AAND Committee Meeting

STANDING COMMITTEE ON ABORIGINAL AFFAIRS AND NORTHERN DEVELOPMENT

COMITÉ PERMANENT DES AFFAIRES AUTOCHTONES ET DU DÉVELOPPEMENT DU GRAND NORD

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, June 6, 2000

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[English]

The Chair (Mrs. Sue Barnes (London West, Lib.)): Good morning, ladies and gentlemen.

Mr. Cornell, welcome to our committee hearings. Some people will be floating in and out, as you'll see through the time period.

Today, pursuant to Standing Order 108(2), the committee is proceeding to a briefing session on the Indian Act. Appearing as witness is Stephen Cornell, co-director of the Harvard Project on American Indian Economic Development, from the University of Arizona.

Everyone should have received in their offices a statement prepared by Professor Cornell. It's nine pages long. Did you get it? No? Are there translated copies here?

We'll allow you whatever time you need to explain your brief to us and then we'll be going to a round of questions from our various parties. Feel free to start whenever you like.

Professor Stephen Cornell (Co-Director, Harvard Project on American Indian Economic Development): Thank you very much, Madam Chair. It's a pleasure to be here. I very much appreciate the invitation to talk with you.

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I won't go through the entire statement I submitted to the committee, but I do want to summarize some portions of it and also say a few things that were not included in that statement. I'll give you the heart of it, I think, fairly quickly.

For the last dozen years I've been co-directing a research project, of which I was the co-founder at Harvard University in the late 1980s, named the Harvard Project on American Indian Economic Development. This project set out a dozen years ago to explain something we had noticed among American Indian nations in the United States, the fact that a number of those nations had been much more successful at economic development than others had.

By “successful” I mean they had begun to put in place sustained, productive economies that followed in essence their own preferences and direction and took place under their own auspices. We set out to try to understand why some Indian nations had been more successful at doing this than others.

The results of this research have been quite striking, and they were counterintuitive for us. We went into the research believing standard economic factors would turn out to be the determinants of economic success—for instance, those nations with good natural resources would do better than those without; those nations with good access to markets would do better than those without; those nations with substantial educational attainment would do better than those without; and so forth.

In fact, as the research unfolded, we found that those are not typically the determinants of success. The determinants of success have turned out to be almost entirely political. That's not to say that those factors I just mentioned don't matter. They do matter. But those nations that have good natural resources and good educational attainment tend not to do well unless they have first dealt with some of the political issues that our research addresses. I'll tell you what those issues are.

American Indian nations that are successful at economic development tend, number one, to be exercising self-governance. We, after a dozen years, have yet to identify an Indian nation in the United States that is successful at economic development in which some body other than that Indian nation is making the major decisions about resource allocation, development strategy, the organization of internal affairs, relationships with outsiders, and so forth. Self-governance appears to be a necessary, but not sufficient, condition for successful economic development.

The second finding, however, was that self-governance alone is no guarantee of success. Indian nations have to back up self-governance with good governance—that is, with effective governing institutions. We've seen a number of Indian nations who have, in essence, what in the United States we talk about as “sovereignty”—the ability to make their own decisions—but who tend to make poor decisions or to have governing institutions that are ineffective.

What we see among successful nations is the ability to put in place governing institutions that create an environment in which investors feel secure. I mean here a very broad and inclusive notion of investor—not only outsiders with money but also even tribal members who may be investing ideas or energy in the future of their nation.

What do we mean by good institutions? Certain things have turned out to be crucial, in our research, including strong, independent court systems or other dispute resolution mechanisms that guarantee people that their investments will be secure, will have a chance of paying off, and will not be hostage to politics or to corruption. That turns out to be essential. Two, it turns out that Indian nations have to be able to reduce political interference in business affairs. Three, they have to be able to put together bureaucracies that deliver. So good governance requires those kinds of institutional developments.

The third finding coming out of this research is that not only do Indian nations need good governing institutions, but if they're going to be effective, those institutions also have to have some resonance with indigenous culture, particularly indigenous political culture. You have to have institutions that people believe in and therefore you have to take indigenous culture into account in designing those institutions.

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A fourth finding, which is less systematic, is simply that tribes with strategic approaches to development tend to do better than those without. Most Indian nations in the United States are in dire economic conditions. They tend to look for quick fixes, for winning strategies that will solve all their problems, rather than building economies incrementally. They tend often to let decisions be made in the federal government about what will be funded and what will not. That removes the development agenda from Indian hands.

A strategic approach in which these nations choose their own priorities and think carefully about how to get there turns out to be more productive than the search for quick fixes.

Those are the key findings that emerged from this research. They are summarized in more detail in the statement I gave you.

I want to just say a few other things. These findings are robust. We continue to find support for them. As our research goes on there are other findings coming out of this research, but I think those are the core ones of interest here.

But surely it would make sense to ask about the limitations of this research and these findings and, in this case, about their applicability in the Canadian context and perhaps about their practicality in the Canadian context.

A few points that I think should be made I'd like to address briefly and, if you wish, I can address them in more detail later. First of all, this research is based on U.S. data. We have not done comparable research in Canada. We do not have comparable data on Canadian first nations. To my knowledge, no one has done comparable research in Canada, although we and others have talked about it and there have been some discussions about undertaking research of that sort. This is definitely a set of U.S. findings.

Number two, there are certainly significant differences between the situations of Indian nations in the United States and of first nations in Canada. These are, first and foremost, legal differences having to do with the position of those nations within the political and legal structures of these two societies. There are also demographic and geographic differences, which may be significant.

There are very different relationships between first nations and the provinces in Canada than there are between U.S. Indian nations and the states in the United States. In the United States, the Indian-U.S. relationship is heavily a federal relationship. States played a minor role in those relationships to date. That's now changing a bit.

There are other differences, and these may complicate some of the research relationships and findings we've seen. I think two of these should be singled out.

First of all, the right of Indian nations in the United States to self-governance is well established. It was established in a good many treaties. It has received intermittent but often robust support from the U.S. courts, including the United States Supreme Court. It is under frequent challenge, but it remains robust in the United States and, furthermore, it has substantial public support, as illustrated by some recent developments in the gambling industry where U.S. publics have come out strongly in favour of what in the U.S. is called sovereignty of Indian nations.

As I understand and see it, the appropriate extent of native self-governance in Canada remains very much at issue, to a degree that it is not in the United States, where that, in many senses, has long since been resolved.

The other difference that I think should be singled out here is land and population size. As in Canada, there are great many very small tribes in the United States with small land bases, especially in Alaska and California, but there are also 70 or so tribes with populations over 600. Some of those tribes have populations well over 10,000—the Navajo Nation approaches 250,000—and a number of those nations also have very substantial land bases, well beyond what most first nations in Canada have under their control.

What should we make of these differences? That they are somehow significant seems to me clear. The question is, do they render our research results irrelevant in the Canadian context? I very much doubt it.

We've seen tribes, both small and large, have significant effects on their development prospects by paying attention to the kinds of things that have emerged out of our research, to the principles that have emerged: the centrality of self-governance, the importance of backing up self-governance with good governance, the importance of cultural issues in the design of governing institutions, and the importance of strategic orientations. I am convinced that these apply here as they demonstrably do in the United States among Indian nations and as they demonstrably do elsewhere around the world.

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I think the question is how to implement such principles. Small bands can gain economies of scale in organizational alliance with bands of like cultural background. We're seeing some signs of that in Alaska and in California in the United States. That seems to me to be a logical strategy here. Size is not a necessary limitation on the applicability of these findings.

The land base need not be a limitation either. In two of the cases that I have given you in that statement, the Mississippi Choctaws, who have a significant land base but no significant natural resources on it, and the Citizen Potawatomi Nation in Oklahoma, which has no significant land base whatsoever, both have demonstrated that the availability of natural resources and a sizeable land base are not themselves essential to successful economic development.

