3. The Separate but Equal Doctrine

A State which has drawn a colour line may not suddenly assert that it is colour blind.1

A fair and just future for First Nations doesn’t rest in the current legal framework of the Indian Act: that is simply legislative racism. – Former Assembly of First Nations Regional Chief Isadore Day2

It is imperative that Indians should have full equality before the law.  The provisions of the Indian Act do not give them equality. They are saddled with disadvantages which hound them continually in their daily lives… In this enlightened age we must give the right to all people, including Indian people, to the opportunities and equality which is the birthright of every Canadian citizen. – Assembly of First Nations founder and distinguished aboriginal lawyer William Wuttunee 3

If apartheid were measured by results rather than intent, we would have it on reserves today. -Aboriginal writer Calvin Helin 4

A nation or society has a general spirit pervading all its aspects, and ideally its laws must conform with this. 5


Canadians pay lip service to the ideal that our society should always be striving for equality- legal equality- and equality of social, economic and political opportunity- for all our citizens.

But for some inexplicable reason we exempt Canadian Indians from this fine aspiration. For them, our collective official aspiration is they have separate but equal legal status- and separate but equal social, economic and political opportunities, somewhat like the situation of American blacks before the United States Supreme Court in 1954 declared unconstitutional the “separate but equal” doctrine which had oppressed them for decades.

The election of Barack Obama as its President demonstrated how far and wise America has progressed since then. Kick-started by that court decision Americans have been able to find the courage and resolve, for the achievement of the higher purpose of full integration of blacks and whites, to discard the old separate but equal model and, as a nation, to at least try to achieve that higher purpose and goal.

Canada needs to find this same courage and resolve to try to achieve our version of this higher purpose – namely, full legal equality and full integration of Canadian Indians into Canadian society.

We need to reverse what Canadian Indian leader, businessman and ex-Toronto Symphony conductor John Kim Bell, echoing the distinguished and accomplished Indians quoted in the headnotes above, described in early 2018 as Canada’s official policy towards Indians- “apartheid.6

To do this we must, over time, in a planned and lawful manner, end this now archaic, wrong-headed and dysfunctional “separate but equal” legal strait-jacket that Canada and Canadian Indians have become bound and oppressed by- a strait-jacket characterized by antiquated laws, institutions and arrangements that are totally incapable of addressing, much less solving, the real and serious problems facing Indian-Canadians in the 21st century.

We need to find the courage and resolve to end the reserve system and separate, race-based, legal status for Indians.

The situation of ordinary Indians in Canada, because of these things, is dismal and inferior. The only way for this situation to improve is by gradually eliminating them. Ancient pre-contact Indian cultures are extinct. Indians, like history itself, can only go forward. They can’t go back to them. As historian Robert Kaplan wrote:

The “West”, if it does have a meaning beyond geography, manifests a spirit of ever more inclusive liberalism. Just as in the 19th century there was no going back to feudalism, there is no going back now to nationalism, not without courting disaster. As the great Russian intellectual Alexander Herzen observed, “History does not turn back…All reinstatements, all restorations have always been masquerades. ” 7

Trying to go back to different forms of race-obsessed, race-based tribalism, and, where our Indian population is concerned, repudiating Canada’s ever more inclusive liberalism, as our Indian elites and non-Indian elites are doing, is courting, causing, and perpetuating great economic, political and social harm to our country, and especially to the vast majority of vulnerable, marginalized, non-elite Indians.

 Completing the process of legal integration and social assimilation with non-Indian Canadians is the only serious, beneficial and realistic way forward.

There’s something jarring and dissonant to the Canadian psyche about the present situation. It goes against the grain of our civic ideals and our human natures, which instinctively seek fairness and equality. When those things are patently absent, it’s socially upsetting , destabilizing and creates “a greater array of social problems.”

People seem to understand this truth intuitively…they want less inequality. Inequality affects our actions and our feelings in the same systematic, predictable fashion again and again…Inequality divides us, cleaving us into camps not only of income but of ideology and race, eroding our trust in one another. It generates stress and makes us all less healthy and less happy. 8

All the expensive efforts we see now being undertaken to maintain or improve the present condition of Indians in Canada, all the new rights and privileges being granted to them by our higher courts- all based on the maintenance and enhancement of the legal status quo- may benefit a few Indians at the top, but they only result in more dependence, poverty and social ruination for the vast majority of them.

