Declaration Regarding "Gaming" By The Somena Hw'nuchalewum
A Somena, Coast Salish Nation - From 2006
Declaration Regarding "Gaming"
By the
Sovereign S'amuna' Hw'nuchalewum
(A Somena, Coast Salish Nation)
November 15th 2006
To:
Her Royal Highness, Her Majesty Queen Elizabeth II,
Her Excellency the Right Honourable Michaëlle Jean
Governor General of Canada
The Honourable Iona Campagnolo,
Lieutenant Governor, Province of British Columbia
The Right Honourable Stephen Harper, Privy Council
Prime Minister of the Dominion of Canada
The Honourable Jim Prentice
Minister of Indian Affairs and Northern
Development and Federal Interlocutor for
Métis and Non-Status Indians
The Honourable Gordon Campbell,
Premier of the Province of British Columbia
The Honourable Doug Routley
Member Legislative Assembly of British Columbia
Cowichan-Ladysmith Riding
The Honourable John Les
Member Legislative Assembly of British Columbia
Minister of Public Safety and Solicitor General
Minister of Aboriginal Relations and Reconciliation
Member of Legislative Assembly of British Columbia
Honourable Michael de Jong
Respected Siem Stewart Phillips,
President, BC Union of Indian Chiefs
Inspector Linton Robinson
RCMP, Duncan Detachment
and to whomsoever it may concern
Please be advised:
On Tuesday, Sept. 26th, 2006, an exercise of Aboriginal Rights occurred at the Clemclemaluts Thi Lelum (Big House). (See Attachment B) The organizers of the event were representatives of the S'amuna' Hw'nuchalewum. For thousands of years Coast Salish Indigenous Peoples have enjoyed the practice of gaming in the form of a gambling event called "Sla-Hall" or "The Bone Game". Such practices have continued to be enjoyed since long, long before non-natives came to our territory, before non-natives attempted to occupy our lands without our permission, before non-natives attempted to ban our potlatch and religious practices, before non-native governments burned our Thi Lelums to the ground. Gaming, particularly Sla-Hall, is a distinct part of our culture and one that is practiced to this very day in the season for it, and with which law-enforcement and the gaming authorities in the Province have not attempted to regulate nor interfere. In fact, the RCMP in the past have actually assisted Sla-Hall tournament holders by being at the ready should somebody attend the event who is intoxicated and causing a problem for the other players.
Leaving aside for the moment the issue of whether Canadian law is applicable in native territory that has not been ceded by treaty, interpretation of Canadian law is done by Canada's courts.
Courts in Canada have in the past ruled that Aboriginal Peoples have Aboriginal Rights to carry on their traditional cultures without obtaining licenses to do so or complying with government regulations. For example, Aboriginal fishermen exercising their Aboriginal Rights to fish, need not obtain fishing permits nor catch fish only in the seasons specified by regulations. This is probably why the Province and the RCMP has never questioned our right to carry on playing Sla-Hall, even though it is gaming.
Courts in Canada have also ruled that in practicing an Aboriginal Right, one is not restricted to performing that right as if time had frozen. For example, Aboriginal hunters are not restricted to hunting with bows and arrows. Aboriginal fishermen are not restricted to the use of traditional methods such as spears, hooks and fish weirs. Quite the contrary. Canadian law purports to forbid us from using our traditional fish weirs, but permits us to use a modern commercial fishing vessel.
Therefore, we assert that since Sla-Hall is demonstrably part of our culture, and Sla-Hall is gaming, and the Province has recognized the right of Aboriginal Peoples in this area to practice Sla-Hall without a license or any regulations whatsoever, that the Province should and must recognize our right to switch games and play Bingo if we want to. Bingo is simply a more modern form of gaming.
Even if the Province did have jurisdiction, (which the Premier claimed it did not) your laws, as interpreted by the courts, allow us to carry on gaming without a license, without filling out your forms and without regulation.
