A First Nation contemplates removing their chief. Ottawa runs for cover.

The federal government imposed government structures on First Nations. It says it isn't its place to resolve them.

By Tyler Olsen | December 27, 2022 |5:00 am

In November, two dozen Kwantlen First Nation members gathered at a small community church on McMillan Island, across from Fort Langley. They were there, flanked by family members, to try to make history and unseat Kwantlen First Nations’s long-time chief.

For those present and their allies, the meeting was (or should have been) the moment a “dictatorship” fell.

For the chief and her allies, the meeting was naught but an “attempted coup.”

And a month later, the dispute has yet to be resolved.

What is certain is that the institution perhaps most responsible for the Kwantlen turmoil (and uncertainty at many other First Nations) wants no part in fixing the mess they created long ago.

The beginning

Hundreds of years ago, when Europeans first arrived on the banks of the river they would name for Simon Fraser, they found the land already widely inhabited (though reeling from the spread of disease). They did not find the static First Nation governments we think of today.

Before contact, the dozens of Stó:lō communities up and down the valley were highly integrated with one another. Arranged marriages tied Stó:lō communities together, with extended families spread broadly over many villages. Trade created further bonds.

Resources were scattered around the region so mutual respect and trust was essential in order to build the relationships that would enable members of a community to access fishing spots near one village, hunt in another, and collect berries in another.

The links between villages and the mobility of people were a key factor in how citizens held their leaders to account, said UFV history professor Keith Carlson, who has studied local Indigenous governance for decades in close partnership with Stó:lō governments and leaders*.

If there were disagreements among the leadership in one village, family heads from another community might be brought in to act as arbitrators. And while there may not have been ballot boxes, major decisions required consensus among family leaders. Those family leaders were in turn accountable to their own relatives. Ancestry was important, but so too was the support of others. The power of the top leader(s) in any village came from their ability to foster and maintain that consensus.

Leaders tended to be seen as coming from a community’s “elite.” But Dave Schaepe, the director of the Stó:lō Research and Resource Management Centre, noted in a 2009 paper that elites had to “appeal in some way to the ‘rank and file’ or otherwise risk exposure, resistance, and rejection.”

Finally, if individuals couldn’t influence change locally, the interconnected relationships among communities allowed them to vote with their feet.

“Before the government imposed band membership lists,” Carlson said, “members of extended families could just say ‘Well, to hell with the leader in our community. We’re going to go live with our relatives in another community.’”

*Carlson edited A Stó:lō-Coast Salish Historical Atlas, is a Canada Research chair in Indigenous and community-engaged history, and has worked closely with local Stó:lō communities to study pre-colonial governance structures and try to create new working systems. Most of the uncited information in this story is based on a recent Current interview with Carlson. We wrote about his current work with the tribal council in 2021. Return to place in story.

The original sin

In the late 1850s, amid the creation of the Colony of British Columbia and tensions between Indigenous people and settlers in the Fraser Canyon, the British declared it necessary to stop the ongoing migration and movement of Indigenous people in the lower Fraser region. The goal, as Carlson described in a 2007 paper, was to allow Indigenous societies to be “more easily controlled and shaped,” and “become compatible with development interests.”

Those concepts spurred the creation of First Nation reserves in British Columbia over the coming decades.

Before colonization, there were distinct and different Stó:lō tribe groupings, with villages linked by common descendants. (The full scale of the collective identity of pre-colonization is still a matter of some debate, but could have included identification of a pan-Stó:lō leader.)

BC’s reserves, however, were created in a seemingly haphazard manner. Individual First Nations frequently didn’t seem to match historic tribal affiliations.  And their creation severed connections between communities, villages, and even families.

In some places, like Chilliwack, separate First Nations were created for nearly every village even when those communities were highly integrated with one another; many may have been considered part of the same tribe. In other parts of the valley, the opposite occurred, with villages from different tribes lumped into the same First Nation.