As for support for self-governance, I can't really speak to the Canadian case here, but I would just point out that the United States government has spent most of the 20th century trying to identify a policy toward American Indian nations that could deal effectively with the poverty and related social problems that have been all too characteristic—relentlessly characteristic—of those nations through the last century. It has tried shutting down Indian reserves in the United States. It has tried relocating Indian populations to major American cities. It has tried systematic, imposed cultural change.

Finally, in the mid-1970s, under pressure from Indian political activists—and for some other reasons—the federal government turned to a policy called self-determination. Its support for that policy was somewhat half-hearted, but Indian nations responded to it vigorously. They seized the opportunity. They became very assertive in taking control of their own affairs. To date, this is the only federal policy in the 20th century and, I would predict, so far in the 21st—we don't have much time to evaluate anything yet—that has produced sustained, positive results.

No other policy undertaken by the United States government toward Indian nations has produced anything like the positive results that self-determination has produced. I think that in itself is a powerful recommendation.

I'd be very glad to answer questions.

Thank you very much.

The Chair: Thank you.

Before we start, does everybody have the full paper before them?

Go ahead, Mr. Konrad, please.

Mr. Derrek Konrad (Prince Albert, Canadian Alliance): Thank you.

Thank you, Mr. Cornell. It was an interesting presentation.

You mentioned something about sovereignty in your paper. In your opening remarks you talked about “nations” and “indigenous”; you mentioned “tribes” and I think you might have mentioned “bands”. Having used all of those different terms and relating them to sovereignty and self-determination, I would like you to define it for me as it relates to the federal government, because you said the federal government is the main player in relating to the Indian bands, Indian tribes, or first nations, whatever terminology you used there.

Can you define how the government of the first nations relates to the federal government? Is it seen somewhat as a state government or a municipal government, or is it something entirely new? When funds are transferred to these governments, what is the accountability for spending? What types of agreements do they use?

Could you answer those questions, please?

Prof. Stephen Cornell: Yes, I'd be glad to.

I should begin with a disclaimer, Madam Chair. I'm not an attorney, and I probably will abuse what some attorneys would feel was an appropriate response, but I'll give you my best effort at what you've asked.

The United States Constitution identifies three orders of government in the United States: the federal government, the state governments, and Indian nations. Early on in the history of the United States, particularly in the 1820s and 1830s, the U.S. Supreme Court specified that Indian nations were what they called “dependent sovereign nations”. Since then there has been a huge amount of litigation and political and legal theorizing about what exactly that means, and I would say it is still under debate.

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However, it appears that Indian nations occupy a status within the United States different from but somewhat comparable to that of states. States in the U.S. system do not have jurisdiction over Indian nations. The federal government, by the U.S. Constitution, controls relationships with Indian nations. That's why the primary relationship is between those nations and the federal government.

Those nations today have substantial control over their internal affairs. They have to assert that control. The bureaucracy in the federal government tends to fill the vacuum when those nations do not assert control. But they have the right to assert substantial control over their natural resources, over citizenship, and over the strategic decisions those nations make.

Exactly what their rights are tends to change over time according to court determination. For example, there's recently been a Supreme Court decision that said that Indian nations do not have jurisdiction over non-Indians within their borders. What that meant was that those persons within their borders had to be treated in the federal or state courts rather than in tribal courts. But a lot of that is still being worked out.

There are a number of ways in which funds pass to these tribes from the federal government. Some pass to those tribes through direct allocation through the programs of the Bureau of Indian Affairs, which is the primary federal institution administering services to Indian nations. Under laws that were passed in the 1970s, some Indian nations can now contract those services out any way they wish. So if, for example, there's a federal program funded by the Bureau of Indian Affairs, the Indian nation could say “Give us those funds directly and we will administer that program or we will hire someone to administer that program”. That's called contracting.

There also is a provision now for what's called compacting, which has to do with broad block grants to Indian nations that do not specify what program funds can be used for, but simply present Indian nations with a block sum of money that they can then allocate to programs according to their own strategic desires.

Obviously, these three patterns constitute less and more self-governance on the part of Indian nations. Direct administration by the Bureau of Indian Affairs is a minimal self-governance approach. Compacting, in which tribes operate programs that are designed or funded in Washington but administered by the tribes, is a larger degree of self-governance. The major block grant, in which the tribe is actually making the strategic decision about how funds will be spent, is a maximal degree of self-governance. And then we have Indian nations who have their own income streams, in which case the federal government has no control over how they spend those funds.

Several Indian nations recently in the United States have created substantial enough economies to significantly reduce federal spending on programs. In recent years I have had a number of tribal chairs—the equivalent of band chiefs here—who have said their strategic goal is to be dependent on no dollars from the federal government.

Most Indian nations in the United States would like to see federal funding come to an end eventually, because they believe it's a leash that links them irrevocably to the federal government and reduces their own decision-making power, and some of them are very explicitly pursuing economic strategies that are designed to accomplish that. Dollars they make themselves are their dollars.

So those are some of the ways tribes are funded.

What is the level of accountability under these things? I think it varies by program.

We have argued strongly that if sovereignty means anything, it means accepting the consequences of your own mistakes as well as reaping the benefits of your own good decisions. However, there's a learning curve there. Some Indian nations, as they become more and more self-governing, make mistakes. They are like all other human societies that make mistakes. Over time, however, they gain expertise, knowledge, and experience in self-governance.

Our data indicate that over time the quality of their decisions improves. Our hope would be that as the quality of their decisions improves and they become more experienced and gain expertise, accountability would move more directly to those nations themselves so that ultimately they would be in a situation where their future is entirely in their hands. That to us is what tribal sovereignty means.

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The Chair: Thank you very much.

[Translation]

Mr. Bachand, please go ahead.

Mr. Claude Bachand (Saint-Jean, BQ): Thank you, Mr. Cornell.

I'd like to congratulate you for your presentation. It's always interesting to know how notions or concepts that we try to define here, in Canada or in Quebec, are interpreted a bit differently in a country like the United States.

Can you hear me?

[English]

Prof. Stephen Cornell: I'm afraid I missed the first part of your question. I was on the wrong channel here, but I have the English now.

[Translation]

Mr. Claude Bachand: I wanted to congratulate you for your presentation because it's interesting to see that concepts we develop here have a different meaning in neighbouring country such as the United States.

I'd like to clarify a few things that you said up until now. You know that here, in Canada, the Crown has a privileged relationship with native people, what we call a trust relationship. As far as I know, in the States, Washington plays the same kind of role. Here, self-government agreements are often tri-partite; Ottawa has to sign, and so do the native nation and the province.

First, I'd like you to clarify the role played by the different States in the United States. Do you mean that a State does not have a say, and that only Washington can negotiate directly with the native nations to come to an agreement, whatever the State thinks about that? This is my first question.

Here is the second one. You mentioned a policy of self-determination developed by Washington. I think I heard you say that in the States, Indian nations have the status of dependent sovereign nations. This is a strange kind of status. Here, the notion of sovereign State is associated to independance.

I also believe you said that since this policy has been implemented, it tends to change according to Court determination. The same thing happens here in Canada; the Courts play a key role in the evolution of a number of concepts. As far as sovereignty is concerned, it's a concept that is taboo here in Canada, because some provinces are sovereignists and want to be independent. But it also concern First Nations. So for us, these issues are important.

So, would it be possible for you to send us the American government policy on self-determination? In Canada, some people are in favour of self-determination for First Nations, but it is a concept which is more limited than self-governement because, in fact, there is no sovereignty.

Could you please try to tell me what is this status of dependent sovereign nation that Indian nations have. It is a bit difficult for me to know what it means, because I am sovereignist.

[English]

Prof. Stephen Cornell: It's hard for all of us to understand this. Yes, I'll do my best to explain it to you.

You are quite right about the fact that it is very different in the United States. The U.S. Supreme Court has determined that the United States Congress, the federal legislature, has what they call “plenary power” in Indian affairs, which basically means the federal government can do anything it pleases in Indian affairs.

The primary constraints on the federal government in Indian affairs have been: (1) moral constraints—the fact that there are established obligations solemnly entered into in the treaty process, which the federal government has taken seriously; and (2) public constraints—a substantial degree of support for Indian nations from the U.S. public. Those sorts of things have constrained the exercise of federal power, but that federal power is pre-eminent in Indian affairs.

