band should at least have the opportunity to introduce property rights, however.

For all the concern about an imminent revolution on the part of First Nations and the groundbreaking high court decisions that have been handed down, not much has really changed on the reserves. Mike Lebourdais, the chief of the Whispering Pines/Clinton band, who live a couple of hours from Kamloops, tells me that the federal government has made it impossible for bands to improve their situation economically. The best advice he can give his children and the children of others in his band is to get an education and leave, and so his band spends more than most on education. They not only pay for primary and secondary education but also spend almost $300,000 a year to help pay for postsecondary education. A number of times, I hear from leaders of First Nations that education is “the one thing the government can’t take away from you.”

The entire Whispering Pines band – today about 56 members – moved to Whispering Pines only in 1972. Their traditional lands are farther north, but when the government started developing hydroelectric power there, a transmission system was built right through the band’s land. The Ministry of Indian Affairs “is never proactive,” says Lebourdais, but once it recognized the land was “unlivable,” the ministry gave Whispering Pines a new reserve.

As I drive to Whispering Pines from Kamloops, it’s very easy to see the borders between band land and privately owned land, even without crossing the Thompson Rivers. The farmland that seems to speed by my window goes from lush green to brown and then back again.

That’s because, for one thing, band members couldn’t get a bank loan for an irrigation system. “We don’t have a balance sheet,” Lebourdais explains. “We have an expense statement, but we don’t have a balance sheet. So you’re going to spend $15,000 or $18,000 a year on electricity for property that doesn’t exist on paper. It exists in real life – you can touch it, feel it – but it doesn’t mean anything to a banker unless you can describe it legally.” And the entire system makes no sense to a banker because you’re trying to irrigate land you don’t actually own. Which is why, says Lebourdais, “everything is cash on the reserve.”

The fact that the land is held in trust by the Canadian government restricts the economy on the reserve to cash or barter, forcing the Whispering Pines band to live in a kind of preindustrial society.

To illustrate this point, Ed Lebourdais, Mike’s brother, describes a meeting he had recently with the minister of Indian affairs (known officially now as the minister of Aboriginal affairs and northern development). “We’re all equals,” the minister told him. To which Ed said:

“No, we’re not.”

He said, “We’re all Canadians.”

I said, “No. No. Your house is worth something. Mine’s not. And if you don’t believe me, let’s trade houses.” You could hear a pin drop in that office, because nobody wanted to say anything. I smiled at him and he smiled back, and I said, “Exactly. So don’t sit there and tell me we’re equals.” When he holds all the cards, has all the finances, has all the money, all the jurisdiction, all the authority, and none of the accountability.

Indian property isn’t easily transferable to other Indians either. The Indian Act makes it very difficult for Indians to will their homes to their children. And so, more often than not, after the death of its owner, a home is simply auctioned off to the highest bidder.

Take the situation of Deana Crawford. About 15 years ago, Deana, who is not Indian, married a member of the Whispering Pines band. She and her husband had two children and then he left her. Every month, she pays rent on the home, which is located on land owned by the band. But no matter how much she pays, she’s no closer to owning the home. Even though her children are members of the band, she isn’t allowed to own band land. She can never get a mortgage for the land. And she can’t leave it to her children.

Lebourdais has encouraged his small band to be as entrepreneurial as possible given the circumstances. Within the band, a group of firefighters contract with the provincial government to combat forest fires in other parts of British Columbia and other parts of Canada as well. It’s a business that doesn’t require any land, so it’s more feasible than many other enterprises, though it did require the purchase of some equipment.

Lebourdais is disdainful of the dependence on government that many bands seem to have developed. The government sends Lebourdais money each month for what’s called Social Assistance. But Lebourdais says he refuses to sign those checks over to members of his band unless they can prove that they’re physically incapable of working. “I’ll probably get in trouble for this, but I don’t care,” he tells me.

Lebourdais is adamant: “There is no reason for an 18-year-old person to be on welfare. No good reason, anyway. You’ve got both arms, both legs, you got a dog with you for your eyesight. We’ll get you a job, whether it’s washing cars or washing dishes. If you think you’re worth more than that, go apply yourself, because I’m not going to cut you a check.” Lebourdais says people are better off this way – “you have better self-esteem, better values, better thoughts, when you have a real paycheck.”

Lebourdais sees the alternative everywhere he looks. In the Kamloops band, he says, “there are families that think, ‘The government owes me a house, so I’m not paying for this one.’” They don’t pay their mortgages or take care of their homes because they think that’s the band’s responsibility. Lebourdais doesn’t want that to happen to Whispering Pines.