Reserves started simply as parcels of land allocated based on the approximate population of the local Indigenous population. (Before they were finalized, Joseph Trutch dramatically reduced the amount of land allocated to each reserve, as we wrote about here.) But after BC entered Confederation, Canada used the census to create lists of each adult man living in a particular settlement or reserve. The formulation of such lists was a “key component of the BC Colonial reserve creation process, and one that was to fracture the links between Aboriginal extended families in a profound and lasting manner,” Carlson wrote in a 2010 paper.

Suddenly, if you were a member of one First Nation, you could find yourself without the ability to access the resources tied to another First Nation, even if your ancestors may have done so for time immemorial.

Sonny McHalsie, a frequent collaborator of Carlson, spoke about the impact of colonization on the inter-community mobility of people pre-colonization in an interview with podcaster Aaron Pete earlier this year.

“When you look at the things colonizers imposed on us, it was a way of separating us,” he said. “People could travel wherever they wanted, elders talked about that. When you got married, the bride could go to the groom’s home or the groom could go to the bride’s.”

The creation of reserves and band lists instantly separated communities, McHalsie said. It intentionally discouraged movement by Indigenous individuals and families.

And it also had a profound effect on the way communities governed themselves, made decisions, and held leaders accountable.

And if you wanted to move to a community where the leadership was more to your taste? Well, that had just gotten a whole lot more difficult.

Continues below

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A new country

As Ottawa created new First Nation reserves and the quasi-governments that would administer them, it also sought to influence how leaders would be chosen.

Sir John A. MacDonald’s federal government—largely populated by migrants from Britain—sought to have First Nations adopt British-style municipal government. But they recognized the transition would take time in many areas, especially in British Columbia, where Indigenous communities were less familiar with colonial governments.

So when they passed the Indian Act, the feds included a provision allowing First Nations to use “customary governance” to choose their leaders. Because it was recognized that different communities had different customs, the specifics were largely left to the individual communities, Carlson said.

The move was less a show of flexibility than a demonstration of neglect.

“For the most part, the government didn’t care what was happening in an isolated reserve on the central coast of British Columbia,” Carlson said. Mostly, they just wanted to know which person in each community they could use to assert their authority.

“It was meant so the government can identify ‘Who is chief in your community.’”

The selection of leaders, Carlson said, “wasn’t about honouring Indigenous governance traditions. It was about facilitating the delivery of the Indian Act policies to rural and isolated communities.”

(Perhaps best illustrated by the fact that communities with traditional governing structures lacking a single ‘chief’ were required to select one—or have one chosen for them.)

The chief might be the one to deal with fishing nets if the government was feeling generous. But they might also be the person asked to ensure a band wouldn’t hold a Potlatch.

Just because Ottawa might decide to take a hands-off approach in a community’s leader-selection process didn’t exempt that village and its people from the problems created by the Indian Act, reserves, and band lists.

Chiefs could be removed if they angered the local Indian agent, the federal government’s on-the-ground representative. On one occasion in the Fraser Canyon, a new chief—elected only after the Indian agent had thrown out the results of a community election—was ordered to swear an oath that he was effectively subordinate to the Indian agent in question.

On other occasions, local missionaries and settlers identified a person with some local support and designated them as chief.

So the title of “chief” was not always one to be desired. In the mid-90s local elders told Carlson that when they were children, being chief was often seen as a “no-win situation.”

“Your community is expecting you to defend them against colonialism, but the government has identified you as a chief so that you can assist them in facilitating assimilation,” Carlson reflected recently. “What a thankless position to be in; no matter what you do, both sides are going to see you as compromised in meeting their goals.”

Elections—for some

Progressively throughout the 1900s, many First Nations transitioned to municipal-style governments with chiefs and councils elected by member vote every two years.

But communities have found elections to create as many problems as they solved—commonly because of the dictates of the Indian Act and the membership lists created a century ago.