The states have very limited powers in Indian affairs, and the powers they do have tend to be powers that have devolved to them through acts of the federal government. I'll give you an example that may clarify this.

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Today, as you may be aware, there is a vigorous gambling industry in the United States on some Indian lands. It's an industry that has been very successful for a small number of Indian tribes. In 1988 the U.S. Congress passed a piece of legislation called the Indian Gaming Regulatory Act, which specified that Indian nations could enter into only those kinds of gambling activities that were legal in the states where they were located. This act was in part a response to pressure from states to exert some regulatory power over Indian nations that were acting on the basis of their own sovereign powers to enter into the gambling industry. In that act, Congress essentially limited tribal sovereignty and forced tribes to negotiate with the states. So that increased state power vis-à-vis Indian nations, and decreased tribal power vis-à-vis states.

That's an example of ways the states have gained some control over Indian nations, but the control the states exercise tends to be quite limited, in acts like that and in a few court decisions that have said for various reasons that individual states have certain kinds of jurisdiction in what's called “Indian country” in the United States—basically reservations, reserve communities.

So the state power is very limited, but it changes over time. I would say in the last two decades the trajectory has been gradual increases in state power. There is a process in the United States underway, which you're very familiar with, a process of devolution of power from the federal government toward the states. This has been a process of great concern to Indian nations because it raises the issue of what powers the states have over those nations. Some of these changes currently happening in this tripartite set of relationships are because of that devolutionary impulse on the part of the federal government.

Sovereignty—and I've had a few people in meetings with first nations in Canada describe sovereignty as the “S” word that we may not raise—is a complex term in the United States. It's clear it means different things there from what it means here. It is not viewed in the United States, vis-à-vis Indian nations, as a zero-sum game. It is not all or nothing. There are degrees of sovereignty.

There are certain areas in which tribal sovereignty is substantial—for example, in control over their own natural resources. Tribes certainly have the power to control what happens to those resources, regardless of what the state says. Now, there are externalities in some of that kind of activity that may have implications for states, and states may enter into litigation to try to control what tribes do, but tribes clearly control their lands for certain purposes.

Tribes control citizenship. They can decide who is and who is not a member of their nation. They have the right to control their own court systems in internal affairs. Dispute resolution is a tribal matter when it is internal to the tribe.

In other words, they have a high degree of sovereignty in certain areas, and lower degrees of sovereignty in others.

The United States government has made clear that the federal government controls trade across Indian nation borders. That's legislation that goes way back to the 1820s and 1830s. What it means is that the U.S. government has the power to regulate a certain amount of economic activity in which Indian nations are engaged. So they have a more limited sovereignty in that domain.

I think it's perfectly permissible in thinking about these things perhaps to lay that term aside and substitute the term “self-governance”, in which case it begins to make, I think, much more sense, in that these nations have the power to govern themselves in certain domains. They have a more limited power to govern themselves in other domains. In some of those cases, the federal government is the primary actor. Increasingly, in some cases states are playing a more prominent role.

What the future holds I don't know. We have one presidential candidate currently running for office who has made clear that in his view, the state's law should be supreme on Indian lands. To Indian nations that is a nightmare. Most states have a simple agenda: get hold of those resources and use them for state purposes.

The federal government and the record in law makes it very clear that state law is not supreme on Indian lands. So clearly, we're headed into a contentious period on that set of relationships.

I hope, Madam Chair, that explains some of the issues here. They are remarkably complex.

The Chair: Thank you very much.

Ms. Karetak-Lindell, please go ahead.

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Mrs. Nancy Karetak-Lindell (Nunavut, Lib.): Thank you very much.

I represent a riding that is 85% aboriginal, which is Canada's newest territory, Nunavut, so of course I'm very interested in the comments you have just made about self-governance. It's too early for us also to determine what differences and what results have been positive or not because it's only been a year and two months.

I can safely say that it's reassuring to hear research stating what most aboriginal people have been saying all along. It certainly sounds like there's finally some data that can back up what people have been saying: that if we govern our own lives, we will make our own mistakes, but we'll also learn from them and learn to deal with our own problems.

I have a couple of questions. You talked about state control over federal control. Do you have any data that shows what bands were more successful in gaining their own prosperous economic development? Were they the ones that dealt directly with the federal government, versus groups that had state and federal dealings? Were the bands that had to go through the tripartite process more successful than bands that had a direct relationship with the federal government?

On page 2 of your brief, in the second-last paragraph, last sentence, you say that a lot of those who left the reservations years ago are coming home. In one of the witnesses' presentations in B.C., one professor said we had to assimilate all aboriginal people, that integrating these people into urban centres and treating them all equally in the Canadian mainstream would be one way to solve Canadian aboriginal problems.

I find what you're saying here totally contradicts that assumption. You say they tried everything and didn't get positive results. Is one of the conclusions that it did not work to try to get aboriginal people to live in the large urban centres and become part of the mainstream?

Prof. Stephen Cornell: In response to your first question, we have recently seen some very productive cooperative relationships between Indian nations and individual states.

In response to your question about whether or not we see any differences in patterns of success, according to whether or not Indian nations have worked with the federal government or with states, my answer would be no. That's primarily because the assertions of self-governing powers by Indian nations historically—by which I really mean the last twenty years—have been vis-à-vis the federal government. Moving the federal government from a decision-making role into a resource role has been a critical feature of most of these success stories. We have not seen a state role that I would call dominant in that process.

However, a lot of Indian nations are located in states. They recognize they have to deal with state governments and state populations. They recognize that many of the resources they deal with, such as water, air, and wildlife populations, ignore jurisdictions, so they have to enter into co-management agreements with states.

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Some Indian nations have been very creative and successful in building cooperative relationships with states, particularly in the area of resource management, in some areas of law enforcement, and things such as foster care for children and things of that sort, where they have been able to work out cooperative agreements with the states. Typically, the ability of the Indian nation to demonstrate capability has been crucial to the success of those efforts. Some have done so in dramatic fashion.

The Jacarilla Apaches in New Mexico have a significant elk herd on their reservation. They were managing that herd. The State of New Mexico was concerned about how they were doing it. The State of New Mexico went to court to try to get them to shut down their elk operation. In the course of the discovery portion of the litigation, the State of New Mexico discovered that the Jacarilla Apaches had superior science to the state data, and in fact were doing a better job of managing their elk population than the State of New Mexico. The state withdrew its litigation and entered into a cooperative game management relationship, in which the state and the tribe now work together to manage elk populations.

That's an example of a case where a tribe was assertive. It asserted self-governing powers. It backed up those self-governing powers by building an effective capacity to manage wildlife. It turned out their capacity was superior to that of the State of New Mexico. The result was a strong cooperative relationship between state and tribe.

We're seeing more and more of that now. As tribes become more assertive in self-governance, they quickly realize they have to work with states, and if they can approach states from a position of capability, they can get respect from states.

On your second point, about assimilation and urban relocation, there's a kind of logic to an argument that says if we shut down Indian lands and force everybody to move into cities, the problem, by definition, would go away. It would become an urban poverty problem instead of a rural poverty problem. That's what happened in the United States in the 1950s and 1960s, when the federal government put enormous effort, sometimes using coercion or thinly disguised coercion, into moving portions of Indian populations into cities. Certainly some people succeeded. Some assimilated and became productive participants in urban economies, but a great many did not.

What we have in some cities as a result of that problem today are Indian ghettos with significant urban populations deep in poverty, like other inner-city populations in the United States. So it may have solved a problem, in the sense of moving the location of the problem from one place to another, but it also left a very embittering legacy among many Indian peoples, because of course what lay behind it was an effort to simply say their way of life and culture and so forth were not worth preserving and they needed to become like us. That has been a predominant spirit in much of the federal government's policy toward those peoples since early in the 19th century. So it was counter-productive in that way as well.