The bingo we held on September 26th was to raise funds for the purpose of repairing the Clemclemaluts Thi Lelum (Big House) and it generated $100 for the Big House and $60 worth of chairs from a corporate sponsor. The practice of Seeyowin (Spirit Dance) was banned for many years by the Canadian/BC Government. During that time, our Big Houses were literally burned down to stop the practice of our spirituality. Because of this, we believe that the exercise of our rights in restoring a Big House was poetic justice in a sense.
Shortly after the second bingo fund raiser to restore the Clemclemaluts Big House was advertised in the local paper, we received a menacing phone call from a man identifying himself as "John Johnman" from the "BC Gaming Policy & Enforcement Branch" advising us that we were breaking the law. We intended to go ahead and hold our event in any case. However, the evening before the second event was scheduled, a tragic house fire occurred on our reserve in which two children lost their lives and two others had to be rushed to the burn victims unit in Vancouver. We canceled our event out of respect for the families involved. In the interval, we spoke at length with Ray Robertson, at the Solicitor Generals' Office, also in the Gaming Policy & Enforcement Branch where he is a Litigation, Information & Privacy Officer. Mr. Robertson was very kind and helpful. He sent us a package and an application. We greatly appreciate the time and effort that Mr. Robertson took to deal with our situation and his effort to try and see things from our point of view. We also greatly appreciated how much respect Mr.Robertson accorded the culture of our people and his knowledge of our ways.
We recognize that under Canadian domestic law, court decisions have claimed that Indian Bands have to obey the Criminal Code with respect to gaming, and that gaming falls under the jurisdiction of the Province and enforcement falls under the jurisdiction of the RCMP. This was what "John Johnman" of the Gaming Enforcement branch kept trying to tell us although our communications liaison kept explaining that we knew this already.
However, the S'amuna' Hw'nuchalewum has never signed a treaty with the Crown. In fact, the S'amuna' Hw'nuchalewum is at this moment not legally a part of Canadian Confederation. Our rights have never been ceded, and they are unextinguished. We have asked, for several years in fact, for both the Province and the Federal Government to send agents of Her Majesty to speak with us to remedy this situation, but they have shown no interest in doing so to date.
In the larger picture, Canada is a signatory to the Vienna Convention on the Law of Treaties, signed in 1969, (http://www.admiraltylawguide.com/conven/lawoftreaties1969.html) and is actually thus duty bound to Treat with us in accordance with the Vienna Convention. We attach for your perusal (see attachment A) a copy of a document that was hand delivered to agents of the crown for the Crown on behalf of the Province and the Federal Government, who had come to our S'amuna' Territory on October 10th, 2002, to negotiate at a "maintable" with the BC Society Act created Hul'qumi'num Treaty Group.
In addition to handing the agents of the Crown the document (attachment A) we verbally read aloud portions of the document to all present, including members of the press, and we told all present that the Hul'qumi'num Treaty Group (created by the BC Society Act and not at all a part of our traditions) did not represent us, The S'amuna' Hw'nuchalewum. This was reported in the newspapers at the time (See Attachment B).
We began communications with the BC Treaty Commission around that time as well. We were informed by a representative of the BC Treaty Commission, Isabelle Budke, that the BC Treaty Commission would decide for us, the S'amuna' Hw'nuchalewum, who would represent us in Treaty Negotiations. To make this clear and put it in perspective, this is would be like, if James Douglas in negotiation of the Douglas Treaties had not actually let any of the Aboriginal Peoples involved choose their Siem and leaders to negotiate, and instead appointed individuals to negotiate on behalf of the Aboriginal Peoples of the Douglas Treaties. Those treaties would be considered null and void today. And likewise, if our concerns about the BC Treaty Commissions' dictates are not dealt with, and the Province and the Federal Government keep insisting that the Cowichan Indian Band and it's representatives are our agents, and does not ever deal with the S'amuna' Hw'nuchalewums' assertion of independence, any Treaty signed or ratified in such a process will be null and void for us, the signatories to the "Request to the Government of Canada" and all of our descendents, and thus there will be no certainty for Province or the Federal Government with respect to Land Claims, which we assume is the whole reason they are involved in negotiations to begin with.