And they ill serve Canada’s best interests as a whole.

In 1969, by way of a “White Paper”, Canada proposed that the Indian Act be abolished and that Indians be brought into a state of legal equality with other Canadians.

And it wasn’t just the big, bad, “Eurocentric” Canadian government that was thinking along these lines. Many Indian leaders were too.

The late William Wuttunee, born into a family of thirteen on the Red Pheasant Reserve near Battleford, Saskatchewan, the son of James Wuttunee, a Cree chief, an attendee  of the Onion Lake, Anglican Church-run residential school, (where “life was harsh for the children and he witnessed violent, prolonged beatings with straps”), a former chief of the National Indian Council of Canada, (a predecessor of the Assembly of First Nations, (AFN), the first Indian to practise law in Western Canada, the first Indian to take a case to the Supreme Court of Canada, (even though he did not argue the case- a “gay rights” case!-  it was an awesome achievement- he was a sole practitioner at the time! ), supported the White Paper because:

…it promoted integration. He believed a  better life was to be had for Indians in cities, working and living alongside white people.

Douglas Cuthand, present-day native activist, said of Mr. Wuttunee:

Bill Wuttunee was light years ahead of everybody. He was way out there in his thinking too. He clashed with some of the leadership at the time. He wanted change and there was quite a movement towards integration… (He) was a visionary. And you pay a price. Whenever someone goes ahead , there is usually someone who  has laid some road ahead of you. But in the case of Bill Wuttunee, there really was no one ahead of him. You really have to give  him credit for that.

All of the immediately above is from Mr. Wuttunee’s obituary, A Trailblazing Life of Native Firsts, by Patricia Dawn Robertson,9 and from the introduction to his book, Ruffled Feathers.

Ms. Robertson also wrote:

In 1971 Mr. Wuttunee published a controversial book, Ruffled Feathers: Indians in Canadian Society, in which he continued to promote his views on integration. This public statement of his beliefs widened the divide between the successful lawyer and his community, most of whom wanted to preserve their traditional way of life.

He received death threats and retreated from political life back into his law practice , and redoubled his commitment to his Unitarian faith.

Ruffled Feathers, now out of print and commercially unavailable, (the writer had to go to some pains to get a copy- (borrowed from a branch of the Toronto Public Library)- is an important book- a book being deliberately ignored by the Indian Industry- in the context of today’s environment of shuttered free speech and adherence to orthodoxy, an amazing book- a brave book by a clear-seeing, clear-thinking, personally brave man- a man who never thought of himself as a residential school “Survivor”, (See Setting Indians Free from Their Past, below), -obviously a strong-willed man- probably, in his heyday,  a very stubborn and personally “difficult” man, (such idealists and visionaries often are)-an  independent-minded man- who saw himself first as a free-standing individual Canadian, and only secondly as an Indian-Canadian. 

Mr. Wuttunee , in Ruffled Feathers, argued, for the sake of the best interests of the Indians of Canada, in favour of  the abolition of the Indian Act, reserves and all the special race-based rights and entitlements for Indians. He argued for complete legal and racial integration of Indian and non-Indian Canadians. He urged his fellow Indians to adapt. 10

He made the same arguments that Gandhi  made in India, that Martin Luther King made in America, and that Nelson Mandela made in South Africa.

And for this he was proscribed and shunned; as his ideas, even after his death,  continue to be.

It’s grimly understandable that the then, (1971), new, emerging, identity politics-practising Indian elites, being then enriched by unprecedented new and larger transfers of what Mr. Wuttunee called “the white man’s money”, banned him from reserves, and generally, shut him down and marginalized him, so harshly critical was he of them and their “autocratic organizations”, their “nepotism and favoritism” and their “little red dictators”.

My essay- essentially a lone individual’s cry in the wilderness- was basically finished when I became aware of William Wuttunee and Ruffled Feathers. Reading the book and realizing that almost every argument made in this essay was already made and articulated in better and far more blunt and authoritative form by an accomplished and intellectually muscular aboriginal lawyer, was and is heartening. I will be referring to Ruffled Feathers throughout this essay.