Keith Matthew, former chief of the Simpcw band, which, like Kamloops, is part of the Shuswap Nation, recalls that when he was growing up “there wasn’t really much of an economy at all” on his reserve. “We still had an Indian agent,” he tells me, referring to the person sent by the Ministry of Indian Affairs to oversee all the activities of the reserve. In 1975, Matthew’s father was one of the band members who occupied the Indian agent’s office. “We were kicking the Indian agent out of our lives on an everyday basis,” Matthew says of the occupation, after which money began to flow from the federal government directly to the band. “That was an important turning point in our history.”

That was also the time at which the residential school was closed down. Matthew went to a local school nearby. Today, he says proudly, “My community is one of the highest educated ones in Canada per capita. We have our first medical doctor. We have people training to be lawyers. We have lots of teachers.” Unfortunately, says Matthew, because of the constraints of the Indian Act, “it’s tough to build an economy on the reserve . . . and two-thirds of the Simpcw live off reserve.” But like the Kamloops band, their neighbors 50 miles to the south, the Simpcw are trying to build up the infrastructure so that once they’re given more economic and political autonomy they’ll be poised to take control.

Because the Simpcw live in a very rural area, there’s a limit to how much they’ll be able to collect in property taxes, but they’ve started a group of band-owned companies in order to supplement their reserves. There’s a power line construction company and an environmental consulting company, for instance.

And ten years ago, the Simpcw launched a partnership with a heli-skiing company. For $1,500, thrill-seekers can go to the top of a mountain in a helicopter and then ski down. “It’s a very high-end clientele,” says Matthew. But the deal almost didn’t happen, because the band had difficulty coming up with its portion of the start-up money. “We found out in a hurry that we’re a bad risk.” They had no collateral to put down. But in 2003, there was a huge fire in the valley near their reserve. They bid on a job to remove all the salvage wood. They sold the wood and then used that money to invest in the heli-skiing venture.

There are many such opportunities for bands to make money from tourism, if only they can find the start-up capital. I meet Felix Arnouse, chief of the Little Shuswap band, at the Quaaout Lodge at Talking Rock Golf Course. Interest in building a resort on this lake began in the 1970s after the local Indian Affairs office was shut down. But the hotel wasn’t actually opened until 1990, Arnouse recalls.

Although financing the project was the biggest hurdle, many band members were opposed to getting involved in any kind of business venture, believing that they’d inevitably get the short end of the stick from non-Indian partners. And many, says Arnouse, “still think it’s a bad idea.” Like Indian casinos in the United States, the Quaaout Lodge manages to provide jobs for band members who want them, but there’s still not much in the way of private enterprise here.

Some band members still live in poverty, and many struggle with drug and alcohol addiction, Arnouse tells me. There are fights over who should pay the mortgages on individual band members’ homes. Arnouse, himself a recovering alcoholic, says that he sees the cycle over and over. “They drink and party and end up fighting. It’s a big thing in Native culture.” Some fights can lead to years of animosity, which spill over into the governance of the nation. Band members have made some reforms in tribal governance – such as instituting four-year terms for the chief – that will give businesses that work with them a sense of certainty about the future. But a lot of decisions are clearly driven by family politics.

The band did manage to get a loan from the federal government to build the resort, but band members did a lot of the actual construction. Despite the lodge’s success, Arnouse says they’ve had to be very careful about any expansion plans because it’s still very hard for them to get credit.

Arnouse is a supporter of the property rights legislation, but some of his band members, not to mention other band leaders, are opposed to it. But because the legislation doesn’t bind First Nations to adopt the policies, Arnouse and Lebourdais seem confident that Parliament will pass the First Nations Property Ownership Act within the next couple of years. Regardless of which political party is in power, Lebourdais believes there’ll be enough support for it. “This isn’t my first rodeo,” he assures me.

The biggest opposition, Lebourdais says, has come from other First Nations. “They think that white people are going to buy up the reserves,” he tells me. But under the terms of the act, the land would remain part of the reserve, just as other land might remain part of a city. And there’s something else, says Lebourdais: Aboriginal people in Canada “think property ownership is a white thing.” He worries that they really don’t understand their own history. “They’ve come to think that reserves are the way it was.”

But Lebourdais has educated himself about the way things were. In the summer of 1910, Prime Minister Sir Wilfrid Laurier went on a tour of Canada. On August 25, he was met in Kamloops by a delegation of chiefs from the Secwépemc, Nlaka’pamux, and Syilx nations, who offered him a history of how their people had lived before whites came to their territory and what had happened since their first encounters a century earlier.