We have not been able to participate in any treaty negotiations under the auspices of the BC Treaty Commission, but they claim the Hul'qumi'num Treaty Group represents us and that we are therefore "in negotiations" for a treaty that we have no control over. Since the BC Treaty Commission thinks we are in treaty negotiations, we demanded the right to pull ourselves out of the negotiations. These negotiations are ongoing between the Crown and the BC Society Act created Hul'qumi'num Treaty Group. We were told that in order to do so, that we would have to pay a portion of the debt that had been incurred in our name without our permission. Although we have never agreed to any such debt and do not really owe it, we offered to pay it, if that were necessary to get the Crown to negotiate with us or to leave the process altogether.
Unfortunately, however, nobody from either the Hul'qumi'num Treaty Group, the Cowichan Tribes Indian Band Government, the BC Treaty Commission, or the Department of Indian Affairs, would tell us:
A) how much money we needed to pay either
i) as a lump sum
ii) or per capita
B) or who we needed to pay the money to.
This makes it rather difficult for any individual within the S'amuna' Hw'nuchalewum or the S'amuna' Hw'nuchalewum itself to pull out of negotiations according to the BC Treaty Commission. In fact, it makes it impossible.
The British Columbia Treaty Commission Agreement, 1992 that created the BC Treaty Commission, signed by Prime Minister Brian Mulroney and Premier of the Province at that time, defines a "First Nation" in Section 1.1 as
"an aboriginal governing body, however organized and established by aboriginal people within their traditional territory in British Columbia, which has been mandated by its constituents to enter into treaty negotiations on their behalf with Canada and British Columbia."
see http://www.bctreaty.net/files_3/bctcagreement.html
Clearly The S'amuna' Hw'nuchalewum meets this definition. We are organized according to our traditional form of governance by house-grouping, and our Sul'queen (elders) are mandated by their families to act and speak on their behalf.
The Agreement further states in Section 7.0 that the BC Treaty Commission must arrange negotiations between the Crown and any "First Nation" which expresses an intent to negotiate within 45 days after the "First Nation" files a statement of intent to negotiate. We did file Attachment A as a statement of intent on March 7, 2003 with a cover letter explaining it.
(Caveat: We are not a "First Nation" however we are, as section 1.1 clearly states "Aboriginal Peoples"."First Nations" is Indian Affairs and Departmant of Indian Affairs jargon that carries no weight nor has any bearing on International Law. We explained this at length to the BC Treaty Commission in our cover letter and in subsequent communications.)
And yet, the BC Treaty Commission officials tell us that they have decided who shall represent us in negotiations. This is despite the fact that we have a mandate from the signatories to the "Request to the Government of Canada" document (attachment A) and we have appointed a speaker to negotiate for us, and we have stated quite clearly in that document that the BC Society Act created Hul'qumi'num Treaty Group does not represent us, we are completely ignored by the BC Treaty Commission, the Crown's agents for both the province and the federal government in negotiations, as well as by the Indian Agents in the Department of Indian Affairs.
Further, there is a process by which Bands may separate or amalgamate with the Minister of Indian Affairs' approval. However the process of doing this would surrender our Sovereign rights. The S'amuna' Hw'nuchalewum is not looking for recognition of itself as an "Indian Band". It is looking to negotiate with Canada, under the terms of the Vienna Convention of 1969, and the UN Declaration on Indigenous Rights, which recently was ratified earlier this year by the U.N.. We recognize that this may take a long time to happen, but in the meantime, we seek to avoid conflict, and any actions we take that "go along" with allowing the Indian Agents of the Cowichan Tribes Indian Act government or its bosses in the Department of Indian Affairs to have a role in our lives is simply to avoid conflict, violence and conflagration in accordance with our traditions. When we "go along" with your laws, regulations and pretenses, it is by no means any recognition of your authority to impose laws or regulations on us and our territory. We are merely avoiding conflict.