The Indian Act-defined election system “pits people and families against one another rather than encouraging people to work together toward common goals,” Carlson wrote in 1993, after being hired by Stó:lō Tribal Council to analyze the consequences of the Indian Act election system and recommend paths forward. Dissatisfaction had led many people to abstain from the process altogether, he wrote.

A handful of Canadian First Nations, meanwhile, have retained forms of “custom governance.” But those governance forms are usually based on unwritten rules that have often evolved over time and frequently come with their own problems. And so, Carlson said, such custom governance structures do not actually always align with how communities actually governed themselves pre-colonization. And frequently, they are subject to the whims of those in power, in part because of the legacy, requirements, and constraints of the Indian Act, reserves, and band lists.

“[Custom governance] is not always what was the deep cultural tradition of the community,” Carlson told The Current. “It’s what has become the customary practice in the community since it was inserted into the Indian Act system.”

The feds

No earthly government has yet created a foolproof system for electing or appointing competent leaders. But some systems are less effective than others.

Government structures imposed on subjugated people are particularly disposed to result in resentment and failure. Indigenous communities have increasingly recognized the flaws in the systems they were handed. So, in recent decades, many First Nations have sought to create and formalize their own homemade systems to govern themselves and choose their leaders. In doing so, they have often looked to their own histories and cultures to find models that could promote effective, accountable, and collaborative governing.

That is what Carlson recommended the Stó:lō do in 1993.

But as First Nation governments and their citizenry have pursued their own ways forward in recent decades, they continue to be shackled both by history and a federal government that is unwilling to play a part in solving problems it created.

In 1994, Carlson partnered with the Shxw’õwhámél First Nation near Hope to develop a locally based governance model rooted in the Siyá:m System. That system sees prominent families appoint representatives to a council-like body that makes community decisions. The result is a form of representative democracy with leaders selected through less formal means than a ballot box. (All communities have different perspectives on their local governance systems and the Stó:lō world is no different. Different people have different perspectives and interpretations of the traditional system, a matter complicated by the lack of written codes.)

But all governance models must deal with modern-day realities. And all evolve over time. The Shxw’õwhámél system itself changed very quickly after adoption, with a “leader of leaders” position quickly abandoned after in-fighting. Afterwards, many called for the position’s revival, while others called for a return of the election system.

In a follow-up article written 13 years after the system was enacted, Carlson wrote that the decade of Siyá:m governance showed how even traditional local government structures are intrinsically affected by modern political realities and policies set by other governments.

“What is becoming apparent to people, however, is that reviving a governance system based on extended family requires engaging family in its broadest and fullest sense—and that means transcending not only the physical boundaries of the local Indian reserve, but the mental and legal boundaries of the Indian Act’s membership lists.”

Ottawa, though, has largely checked out of governance issues.

Indeed, when it comes to how First Nation governments choose their leaders, Ottawa’s participation has changed remarkably little, even as its reasoning has undergone a 180-degree shift.

“In the past,” Carlson told The Current earlier this month, the feds took a hands-off approach “because they just didn’t care.”

Today, he said the federal government avoids taking actions in order to not be perceived as “meddling” in the affairs of Indigenous communities.

Carlson described the message from the feds as: “Whatever they say, we’ll support.”

But that position ignores the continued imposition and impact of federally created systems.

Carlson says the message from the federal government during governance disputes is now: “You’re stuck with [your governance system], and now that we’ve created this mess, we don’t step in to fix it. We don’t provide assistance in getting past conflicts or tensions. We just let it boil over.”

The Kwantlen dispute

The leadership dispute roiling Kwantlen First Nation embodies many of the challenges facing Indigenous communities that are seeking to control their own governmental destiny within the confines of federal policy.

(In his interview with The Current, Carlson did not talk about the specifics of the Kwantlen dispute. But his research has been cited by those on both sides of the dispute.)

Kwantlen First Nation has faced calls for governance reform for years. The current state of the quarrel illustrates the complexity of the matter: not only do the two sides say they want the same thing (the selection of leaders through traditional means) both sides say they have accomplished that outcome. But each side has a completely different opinion on who the appropriate leader is.