We have data showing that significant numbers of Indian people choose to move to cities. In some cases, it's because they want to live in more cosmopolitan places, like many people. They choose to move, in some cases, because there's no economic future on their lands. In cases like the Mississippi Choctaw Indians and some others, we're seeing that when vibrant economies begin to be put in place on native lands, some of those who left in the past tend to come back. Not everyone does. The majority of the American Indian population in the United States today is urban. The reservation population is a minority of Indian peoples. And a significant portion of that urban population has moved completely by choice.

I believe there will always be a significant population, and not simply an elderly one, in the United States that wishes to remain on Indian lands and build successful societies there. My own sense is that the sort of assimilationist solution only works as a high-pressure coercive solution, and then it shifts the problem to someone else and frees up resources, which clearly there is a great demand for.

So I believe that's what the U.S. record indicates.

The Chair: Thank you.

Mr. Konrad, please. We're into our second round. Then we'll go to Mr. Finlay and Mr. Bachand.

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Mr. Derrek Konrad: Thank you, Madam Chair.

You indicate that the Pueblo have a theocracy. In Canada we have Indian people who practise traditional religions and probably as many again who are Christians. I don't how many or what other religions they may practise. But to institute a theocracy says that one religion is dominant, and it places the rest in a secondary position. Can you explain how that works in a society like the United States, where there's supposed to be a clear separation of church and state and people are free to make those decisions themselves? In fact, if I remember correctly, what the United States was basically founded on was many people fleeing the forced imposition of one religion on another.

Prof. Stephen Cornell: I would have to defer to someone of my attorney friends to ask whether or not cases such as Cochiti Pueblo and other theocracies—there are several in New Mexico—have been litigated as separation of church and state cases. To my knowledge, they have not. I'm not convinced that this issue has entered the courts. In other words, I don't think the courts have spoken on whether or not Cochiti Pueblo governance violates a church-state separation. I'm not sure that's come before the courts; it may have.

There has been litigation over some of the actions of some of these governments. For example, at Cochiti Pueblo the only people who are eligible to serve in governing positions are men. That has been true of Pueblo governance since the Spanish arrived; in other words, it is centuries and centuries old. There has been some litigation that has supported the right of the Pueblo to govern itself in its own fashion. My guess is that there'll be further litigation on issues like that. I doubt that we've seen that fully resolved.

There was an Indian bill of rights passed in the United States that addressed some of these issues, and part of it was precipitated by Pueblo experience. I think we've not seen the end of that. What I can tell you about the Pueblo case, however, is that the enormous strength of Cochiti Pueblo governance is its great legitimacy with the Pueblo people. What it has done is that it has managed to produce good governance via a set of tools which, in general in the United States, we would view as unlikely to produce good governance.

We tend to be very aggressive in the United States about promoting our own institutions as solutions to other people's problems, and therefore, I think, we've often looked at some of these indigenous forms of government as inevitably unsuccessful. But when you get doing the research what you discover is that it is less the particular form of government that matters than how that form of government does two things. One, can it deliver the goods in terms of good governing activity? Two, does it have the support of its own indigenous population?

The big difference we've seen in the U.S. is between those governments that have support and those governments that do not, and those governments that appear to have the ability to effectively deliver the goods, if I can put it that way, and those that don't. The tricky part is in fitting that together.

There are some situations where indigenous traditions were invented to solve problems which no longer are the problems these nations face. Therefore you can have a traditional indigenous government that is simply incapable of good governing under the changed conditions of contemporary life. But there, the task for the Indian nation is to invent governing solutions that still resonate with people's notions of how authority ought to be organized and exercised.

Cochiti Pueblo has made adjustments in its governing system to take account of a fast-moving, legalistic, very different world in which the Pueblo must operate, but it has retained critical elements of that government, and those seem to buy it legitimacy, in a sense, with its own people, so the government gets support.

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On the particular issue you raise, I'm afraid I cannot tell you the state of the litigation on separation of church and state, or in fact on some of these other issues, such as the eligibility of women to serve in governing positions.

Mr. Derrek Konrad: With the permission of the other members, may I ask a brief supplementary to that?

The Chair: Seeing as I've been giving a couple of minutes of leeway, go ahead.

Mr. Derrek Konrad: Thank you.

In the case of the Pueblo, then, I take it that if a person is not part of—I don't know what you would call it—a priesthood or whatever, that person would not qualify to be a part of their government. You can answer that with just a yes or a no.

Prof. Stephen Cornell: Well, unfortunately it's a little bit more complicated, and I'd better just give you a quick summary version.

Mr. Derrek Konrad: Perhaps in the next round—

The Chair: That's okay. Go ahead, Mr. Cornell.

Prof. Stephen Cornell: The chief religious leader, the cacique, is the ultimate authority. The cacique chooses those who serve in the governing positions each year for 12 months, and then picks a new set. Everyone who has ever served in one of the top six governing positions becomes a lifetime member of the council, the legislature, the tribal council. None of those, necessarily, is a priest; they all are governors. But the ultimate authority lies in the hands of their religious leader.

The Chair: Thank you, Mr. Konrad.

Mr. Finlay, please go ahead.

Mr. John Finlay (Oxford, Lib.): Thank you, Madam Chair.

Professor Cornell, it's a pleasure to have you with us and to have you explain this so clearly for us.

It seems to me that you would be familiar with the Report of the Royal Commission on Aboriginal Peoples. It seems to me that what you're saying and what you've discovered is largely common sense and is supported by history around the globe if we talk about self-governance and how people have come to move from the tribe to the nation to the state, etc.

It seems to me that the four bases in the aboriginal peoples report were that in dealing with first nations we had to recognize that they existed, respect the fact that they existed, and develop sharing and responsibility. It seems to me that what you've discovered is that if we're going to have economic development among aboriginal people those things have to take place. Our job, of course, is to see how we can do that. I'd like to think we're getting there with Nunavut and with Nisga'a and with some of the other agreements we've made.

In your second paragraph, you say that you spent much of the last 15 years engaged in this research among Indian nations in the United States and “to a lesser extent, First Nations in Canada”. Would you give me some idea of what that means, of what you have done and to what extent, and how much it lines up with what you're telling us about the American experience?

Prof. Stephen Cornell: Yes. The work we've done in Canada has been non-systematic. I think that might be the best way to put it, Madam Chair.

For example, I have done some consulting work with a few first nations, with the Hatchet Lake Band in northern Saskatchewan, for example. I've made presentations to a number of first nations. We've done some what we call “executive education workshops” for first nations leaders. This is something that the Harvard project has spent a good deal of time doing: taking these research results and translating them into a set of learnings for first nations leadership and spending an intensive two or three days working with Indian leaders on what the implications of this research are.

We've done a few of those workshops in Canada, and I've addressed a number of Canadian first nations groups. It perhaps is a little generous on my part to call it “research”, but we're relentless researchers and we're always trying to ask more questions about the various cases we come in contact with.

• 1155

I would say that in all of that work my very strong sense is that if we were able to do systematic research in Canada of the sort we did in the United States, we would find comparable results. I think they would vary in detail because the situation here varies in detail, but I have not learned anything in the last few years that would lead me to think we would find something very different.

Mr. John Finlay: Thank you very much.

Do I have any more time left?

The Chair: Yes, you have lots of time left.

Mr. John Finlay: We've made some significant tripartite agreements, such as the northern Quebec agreement, and we have some in Ontario too, that involved changing river systems because of hydroelectric power and so on. Part of those agreements involved co-management regimes that were to look after the natural resources and so on after the plans had been completed and people had had to be moved, etc. Most of these people report once a year to Parliament because they are a tripartite group, and by and large the first nations members are not very happy with the outcome. I suspect it's partly because it's tripartite—federal, provincial, and first nations. They feel they are only one-third, and it appears that the other two levels of government gang up on them and they don't get their way and the things they want to have happen don't happen very often.

I suppose we should do something about it. Whether we should change the personnel or the balance on these co-management agreements so that they are “co-” and the first nations have at least half so that every now and then they will win a vote or get something done, I'm not sure. Have you any comments on that?