Originally S'amuna' was recognized by Canada as a separate "Tribe or Nation" (in the terminology of the Royal Proclamation 1763) before the Indian Agent many years ago decided it would be easier for him to amalgamate all the different "Indian Bands" in this area into one big Indian Band, thereby creating the "Cowichan Indian Band a.k.a. "Cowichan Tribes". The Cowichan Tribes Indian Band therefore is not actually a Sovereign Nation, and its democratically, first past the post, elected leaders currently do not believe that it is a sovereign nation, or if they do, they certainly do not act as if they are a sovereign nation. For example, the head negotiatior for Cowichan scoffs at the idea of Sovereignty. This makes sense since "The Cowichan Indian Band" is, itself, a creation of the federal government of Canada. Its authority derives entirely from the Canadian federal Indian Act, not from native traditional laws and ancient but still currently practiced institutions. Cowichan Tribes and similar Indian Band governments may have to adhere to the kinds of rules and regulations that "John Johnman" believes Indian Bands must adhere to. They cannot argue that the federal government has no jurisdiction over them since they were created by federal legislation and they quite willingly adhere to and cling to this authority over their lives. We do not understand this willing, sometimes eager compliance with the destructive influences of the Indian Act, and the Indian Agents in Ottawa and the Regional Offices, but we are powerless to stop this from happening.
Our teachings tell us that we can not compel people or individuals to go along with our choices, as a group or as an individual, and vice versa. Our teachings and ancient traditions always respected the highest lattitude and freedom of peoples and individuals to make their own choices and act according to those choices. We even have a word for this concept. The word is "Hwnitzelum". Which means "to go your own way" or "to go their own way" or "to go one's own way". It means literally for one group of people to leave a house grouping or hw'nuchalewum and attach themselves to another hw'nuchalewum, or indeed to form their own hw'nuchalewum. But in a metaphysical sense, it also means individuals, families, groups of families, are free to go their own way and are never compelled to remain in a place where they do not want to, or where they feel they are not wanted, or are not respected. In essence, Our people had the individual freedom of association, which included the freedom to not associate with others as an integral part of our teachings, laws and traditions.
In our teachings, each person has a Shwampmet, or bed/place in their Thi-lelum.(Big House) This is true on a physical, metaphysical and spiritual sense. This is the place that they come from. The place they can never be turned away from. The place they belong to. The ground they are rooted to. The Shwampmet symbolizes the individuals' rights within the Hw'nuchalewum or Nation. This is part of why "Indian Names" in our culture are so important. An Indian name tells people instantly where you are from, the ground you are from, the Shwampmet that you own because of that name. Within each Thi-Lelum there may be as many as 40 families (in the pre-contact times) and everybody had a place to sit or lay down in the Thi-Lelum, a right to their place when meetings took place, laws were discussed, common law was being conducted, and ceremonies were practiced. While some of this has fallen out of practice, to this very day, during the Winter Season, you still find that the traditions of where one sits in the Thi-Lelum during the Seeyowun, is still practiced. Every person sits in their place according to where they are from, which is a nod to the ancient custom when we used to live in the Thi-Lelum's year-round except when we were engaged in other traditonal activities like fishing, hunting, harvesting our aqua-cultured clam-beds, or visiting our summer camps, and of course trading with other nations.
It is our understanding that the reason that Hwnitzelum exists as a concept in our traditional laws has to do with "conflict resolution" and the "avoidance" of conflict are such an ingrained part of our traditional culture. In a Thi-Lelum with 40+ families living together, there was most assuredly cases of conflicts that naturally arose from large numbers of people living in a communal area. (Just spend an hour, today in modern times at any Strata meeting of a Condo Association, and you see that such *conflicts* are a natural part of any people living in close quarters). It only makes sense that our ancestors developed this concept of Hwnitzelum to ensure that such conflicts did not spill over into other Hwnuchalewums and cause strife amongst even larger numbers of people. In that regard, we suggest to the provincial government and the federal government that the right to "Hwnitzelum" is also a distinct part of our culture and must be respected as an Aboriginal Right, protected under the Constitution Sect 25 and 35 respectively, as such, and that our respectful request for recognition (see attachment A) be met forthwith.
Whether non-natives understand our teachings, laws and traditions or not, they did and do exist and are continuing to be practiced to this day.