Kwantlen is one of a small minority of Canadian First Nations that never adopted the Indian Act-created election system and so remains one where leaders are chosen by “custom.”

Marilyn Gabriel was anointed hereditary chief by her father during a 1993 gathering. In a 2019 interview with writer Robert Jago, now one of her most vocal opponents, she said those present at the gathering chose their leader by a show of hands. Since then, she has exercised power along with two appointed councillors.

No elections have been held since.

There are currently no written rules dictating how a Kwantlen leader is chosen. In 2019, members started a process to change that and create a governance code. They pleaded with Indigenous Services Canada, the federal agency that delivers services to First Nations, to oversee the process. ISC declined to participate, though Gabriel and her council agreed to start work on creating a new governance structure.

A private company was hired to create a draft code, and three-quarters of respondents to a 2021 survey expressed the desire for some version of elected council. But the code remains unformalized, and the lack of apparent progress has led to increasing calls for action.

This year, cascading conflicts have heightened tensions, including those surrounding the administration of Kwantlen’s reserve lands in Whonnock, on the other side of the Fraser, and a confrontation between Gabriel and her own sister. So in recent months, a group of members took it upon themselves to push for change.

In November, that group called a community meeting at which a majority of attendees voted to unseat Gabriel and elect three new councillors, which would tip the balance of power at Kwantlen in favour of those advocating reform.

Kwantlen First Nation members met in November to hold a vote to choose a new council. The incumbent council, though, says the meeting was not legitimate. 📷 Submitted
Kwantlen First Nation members met in November to hold a vote to choose a new council. The incumbent council, though, says the meeting was not legitimate. 📷 Submitted

Because the leadership is decided by unwritten “custom,” Jago said that before the meeting, the group sought input from elders about how the community historically resolved such disagreements or chose new leadership. Jago said they also referred to his 2019 interview with Gabriel in which she described the steps leading to her appointment 30 years ago.

Following the meeting, Gabriel declared the meeting to have no legitimacy. Lawyers for the legacy council said the meeting was called and attended by a “small minority” of Kwantlen members and carried no authority. (Jago said 25 members attended in person and another 15 took part via proxy. He said that represented 17% of voters.)

You can read in-depth reporting on the specifics of the Kwantlen dispute from APTN here and from IndigiNews here.

The Current attempted to contact Kwantlen First Nation via email but did not hear back.

Some other Stó:lō leaders have since waded into the dispute. Two Stó:lō Grand Chiefs, Doug Kelly and Clarence Pennier, penned a letter calling on the Kwantlen to resolve the dispute outside of the courts and urging members to “continue to support your Hereditary system.” They declared Gabriel’s appointment, which they attended, to be in keeping with Stó:lō custom; they suggested November’s meeting did not meet that threshold.

Kwantlen’s incumbent council forwarded the letter to members, and asserted that it was from the Stó:lō Tribal Council, a cross-Stó:lō political organization that includes chiefs from more than a dozen Stó:lō First Nations. But although the letter appeared to be written on STC letterhead, Kelly confirmed to the Current that it solely reflected his and Pennier’s personal opinion, not that of the larger tribal council and the other chiefs who serve on it.

The reformers took issue with several parts of the letter, which cited Carlson’s recommendation to reject Indian Act governance forms as reason to stick with Kwantlen’s “hereditary” system and engage with Gabriel. The reformers said Carlson’s research showed that a leader’s power came from the support of community members and respected local elders and leaders. In other words, they say a community had the ability to remove a leader from power should they deem it necessary.

(Indeed, in his 2011 book “The Power of Place, the Problem of Time,” Carlson wrote that some elders had told him that when Siyá:m from around the region met to make decisions of regional importance, the power fell to those who could both persuade their fellow leaders. “To exercise their power [either collectively or individually] the Siyá:m typically urged, occasionally cajoled and in similar ways persuaded others to follow their leadership by demonstrating the wisdom of their ideas,” he wrote.)