Prof. Stephen Cornell: I don't think there's any reason to believe that the tripartite nature of these relationships is the problem. Certainly in the United States we've seen co-management agreements that involved the federal government, a state, and a tribe, or even multiples in terms of states and tribes. Particularly in the area of water and wildlife, there are a number of co-management agreements that involve multiple stakeholders and sometimes governments below the level of states. So we have some in which municipalities are participants.

I have to admit to you that we've done no systematic study of such co-management agreements, but we've talked to a number of tribes about them, and we've looked at some individual cases. My sense is that the native view of these agreements tends to be driven much more by the quality of participation than by the number of different entities that are involved. A number of native groups, where they feel they have been an equal participant in decision-making, view these things as successful even if they have not necessarily achieved exactly what the native group wants. So my sense is that the quality of participation is more important than the array of stakeholders involved.

The Chair: Thank you very much.

Before I go on to the next round, I just want to ask some very short questions in order to put certain points on the record. I think you could quickly answer these.

I want to know if in the United States there is any equivalent act to the Indian Act in the federal jurisdiction. I also want to know who owns reservation land in the States. Is it the federal government or the bands or tribes themselves? Where you have a situation of native people moving to urban centres, is there is any retention of jurisdiction over this population in an urban setting?

Mr. Derrek Konrad: Could I ask a quick question?

The Chair: Okay. We're of the same mind. At least we're going to get it on the record, and now you can do the exploration of those answers, Derrek. Thank you very much.

Go ahead.

Prof. Stephen Cornell: Madam Chair, I have to admit to you that my knowledge of the Indian Act is insufficient to state categorically whether we have an equivalent piece of legislation. There have been a number of pieces of legislation that have blanket applicability across Indian country. I don't believe any of them would achieve quite that status. It illustrates the fact that two things have been much more important, in a way, in determining the current status of Indian nations, and that is the original set of treaties and U.S. Supreme Court decisions, both of which have had very substantial impact on their current status, probably greater impact than any single piece of legislation.

• 1200

With regard to the second question, who owns reservation lands, most reservation lands are technically held in trust by the federal government for Indian nations. I think one would have to say that the ultimate decision-maker under that arrangement is the federal government, and perhaps that's illustrated by the fact that Indian nations may not alienate their lands without federal approval. That is perhaps the area of Indian land use where the federal government has drawn the line. Up to that point Indian nations have substantial freedom in what they do with their lands, but they may not alienate them.

That trust relationship is a bit like sovereignty. It has also been an object of substantial litigation and legislation in the United States. But the federal government by that definition is the holder of federal lands on behalf of Indian nations. However, it tends to treat those lands as Indian lands. Certainly tribes view those lands as their lands. As you can see, yes and no are hard answers in the Indian area.

As far as maintaining jurisdiction over urban Indian populations is concerned, generally no, but urban Indian populations, as long as they remain enrolled members of their tribes, have the right to vote, in most cases, in tribal elections. Some tribes have decided not to allow them to vote. Tribes have had the power to decide what is the condition of the franchise. In most cases urban Indians who are enrolled members of tribes can vote in tribal elections and so forth and in other referenda that are placed before the tribal population. But the tribe does not exercise significant civil or criminal jurisdiction over those persons when they're resident in urban areas.

The Chair: Thank you.

Mr. Konrad, please.

Mr. Derrek Konrad: Is it supposed to be Claude's turn or mine?

[Translation]

Mr. Claude Bachand: Is it not my turn?

The Chair: Excuse me Mr. Bachand. It's your turn.

Mr. Claude Bachand: My first question is about the Royal Commission.

The government had established a Royal Commission to study the impact of some decisions on First Nations, and to know what were their living conditions. In Canada, the Royal Commission determined that there were about 50 to 70 nations, comprising some 625 communities. There are about half a million Indians living in reservations and about half a million outside.

My first question might be useful to make a few comparisons. Could you give us a few statistics about the American natives? In Canada—Mrs. Barnes mentioned that briefly—we have this Indian Act. In fact, there are two systems: the Indian Act system, according to which the government is in charge of everything, and the self-governance system which includes territorial rights.

So there are two systems. The first one dates back to about a hundred years and unfortunately, as far as I am concerned, it applies to 90% of native communities. Some of them managed to get away from that when they passed an agreement, which is usually a tri-partite agreement, with the various levels of government.

So here is my other question, Mr. Cornell. Does the same system apply to American natives in the States? Is everybody treated equally in law, or do some nations have passed agreements whereby they have the status of dependent sovereign nations, as you say, while others are still ruled by Washington?

There is also a notion that I would like you to clarify. It's the nation building concept. I just saw that mentioned in your document. It's a concept which is very controversial here, in Canada. Every nation, every people is involved in nation building.

But what I see in you document is rather surprising; you say that you encourage nation building within native communities. How can a group of White people or a research done by White people—because I don't think you have any native roots—can encourage nation building within native communities? As far as I am concerned, nation building starts within the nation itself.

How can you, since you are White, encourage nation building in the native communities you were talking about earlier on, or in other regions of the United States where the culture and the approach is often very different?

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Are you telling us that you have found a way to encourage nation building in native communities coast to coast in the United States? This is also a problem for us, here.

[English]

Prof. Stephen Cornell: In response to your first question, there are approximately 500, or something more than that, Indian nations in the United States. Of those, 220 or so are in Alaska.

Mr. Claude Bachand: Are in Alaska?

Prof. Stephen Cornell: Are in Alaska. So in the lower 48 states there are something like 280 Indian nations.

In terms of the number of people, it much depends on how one defines an American Indian. In terms of the enrolled population, it's probably something over one million. Not all of them are resident on reservations; perhaps half of those are resident on reservation lands. But I'm a little bit in the dark on that, because it's been ten years since the last decennial census, and who knows when we'll see the results of the one that's just being completed now.

In terms of relationships to the federal government, Indian nations' relationships to the United States government are first and foremost based on treaties, which did vary across nations but which generally have ended up placing Indian nations in a comparable position. One of the reasons our research had some power is that we were able to in a sense control for political relationships.

Federally recognized Indian nations in the United States—and I'll say something about that in a moment—occupy a common political position vis-à-vis the federal government. Most laws passed that have explicit consequences for Indian nations apply to all federally recognized Indian nations. Most—and I have to be careful here, but most—court decisions in the federal courts, including the Supreme Court, that have explicit consequences for Indian nations apply to all federally recognized Indian nations.

That term, “federally recognized”, points to the fact that there are some Indian nations in the United States whom the federal government does not recognize. The consequence of that is it does not recognize them as having the right of self-governance that federally recognized tribes have. It does not recognize them as having rights to services provided by the federal government, by the Bureau of Indian Affairs.

A few of those tribes are recognized by individual states. There are some reservation lands in the United States that are state lands, state reservations. But in both those cases, the numbers of non-federally recognized tribes and state-recognized tribes are very small in comparison to the 500 recognized tribes. In other words, it's not...I won't say it's not a significant population. It's enormously significant to its members. It's not a significant population from a research point of view.

So in general you could say the relationship to the United States is common across Indian nations. There is an exception, which is Alaska, and this has been the subject of litigation within the last two years. There is only one Indian reservation in Alaska. Most Alaskan tribes do not have Indian lands over which they exercise the same degree of jurisdiction the tribes in the lower 48 states exercise.

That's been a subject of a recent Supreme Court decision. There's a legal term in the United States, “Indian country”, which refers to lands over which Indian tribes exercise jurisdiction. The question before the court was whether or not most Alaskan tribes were Indian country. The court's response in that case was no. So Alaska occupies a somewhat anomalous and unique situation.

On your last question, about nation-building, three of us currently direct the Harvard project, one of whom is a native person, but that's really irrelevant to the case. We have carried out a body of research that we believe produces practical implications for Indian nations. As researchers, we have undertaken to convey those results to those nations in accessible, usable form.

• 1210

One of the key results and insights of that research—and this may appear in my statement—is that, like most human societies, Indian societies face a common set of governance problems, or one might say a common set of problems in the process of building societies that work. Our research indicates though that the solutions to that set of problems tend to vary across Indian societies, because their circumstances vary, and most important, because their cultures vary. So it is a “same problems, different solutions” situation.