It is sad that after all these years it is still a matter of convenience today for the Canadian government that basically keeps the S'amuna' Hw'nuchalewum independence issue from being addressed. However we have lived with sadness and much worse things for many years and can and will endure this ignorant refusal by the Provincial and Federal Government officials to address us, no matter how long it takes until they do come to our table and sit down and talk. Time is on our side, because overall, our culture and civilization has lasted for thousands of years and we will if required outlast this current "culture" in English/French Mainstream Canada" if that's how long it takes. We find it strange however that even when we say we don't want any "funding", from either government, and that we will manage our own affairs, they ignore our respectful requests for recognition of independence.
The S'amuna Hw'nuchalewum and its citizens have a right to identify themselves as they wish, and furthermore they have the right to self-determination. We have the right to decide to go our own way(Hwnitzelum), instead of following the Cowichan Indian Band as it creeps further and further into assimilation and ultimate financial and cultural annihilation and ruin. We cannot stop them. We only wish to take a different path, a path that leads in a completely different direction. We do have the right to make that decision for ourselves, and to act on it, no matter what the Chief and Council of Cowichan Tribes say, no matter what the Indian Agents in The Department of Indian Affairs say, no matter what the Minister of Indian Affairs says, no matter what the Prime Minister of Canada and his Privy Council say, or indeed no matter what the Parliament of Canada says. We have that right, and we intend to exercise it, especially when our very survival is at stake, which it surely is now. If it means teaching our children and grandchildren these words... "We do not consent" over and over again. That is what we will do, to survive.
What must be understood is that the S'amuna' Hw'nuchalewum is not Cowichan Tribes and vice versa. We are a distinct group. We have publicly declared our independence for several years now and we have a history of independence that goes back for millennia. That this is now causing a problem for the province or may cause problems for the federal government when it comes time for a "Land Claims Agreement" (aka The BC Treaty Process) to be ratified, is really not out fault when we have made our position as clear as could be many times over.
There is a very simple solution to this current problem. The provincial or federal government could and should send representatives of the Crown to work out an interim agreement with our S'amuna' Hw'nuchalewum Nation with respect to gaming. We called the Province's Department of "Aboriginal Relations and Reconciliation" and were told somebody would call us back the week that these events took place. We also called the BC Treaty Commission and spoke to a representative for Judge Steven Point, the BC Treaty Commissioner. So far, neither of these organizations or governmental bodies have gotten back to us. (This has changed - see above) This was almost a month ago.
In any event, we seek to hold Bingos in order to raise money for the following purposes that we deem important to the cultural survival and even to our physical survival as a people.
1. Big Houses: The first Bingo we held was symbolic in that it was to raise funds to restore a Thi Lelum (or Big House), since the Canadian government had in the past burned our Big Houses to the ground and outlawed the sacred practices that we enact in them during the Winter season. We hope to raise $1,000 for the Clemclemaluts Big House, and $1,000 for each of the other Big Houses in the immediate area. S'amuna', Quamichan, Malahat, Kuleet Bay and Nanaimo.
2. Relief: We want to raise funds to go towards an emergency relief fund for S'amuna' families. This would be a fund to assist families who have suffered some hardship, like a death in the family, accident, or things of that nature. We recognize that there are social safety nets available in BC. However, people can sometimes slip through the cracks (See attachment C) and sometimes, immediate relief is not always available immediately. Since many of our people are living well below the poverty line, they often lack the basic essentials of life, and often times have to make decisions like "do we pay the hydro bill, or do we eat this week?" We want to make sure that no child goes to bed hungry in our nation or within the greater community that we live in.
3. Language: It has long been an irritant to the elders that the "healing funds" established for the residential schools did not in any way deal with the loss of language. We want to set up a fund to find ways to preserve the Hul'qumi'num Language so that it is not lost forever. With advances in technology we believe that it will be possible to develop digital lessons on the language, but we must act quickly, because the few people who do speak the language fluently are getting older and time is running out to capture their knowledge.