Independent—yet not

The reformers say Kwantlen’s leadership has lost the support of their community and because of that, no longer deserves to wield power on the reserve.

But the dispute has revealed that much of the power is sourced at least partly, if not wholly, through funding and recognition from the federal government.

After their vote, the reformers sent a notice to Indigenous Services Canada, the federal agency that interacts with First Nations, declaring that Kwantlen had undergone a change in leadership. (The legacy council, in turn, approved a resolution declaring themselves Kwantlen’s government.)

ISC has tried to stay as far out of the disagreement as possible, though they have purportedly offered to hire a mediator to promote dialogue between the sides.

“Indigenous Services Canada (ISC) has no role in how the community’s leadership is selected, or how governance disputes are resolved,” a spokesperson wrote to The Current. “The role of ISC with respect to custom code/selection processes is to record the changes in leadership when notified by a First Nation.”

Until a court order is made or a decision is reached, the federal government will continue to recognize the old council.

That proves Ottawa’s claims to neutrality to be a lie, Jago said.

The reformers argue ISC has been notified by the newly elected council and should respect the process it held.

Jago, who has acted as a spokesperson for the reformers and describes Gabriel’s reign as a “dictatorship,” says the federal government is intrinsically involved in the dispute, whether it wants to be or not.

“As far as governance is concerned, we’re treated as completely independent, except we’re not in any way independent,” Jago said.

He pointed to the role Ottawa plays in policing, the courts, and funding the current council. Federal laws mean the reforming block cannot take control of band offices nor federal funding allocated to Kwantlen’s council, even if they believe they have the elected right to do so.

With the old council disputing the legitimacy of the process, the reformers are holding a referendum in January that they hope will strengthen their case that the community at large wants change. But if the incumbent council still refuses to back down and a settlement between the two sides can’t be reached, the matter will need to be settled in court, the ISC says.

But there too the federal government has put its thumb on the scales. Because not only has Ottawa created the rules by which a case will be judged, but the incumbent council can use federal funding to pay their legal bills. Their challengers, meanwhile, would have to come up with money on their own. That could cost tens—or hundreds—of thousands of dollars.

“It’s clear what we want and the only thing stopping us from getting it really isn’t even [Gabriel],” Jago said. “The federal government is the only thing stopping it. They’re the only ones in the way. They’re the only ones that don’t recognize our traditional governance. They’re the only ones that are protecting her, funding her, and keeping her in power.”

“And they say [they’re doing it] to respect our independence.”

Beyond the Indian Act

The end goal of the reformers is a written code that clarifies how Kwantlen chooses its leaders in the future and removes the unwritten Indian Act “custom governance” confusion from the picture altogether. A draft version is online here.

(Jago says the appropriate model is the one that was used to call November’s meeting. “All meetings are called by family heads who then hold it in a big central location, everybody can speak, and then everybody decides together, like Switzerland has done it forever.”)

The legacy council seems to agree governance reform is desired. And all involved seem to broadly favour a system that is based on how Sto:lo leaders were chosen before colonization.

But getting there is the challenge, with the Kwantlen dispute laying bare the problems with the status quo.

Across the Fraser Valley and Canada, Indian Act-created governance models have few supporters. But any new system that can last must meet the demands of the 21st Century and members’ desire for transparency and accountability.

It must seek to provide a voice for every member, including those who might not belong to the largest, most prominent families in a community. It must reckon with highly charged questions about how rights guaranteed by the federal constitution apply on reserves. And it must also face the fact that, despite the federal government’s hands-off approach, First Nations are still dealing with the consequences of federal policies, the haphazard creation of reserves, and the legacy of band lists.

Several local communities have found their own ways to address such challenges.  But finding the right solution inevitably requires customization and a full view of the past, present, and future, Carlson said.

“You can’t just grab something from the past and make it work today.”

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Tyler Olsen

Managing Editor at Fraser Valley Current

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