When they first came among us there were only Indians here. They found the people of each tribe supreme in their own territory, and having tribal boundaries known and recognized by all. The country of each tribe was just the same as a very large farm or ranch (belonging to all the people of the tribe) from which they gathered their food and clothing, etc., fish which they got in plenty for food, grass and vegetation on which their horses grazed and the game lived, and much of which furnished materials for manufactures, etc., stone which furnished pipes, utensils, and tools, etc., trees which furnished firewood, materials for houses and utensils, plants, roots, seeds, nuts and berries which grew abundantly and were gathered in their season just the same as the crops on a ranch, and used for food; minerals, shells, etc., which were used for ornament and for plants, etc., water which was free to all.⁵²

The purpose of this letter to Laurier was to complain about the reserve system – that is, the chiefs noted that they had been promised sufficient land to continue their farming and ranching activities, as well as access to water sources and the ability to travel freely off the reserve. White settlers had gone back on these promises, as occurred across much of the American and Canadian West. But in their hopes to get Laurier to intervene on their behalf, the chiefs invoked their own history of property rights.

As the authors of Beyond the Indian Act write, “the historical evidence shows that the aboriginal peoples of North America are like all other human beings. They claim territories as collectivities but have no particular aversion to private property in the hands of families and individuals. Unless they are prevented by the force majeure of government, they change with the times and are willing to adopt whatever institutions of property are most economically efficient for the world in which they live.”⁵³

It’s astonishing just how much First Nations have managed to accomplish while living within the confines of the Indian Act. After getting the heli-skiing venture off the ground, the Simpcw worked to ensure that they had more of a say in other sorts of development going on around them.

In 2004, the Canadian Supreme Court ruled that the Crown had a “duty to consult” with Aboriginal Peoples before developing land on which they may have claims, even if those claims are unproven. In reaction to this decision, Matthew and his colleagues developed a “consultation accommodation framework,” which they now present to companies interested in doing business on their territory (both on and off reserve). “In the past, companies have just treated us as a second thought, so they would get a license to do business on the territories without telling us what they wanted to do.” Now, the Simpcw not only get some of the revenues from projects with companies like BC Hydro but also ensure that companies mitigate the environmental impacts of the projects and reserve a certain number of jobs for members of the band. A lot of Simpcw have gained experience from these ventures, says Matthew, experience that they’ve been able to put to use on other projects. The arrangement and its benefits are similar to the ones that the Seneca Nation has been able to gain in upstate New York by creating construction firms that contract with the federal government.

In a 2007 agreement with Kinder Morgan Canada, Matthew says, the Simpcw were given contracting agreements. They provided emergency flagging crews for construction workers, for instance. This has led to other opportunities, such as driving ambulances. Now, even when companies like these aren’t working on Aboriginal lands, they hire Simpcw people with this kind of experience to help.

These frameworks are frankly not the ideal means of economic growth. Many companies probably see them as an elaborate shakedown mechanism, but at least the firms are getting some “certainty” out of the agreement. Matthew doesn’t see these agreements as the endgame for his band, either. He calls these projects “low-hanging fruit” that his people can pick while waiting for some kind of reform to come out of Ottawa.

He complains that anything from registering a lease to dealing with a will can take decades on the reserve. “My father passed away intestate and it took 20 years to settle the land issue,” Matthew says. “When you have archaic clauses that govern how you do business on a reserve, there is virtually no opportunity for the creation of our own local economy.”

When I ask Matthew what could possibly take 20 years for the approval of his father’s will by the Canadian government, he answers, “I don’t know; I’m not a bureaucrat. I don’t know anyone who works in Indian Land Management.” Of course, one problem is that federal bureaucrats are far removed from what’s happening on the ground with these bands. But another is what Matthew refers to as the “cover your ass policy,” which simply means, as he says, “They’re not going to risk it.”

Risk what?

Because the land is held in trust and because the government has a “fiduciary responsibility” to protect the interests of First Nations, the Canadian government is essentially liable if anything goes wrong. For instance, if a band builds a copper mine on reserve lands and an accident results in some kind of environmental contamination, the Canadian government is responsible for the consequences. As Matthew notes, the band could sue Ottawa for allowing the mine to be built. Under this system, First Nations are essentially denied the chance to take responsibility for their own future. “In the eyes of the federal government,” Matthew notes, “as a Status Indian I am still a child.”

This is a theme I hear again and again from the chiefs. As Jules says, “In Canada, there are three types of individuals not allowed to own property – kids, the mentally incompetent, and Indians living on reserves.” Fixing this problem, he says, is a matter of “social justice.” Indians need to be able “to participate in the economy.” It’s not enough to get a few jobs out of a big natural resources project. It’s not enough to be able to conduct a gaming operation. “We need a diverse economy.”

But Jules worries that his people have been living in a state of dependency for so long that they’ll need to train themselves to take responsibility again. He tells me that he was recently at a meeting of Saskatchewan chiefs discussing the problem of crack cocaine in their communities. He relates one chief’s proposed solution: “We need a billboard outside the communities that says ‘don’t bring drugs here.’” Jules sighs. “They think the problem is people outside bringing it in. The problem is in our community.”