4. Adoption-Repatriation: We want to set up an Adoption Reunion Registry that is separate from the BC Reunion Registry. Because of the assimilationist "Baby Scoop" of the 1960's and 1970's, there were a disproportionate number of adoptions of native children in Canada. When you couple this with the residential school system, high suicide rates, alcohol and addiction problems caused by the residential schools mess, you find that adoptees who are looking for their roots come up against a wall when they are searching for their birth parents, especially if their birth parents died a long time ago. We want to set up a system where relatives of adoptees can register, and also have somebody available to answer the phone and do searches in the community if somebody is looking to find their family, especially if the birth parents are deceased. We also want to make sure that adoptees who do come home are welcomed, and that we hold a small welcoming feast for them, and introduce them to all their relatives.
5. Advocacy: We want to set aside funds so that we can pay a staff member to assist members of the community with general advocacy work. This would include, but not be limited to, helping them find support when they don't know where to look, helping them write letters, helping them with knowing who to call to get answers to questions, making phone calls on their behalf if required and assisting victims of crime in dealing with the RCMP. There is still a great deal of fear in our community when it comes to having anything to do with the RCMP, even when they are dealing (sometimes especially if they are dealing with) native constables.
6. Elders Senate: We want to raise some money to help with the beginnings of the creation of an Elders' Senate for our S'amuna' Hw'nuchalewum. (See Attachment D) The next step in this process is the construction of a meeting hall for the Elders' Senate. We already have the cedar wood donated by various families within the S'amuna' Hw'nuchalewum, and the land is donated, we have two draftsmen able to draw up plans. Essentially this building will be a Snuweyeth Lelum (Teachings and Laws House) It will be the core of the S'amuna' Hw'nuchalewum where are meetings are held, where the Elders' Senate convenes. When a Treaty is negotiated, it will be negotiated there, in both our language and in English. The words "Elders Senate" are English words to try and convey the meaning of "Sulqween S'tlunuq", an ancient tradition that has existed for thousands of years. It is the gathering of our elders to confer on matters, to discuss things, to make decisions, to give advice and so on. We wish to build this Thi Lelum in as much of the old way as possible prior to contact.
7) Research: We want to raise some money to go into indigenous rights research and to occasionally be able to hire lawyers to give opinions on various issues. Often times when a person comes to the S'amuna' Hw'nuchalewum for help, we have to direct them to a lawyer for advice, but most people don't have the money to hire a lawyer. The Duncan Community Law Office was shut down due to budget cuts a few years ago. There are many people who could benefit from legal advice on matters pertaining to their indigenous rights who have nowhere to turn. We can help with research but we can't offer advice. Again, since the laws of Canada until the 1960's forbid Aboriginal People from even hiring lawyers to fight land claims, we find poetic justice in using an assertion of Indigenous Rights to hold Bingos to raise funds to hire lawyers to give legal opinions on Indigenous Rights. We understand that the BC Statutes forbid spending money from Bingos on actual litigation, and in order to avoid conflict over the question of whether BC Statutes have jurisdiction in our territory, we would like to negotiate a resolution of this matter in an interim agreement with an agent of the Crown. In the meantime, we may avoid behavior that the BC Statutes forbid just to avoid conflict, not as any acknowledgment of provincial or federal jurisdiction.
Caveat: Please also be advised, that in filling out any of these forms, we are not in any way shape or form capitulating our Sovereign Rights as an Indigenous Nation. We are not *asking* the Province of British Columbia for a license, we are essentially working with the Provinces's agents on a partial solution to an overall problem, that's been created by the derliction of duty by the Federal Government and the Provincial Government's negotiatiors in their failure over the past 4 years to sit down and treat with us. We are partially filling out this form as a courtesy to the Province, and in keeping with the spirit of our Snuweyeth of non-confrontation, and conflict resolution. We wish to avoid some sort of ugly scene of Aboriginal Peoples being hauled out of Big Houses, or RCMP officers breaking into Big Houses, to come and arrest us, for holding the mistaken assumption that they have the jurisdiction to enter a Big House on Sovereign Indigenous Lands.