When we come in and talk to Indian nations—which we do a great deal of, by their invitation—we try to help them to understand the nature of those problems and try to change the conversation about economic development so that it begins to focus on issues of capacity, accountability, responsibility, and how tribes themselves begin to deliver a situation in which development can thrive.

We tend not to say “And here's exactly how you should do it”. What we can say to them is “This is how this nation has done it; this is how this nation has done it. Several nations have done it this way. There is an array of options there that succeed in meeting the challenge, but you have to decide what fits with your circumstances, your particular culture, your way of looking at the world, and your strategic vision of your own future.”

In other words, I think the way to view us is as, in a sense, a source of information, which comes out of the research, and as facilitators in terms of trying to help Indian nations focus on the key issues that stand between them and sustainable economies. But the actions they take tend not to be actions we tell them to take; they're the decisions they come to as a consequence of that information and that process.

The Chair: Ms. Karetak-Lindell.

Mrs. Nancy Karetak-Lindell: Thank you.

I'd just like to recap a bit of your answer to me. What I was trying to get out of that was to show that in most cases, I feel, aboriginal groups are trying to work in partnership with the people around them for the success of that geographic area. I was very pleased with your answer.

I have a question on taxes. Here in Canada we have more than one group of aboriginal people: the Indian population, which we call first nations, and Inuit. They all have different land claims with the federal government. Our people in Nunavut have their own land claims. Mr. Finlay mentioned that the people of northern Quebec have their own agreement. Some groups pay taxes. All Inuit pay taxes, but people living on reserves don't pay taxes. So we have that complication also in Canada, where we can't treat everyone the same, because they have different rights per se in paying taxes.

So what I'd like to know is, in the U.S., are they exempt from paying taxes when they live on reserve versus being in the urban centres? Is the Indian population all the same in the U.S.? You have, as you said, federally recognized Indian nations. Would that cover all aboriginal people in the U.S. other than the state-recognized ones or ones not recognized?

Prof. Stephen Cornell: I'll come to the last part of that question first, Madam Chair.

There are really two criteria. You have to be a federally recognized Indian nation, and then you as an individual have to be an enrolled member of that nation. Enrolment is another fairly complex concept, but a good general statement of it is that the federal government specified Indian rolls shortly after the turn of the century, in the early 1900s, and you have to demonstrate a certain degree of descent from someone who is on that roll to be an enrolled member of the tribe.

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The Indian nation itself determines what degree of descent you have to identify. So for some Indian nations, you would have to show that you are one-half descent, or one-half blood. For some it might be one-quarter. A few Indian nations recently have moved to any demonstrable descent qualifies you. But those nations control that.

Federally recognized Indian tribes include only those aboriginal people who are enrolled members of those tribes, so there are really two sets of criteria you have to meet. So there are Indian people in the United States who are not enrolled members of federally recognized tribes or enrolled members of any other tribe, who in a sense have no status. I suppose that would be the equivalent Canadian conception.

In terms of taxation, Indians in the United States pay personal income taxes the same way I do, and it doesn't really matter where they're resident. Indian tribes do not pay taxes on their own revenues—that is, the money they make out of enterprises. So Indian tribes are exempt from state and federal taxation, but tribal members are not.

Mrs. Nancy Karetak-Lindell: [Inaudible—Editor]...between Canada and the U.S.

The Chair: Mr. Konrad and then Mr. Finlay.

Actually, excuse me. You still have a minute left, Ms. Karetak-Lindell, if you want another question. I didn't check the clock. It's okay?

Go ahead then.

Mr. Derrek Konrad: Thank you.

In the last round we talked a bit about the theocracy, and you basically stated that the end justifies the means.

Prof. Stephen Cornell: I'm sorry?

Mr. Derrek Konrad: I said last round we talked a bit about the theocracy, and your answer basically boiled down to the end justifies the means—that you have a benign dictatorship and it works, so that's good in the United States.

In Canada the issue of land held in reserves is a large issue. One of the things that brought it to our attention recently was a reserve in B.C. called the Musqueam. I don't know if you've ever heard of it. They have leaseholders who have lost all of the value in their homes and may be burdened with the debt for the rest of their lives as their lease payments go up by—I forget what it is—in excess of 1,000%. Of course nobody can afford it, and there's a court case winding its way up through the various appeals levels now trying to overturn the decision the band made.

That's an issue. It makes it very difficult, I would presume, for the Musqueam to develop a land use policy that will sell to anybody when they make those kinds of arbitrary decisions and bankrupt an entire subdivision full of people.

You said in the United States, Indians may not alienate their land. Is that a 100% restriction, or is there a method by which land can be alienated, or surrendered, as we call it here in Canada?

Prof. Stephen Cornell: It certainly can be alienated, but only with federal approval. In other words, if I were an Indian nation, I could approach the Secretary of the Interior, who's the federal official with ultimate responsibility below the President, and say “We want to sell this portion of our reservation.”

Historically, I don't know of a case where that has been approved. In fact I don't know of a case where it's been proposed by an Indian nation. Certainly it's possible to alienate land that way, but the line is drawn that you have to have federal approval to do it.

Mr. Derrek Konrad: The largest investment and the largest asset most people have is their own home. On Indian land it's not possible to have a certificate of title. In Canada we call the nearest thing we can have to 100% ownership “fee simple”. I suppose that's the same terminology you have in the United States.

Prof. Stephen Cornell: Yes.

Mr. Derrek Konrad: You are issued a certificate of title. I don't know whether you still use the deed registry system in the States or not. But on reserves you can only get a certificate of possession, which means you possess the thing, but you don't own the thing. I'm not quite sure what the qualitative difference is there.

• 1220

It's also known that people owning their own homes and taking out second mortgages to finance some business idea that they've dreamed up is a huge economic factor in economic development, not only for an individual but a community, and even a region and a nation. This gets away, maybe, from the research, and maybe it doesn't.

Have you done any research on the possibilities of people being able to take their land out, pay taxes to the band for services supplied by the band, and being able to mortgage their home?

Prof. Stephen Cornell: We've not done any systematic research on that. Reservation lands in the United States vary significantly in the ways in which various pieces of the reservation are held.

There was a move beginning in the 1880s and continuing into the 1920s to individualize Indian lands in the United States. It moved further on some reservations than on others. So you have some reservations where individuals hold title in fee simple to land within reservation boundaries in large numbers and you have other reservations where the tribe essentially is the owner of all of the land. So we do have situations where individual Indians can alienate individual pieces of land because it's held by them, not by the tribe. It's not held in trust by the federal government in the same sense.

We also have a growing number of cases in the U.S. now where tribes are experimenting with home ownership, where the land itself, if it's tribally owned land, may be under a long-term lease but the house is owned physically by the homeowner and is usable as equity for a loan and various other things.

This is really just beginning to happen on a large scale in the U.S. and we've not yet had a chance to look at it systematically and look at what advantages and what a difference it might make. Certainly on the face of it it should make a very big difference in the ability of individual Indians to raise money to, for example, start a business, a small business or something along those lines. But I don't have anything systematic to offer you.

Mr. Derrek Konrad: Are you going to be looking into that?

Prof. Stephen Cornell: I think we are going to be looking into that.

Madame Chair, if I may, I would like to say one thing in response to your opening comments, also, about the lease arrangement. This is not an unusual kind of story for me to hear. We have cases like that in the United States, where an Indian nation's government makes decisions that on the face of things are unfair, and have the effect of reducing economic activity and discouraging investors. My only remark would be that it doesn't seem to be to distinguish any of these tribes—for example, from the city of Chicago, where I lived for nine years, and which continually made decisions that seemed to me to be anti-development of anybody's interests other than the interests of the person making the decision.

This is where I think there's a learning curve in Indian country. If you make a decision and the next thing you know all your potential investors have fled, the chances are fairly good that you won't make the same decision a second time. I have substantial faith in a steep but time-consuming learning curve on the part of Indian nations in exactly the sorts of areas you just described—that they will make mistakes and hopefully will learn from them.

The Chair: Mr. Konrad.

Mr. Derrek Konrad: I have one quick question.

The Chair: You've had seven minutes right now. Is it the will of the committee for me to allow one more question?

Mr. Derrek Konrad: This is related to something Nancy asked.

The Chair: Go ahead, Mr. Konrad. You're in my good graces today.

Mr. Derrek Konrad: Would your Hawaiians be in the same category as Canada's Inuit?

Prof. Stephen Cornell: Hawaiians? No.

A voice: There are 60 degrees difference.

Some hon. members: Oh, oh.

Prof. Stephen Cornell: The situation of native Hawaiians is distinct by virtue of the fact that there is no treaty relationship there, and they're currently—

Mr. Derrek Konrad: It's not there either.

Prof. Stephen Cornell: It may be comparable in that sense. I don't know enough about the Inuit situation to say.

There is currently a discussion going on in the United States about whether native Hawaiians should be treated as if they were an Indian nation, but I think that discussion is in its early stages. It may end up that they are treated like other Indian nations, but at the moment I think native Hawaiians are seen in the U.S. as not being comparable either to Indian nations or to Inuit peoples of Alaska.

The Chair: Mr. Finlay, please go ahead.

• 1225

Mr. John Finlay: You said, sir, that 220 of the 500 plus Indian nations in the U.S. are in Alaska, and you said that there are no reserve lands in Alaska. Are all of them covered under the same treaty? What's the situation?

Prof. Stephen Cornell: The Alaska case is very complex. It's not that there are no reserve lands in Alaska. It's that the federal government, in 1971, passed a law called the Alaskan Native Claims Settlement Act, which resolved a massive native claim on lands in Alaska and resolved it in a particular way that did not establish reservations. Instead it established a set of native corporations as the primary holders of those lands. And the native villages in Alaska have very small land holdings, typically—not all of them are small, but many of them are—which do not qualify as reservations. That is, they don't exercise the same quality of jurisdiction over them that Indian tribes in the lower 48 exercise.

The Alaska situation has changed relatively recently. There was one Indian reservation in Alaska prior to the 1971 act that continues today—that's the Metlakatla reservation. But Indian land holdings operate under a somewhat different legal regime in Alaska from that in the lower 48 states. This doesn't mean they do not hold lands in Alaska. They do. It's a matter of what control they exercise over those lands.

Mr. John Finlay: Thank you.

The Chair: You have lots of time, if you'd like, Mr. Finlay.

Mr. John Finlay: No, thank you.

The Chair: I noticed that you gave us this statement. I'm sure you put lots of effort into preparing this statement for us, but because you didn't read through it I need you to know that it doesn't go into the permanent record unless my colleagues wish it to be appended to the record.

[Translation]

Mr. Claude Bachand: I did not understand the translation. Can we have a translation?

The Chair: Of course.

Mr. Claude Bachand: Can I ask some questions?

[English]

The Chair: Okay.

[Translation]

Mr. Claude Bachand: Mr. Cornell, a prominent Canadian judge, Judge Hamilton, has done a brilliant analysis of the notion of certainty, as you say, and of the extinguishment of rights. It's a social and cultural problem. White people tend to believe that the land belongs to them. For instance, if we buy a piece of land, we always ensure property is recognized and registered by a notary. In the native communities, people tend to believe that they own the land collectively. For them, the land belongs to everyone. This is where the notion of certainty is a bit problematic.

There are two ways out of it: either we abolish native rights, which creates some certainty because we then are sure that natives won't be able to claim anything again; or we sign land claim agreements, which are like treaties or contracts passed with companies.

Could you tell us whether in the States, you had to deal with issues such as the extinguishment of rights? Here, we have problems, specially in British Columbia. A number of companies are starting to say that where the cases have been settled by the Courts, there is so much uncertainty that they don't want to locate there.

Did the same thing happened in the United States? Have you ever asked for rights to be extinguished? Are you still taking the same approach or, now, do you bet only on the sovereignty you were talking about earlier?

[English]

Prof. Stephen Cornell: The problem of certainty is the key problem here. Obviously any investor has to have certainty or would prefer certainty before choosing to invest. We do have this problem in some situations in the United States.

There have been some efforts in the U.S., not by Indian nations, obviously, to extinguish native rights. There have been cases where the degree of uncertainty has inhibited investment. But in general I think one of the distinctions between the U.S. and Canadian situations is that there is a much higher level of certainty in the United States than there is in Canada about the status of indigenous lands, so we don't encounter the uncertainty problem to the same extent you do. Typically, we know who exercises control over this body of land and what the degree of control is that they exercise.

• 1230

Some people, in wanting to invest in Indian lands, have asked for waivers of some degree of native sovereignty, let's say. They've asked for some guarantee about a limit on native jurisdiction. Some Indian nations have been willing to make typically temporary arrangements in which they agree, for example, to third-party arbitration about an issue having to do with property rights, or they agree to submit to a particular court. We see those as acts of self-governance on the part of that Indian nation. One act of self-governance is to say that we agree to submit this particular issue to the decision of a third party on whom we and you agree, and we are seeing examples of that in the United States in some cases where the certainty issue is at hand.

Other than these recurrent political efforts to simply extinguish Indian title to lands, extinguish reservations in the United States, though, we don't see a lot of proposals from investors for that sort of thing. I think they recognize that they have to deal with the property rights record as it currently exists, and that record is pretty well established. But we do get these political movements, particularly on the part of certain constituencies who have an interest in a natural resource, appealing to Congress to simply extinguish Indian title and open up these lands to the market. None of those movements have made very much progress, at least in the last fifty years.

[Translation]

Mr. Claude Bachand: I have a last question, Mr. Cornell: I thought I heard you say that one of the presidential candidates in the States wanted some kind of decentralization, and was in favour of giving more powers to the States. You said that it was a problem for native nations. We have a bit of the same problem here in Canada. Native people appealed to the Queen when the Canadian Constitution was patriated and, right now, they protest when some powers are divulged to the provinces. If I understand what you are saying, the same thing is happening in the Sates.

Can you tell me which of the presidential candidates is in favour of decentralization in the United States?

[English]

Prof. Stephen Cornell: The candidate who responded in an interview by saying he thought state law should be predominant on Indian lands was George Bush.

Mr. Claude Bachand: George Bush.

The Chair: I think you have a room full of politicians with political curiosity.

Ms. Karetak-Lindell, please.

Mrs. Nancy Karetak-Lindell: I don't have a lot of questions, but maybe more a comment.

You talked about the elk preservation farm, or whatever, and then here on page 4 you talk about timber resource management and how it was proven that these tribes were better managers of their own resources. That's very encouraging to me, because we have a lot of co-management arrangements within the land claims agreements we have done in Nunavut and then with the Nisga'a treaty, where in all the arrangements it was always stated that there was a base you couldn't go below, but you could always enforce more stringent regulations on the resources. I think the statements you have made are in recognition of what a lot of aboriginal people have been saying—that we know how to manage natural resources; give us an opportunity to exercise them in partnership with the national laws.

A good point, also, that I find with these is that in our land claims agreements and self-government agreements we are willing to work within the Constitution, within the national laws, and be part of the country, not a separate entity with our own laws.

• 1235

I'm very interested in all the comments you have made here. I'll certainly share them with people I know who would be very interested in this.

Thank you.

Prof. Stephen Cornell: Madam Chair, may I make just a brief comment?

I appreciate your remarks. I think one thing to underline in resource management is that the reason, at least in our research, it appears that Indian nations are better at managing their resources than outsiders has to do with the fact that they're their resources. It's not a fact that they are somehow inherently better resource managers; it's because of that link between decisions and their consequences. The piece that often is missed, I think, is adding to the right to manage those resources, the capability to manage them.

We have a case, for example, in the United States of an Indian nation that took over management of its wildlife, opened the hunting season and proceeded to extinguish the wildlife, because it did not put in place a regime for the control of the hunting of the wildlife that would preserve it. It acted as if it were a century ago, when the wildlife was in essence endless in some colloquial sense.

So that right has to be backed up with a capable set of governing structures that can.... This is where that “can you deliver the goods issue” comes out. I appreciate the fact that this sort of thing resonates with your own experience. But I would just emphasize that there are these two pieces to the research that I think have to be taken as an integrated piece. The right and the capability tend to have to go together.

Thank you, Madam Chair.

The Chair: Thank you.

May I have an indication from committee members here about who would like to ask questions? Mr. Konrad, do you have another set of questions?

Mr. Derrek Konrad: I'd like to.

The Chair: Okay. Ms. Karetak-Lindell? No. Mr. Bachand? No. The chair has just a few things at the end, then. Go ahead, Mr. Konrad.

Mr. Derrek Konrad: All right.

We have a Department of Indian Affairs and Northern Development here in Canada. You have the Bureau of Indian Affairs in the United States. There's a lot of discussion about doing away with the Indian Act and shutting down the Department of Indian Affairs and transferring the responsibilities to other departments, such as Health, Human Resources, whatever other departments affect the lives of ordinary Canadians. Is there any such move in the United States? What's your view of it if there is?

Prof. Stephen Cornell: Yes, there has been a long-term discussion about doing away with the Bureau of Indian Affairs. The Bureau of Indian Affairs' role in the United States has very much changed in the last 25 years. Twenty-five years ago, and in fact this is still true in some cases today, the bureau was the primary decision-maker on reservations.

A colleague of mine just returned last week from one reservation in Montana where his remark was you'd think it was the 1950s; everything is being decided by the bureau. In many cases, though, in the United States, the bureau has been moved from a decision-making role to a technical resource role and to an administrative role in which it carries out some of the record-keeping tasks, we might say, on land title and things like that for all nations. But its decision-making role has been much reduced. My sense is that as its decision-making role has been reduced, the demand for its dismantlement has also been reduced. In other words, the opposition to the bureau came because of the demonstrable record of bad decision-making. Once the decision-making was no longer really in their hands, the idea that they needed to disappear has become a less passionate notion.

I think some tribes would say today that on the technical side it provides some very useful services and resources. And there also is an administrative role for it in certain social programs and others that probably will always be federally administered because they are mandated by Congress. There are various ways in which the bureau probably has a long-term continuing role, but not in a decision-making situation.

Whether that means the bureau itself should continue to exist in its present form, I don't know. The fact is there are services that have to be delivered. The bureau may or may not be the best way of doing that. I don't have a view on that particular question.

Mr. Derrek Konrad: Thank you very much.

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The Chair: Thank you.

Mr. Cornell, I'm going to give you an opportunity to wrap up at the end, but before you do, first of all, we've been on your website, which is always enlightening, and one of the things I found interesting personally was the awards the Harvard Project set up for good governance and how that was based on best practices not only in the States but in places like Brazil and other places around the world.

For our purposes, good governance means a lot of things to a lot of people, and obviously you get a diversity in your applications for that. How is that working? Basically, it's an incentive program, by recognizing achievement on governance. I'd like to hear a little bit about that, and potentially some of the other projects. I know you're research-based since 1987. You've talked about projects that helped with direct executive counselling or enhancement, whatever you wish to call it. What other projects do you have that you wish to highlight to us?

Prof. Stephen Cornell: The program you drew attention to is known, for short, as the Honouring Nations Program. Its full title is Honouring Contributions in the Governance of Indian Nations. It's funded by the Ford Foundation. It's an attempt to recognize, identify, and celebrate examples of good governance by Indian nations. It's only two years old. This is the second year of the program. Indian nations can apply for recognition under the Honouring Nations Program for a particular government program that they, either singly or together, administer.

Last year we had 62 applications from probably more than 50 Indian nations across the United States for that program, and in November of last year our advisory board, which makes the ultimate decisions, awarded eight high honours and eight honours to programs that we found particularly distinctive and particularly strong.

This year the deadline for applications was last month. We got 70 applications this year. We're now in the process of evaluating those applications, and there will be an awards ceremony again this fall. The ceremony last year and this year both have been held in conjunction with the annual meeting of the National Congress of American Indians, which is comparable to the AFN in this country. That is probably the largest assemblage of tribes in the United States, and the Honouring Nations Awards ceremony takes place on one evening during that convention. So it's very well attended.

I think the program has received very substantial attention among Indian nations in the U.S. I must say, we did not expect this. We started this program at the urging of the Ford Foundation. It was not our idea. The Ford Foundation runs best practices in governance programs in several countries, and it suggested that there should be one for Indian nations and asked the Harvard Project to administer it, which we did. What has been unexpected to us is that this program has played a significant role in shifting much of the attention of Indian governments themselves to the question, what is good government in Indian country? So it has, in a sense, to my way of thinking, stimulated an extremely healthy debate.

What do these programs look like? The program I mentioned to you, the Jacarilla Apache tribe's wildlife program, was one of last year's applicants that got high honours, because it's a striking program, possibly as good a wildlife management program as currently exists in the western United States—state, tribal, federal, anybody. It's an extraordinarily good program.

We've had things like that, resource management programs to a foster-care program by which a tribe in the northern Midwest significantly increased the number of Indian parentless children who were being raised in Indian homes instead of in non-Indian homes and had very significant quality control mechanisms in place as well.

So it's a very broad array of governing activities that have received recognition in this program. One or two of the housing programs that I mentioned earlier that are now looking at private ownership of homes, the two I'm thinking of, come from this year's pool of applicants, and I've been reading about them just in the last few weeks.

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I think this program has been very effective. Several Indian publications have drawn attention to it. The tribes that have received recognition as either honours or high honours in this program have immediately promoted that fact. There is a sense out there that this is something tribes ought to look for ways to participate in.

In terms of other programs of ours, the Harvard Project remains at its core a research project, but over the last dozen years, largely at the urging of Indian nations, it has developed two other components, one of which is educational. In particular, the Harvard Project, in cooperation with the Udall Center for Studies in Public Policy at the University of Arizona, which I direct, is in the early stages of establishing a new institute at the University of Arizona, the Native Nations Institute for Leadership, Management, and Policy.

A primary activity of that institute is going to be executive education programs for senior tribal leadership, which is an attempt to provide those leaders with the kinds of executive education programs that state governors, military officers, and officials of foreign nations get at places like the Kennedy School of Government at Harvard, or at Johns Hopkins, or some other universities. It's executive education customized for Indian governance needs; I guess that would be a way to put it.

We are also doing some executive education programs with some first nations in Canada. I'm currently in discussions with Chief Sophie Pierre of the Ktunaxa/Kinbasket Tribal Council in British Columbia. They want the Harvard Project to provide the leadership of the five bands that are part of that council with executive education in governance. We're talking about how we can do that through the University of Arizona.

So that is another component that I would say is becoming increasingly active. We now get frequent requests from Indian organizations and nations in both the U.S. and Canada for that kind of work.

The final component is that we do a certain amount of work—and I guess I would describe it as consulting work, although it's largely pro bono—for Indian nations on policy issues of critical significance to them. Some of this we do through graduate students at the Kennedy School of Government at Harvard. Some of it we do ourselves.

So there is a dimension of the Harvard Project that has turned to concrete policy issues that an individual nation may be facing. We've had nations ask us for help in designing dispute resolution mechanisms—for example, how do we build a tribal court that is true to our cultural understandings but is capable of delivering reliable decision-making and will be recognized by non-Indian courts as worth their respect? We've also had nations approach us on personnel policies and many of those kinds of things. So that is a third component of our activity.

The research itself is continuing. One area that we're increasingly interested in is the fact that we have significant anecdotal evidence that successful economic development tends to lead to reduced social pathology, reduced alcoholism, reduced suicide, and other sorts of things. Our theory and our conviction is that self-governance combined with economic development can have significant effects on those indicators. We're currently trying to put together a research project to look into that type of thing.

Thank you.

The Chair: I want to thank you on behalf of the committee members for your testimony and for your travel to be with us today. Thank you very much.

The meeting is adjourned.