(Is there no courageous, farseeing  Indigenous leader in all of Canada’s Indigenous communities, like William Wuttunee, who would today take up and promulgate his message of unity?

The 1969 White Paper proposals were too quickly dropped, a victim of the counterculture movement, with its then culturally-ascendant phenomenon of identity politics, where practitioners of it seem to care more about the special group they identify with than their country as a whole- a victim of the negative, self-centered excesses of our increasingly illiterate age- a childish age  devoid of any real sense of history or historical continuity, 11where the past was basically cancelled12– an age “when most people accepted that the course of their lives would be determined by history rather than psychology, public rather than private crises” 13-an age rife with subjective feelings of “entitlement”- an age “which takes our inherited advantages for granted and replaces the cure of  souls with the cure of the psyche, blind justice with therapeutic justice, and philosophy with social science.”14

The age-old societal boundaries within which as-objective-as-possible truths have been reasonably prescribed and contained have disappeared.

When former Liberal Minister of Justice Judy Wilson-Raybould was giving her now-famous 2019 swansong testimony prior to being shown the Liberal Party door she narcissistically spoke of “my truth” instead of “the truth”, in this way perfectly illustrating the transformation of the once universally-accepted dictum, “I think therefore I am”, to “I feel therefor I am.”

Social media has eroded almost to the point of destruction long-established, society-wide  hierarchical lines of authority,  influence and age-old values, standards and common assumptions.

No one dies of fatal truths these days, there are too many antidotes. 15

Again, as historian Robert Kaplan wrote, 16 pinpointing key causes and features of the harmful and dysfunctional situation in which Canadian Indians find themselves today:

The modern world faces its solitude and its responsibilities without the artifice of a protective dependency or a fictive utopian coherence. And so we see the return of various kinds of exclusivist identities: national, ethnic, tribal and sectarian…For the moment, in too many places, we will have to endure divisions of blood and myth:  divisions that are frankly undeniable because people believe them, even as they must be resisted. (italics added).

Playwright Arthur Miller, looking back on the wreckage of the twentieth century:

The ultimate human mystery may not be anything more than the claims on us of clan and race, which may yet turn out to have the power, because they defy the rational mind, to kill the world. 17

It’s time to consider the idea again. The counterculture movement – an idle, luxurious offshoot of our now-vanishing middle class prosperity – is now generally recognized as the intellectually bankrupt, selfish movement it always was.

Camille Paglia:

My generation of the Sixties, with all our great ideals, destroyed liberalism, because of our excesses.18

Therefore anything arising out of “the Sixties”, including the myth-based, victimhood-fetishizing, identity politics engaged in by our grievance-obsessed Indian and non-Indian elites, is deservedly suspect.

South African apartheid was an especially sordid variation of segregationist policies. Nelson Mandela, who Canadians lionized both during his lifetime and on his death as a wonderful exemplar of progressive and humanist thinking in this area, advocated the complete abolition of all traces of racial segregation in the laws of the new South Africa. He advocated the establishment of a legal regime of all races living in a state of complete legal equality.

The present circumstances of Canada and Canada’s Indians should compel us all towards working to establish in Canada Nelson Mandela’s positive and inspiring vision and goal of one set of laws for all.


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  1. From the U.S. government submission in Bell vs. Maryland, 1960 (a Negro discrimination case), quoted by journalist I.F.Stone in his book,  In a Time of Torment,  London: Johnathon Cape Ltd., 1968.
  2. Espanola Mid North-Monitor 10 March 2010.
  3. from Ruffled Feathers- Indians in Canadian Society, Bell Books Ltd. Calgary 1971 (“Ruffled Feathers”)
  4. From Dances With Dependency (above), quoting with approval John Stackhouse, from a 14 part Globe and Mail series, Canada’s Apartheid, “First Step: End the Segregation,” December 15, 2001.
  5. Betty Radice, quoting Montesquieu in her Introduction to Edward Gibbon’s The History of the Decline and Fall of the Roman Empire, (“Decline and Fall“)The Folio Society, London, 1983
  6. Said at the Ontario Bar Association Conference on the topic, Advancing Reconciliation , Review of Recent Key Decisions and what Deconstructing the Current Colonial Legal Structure Could Mean, February 8th, 2018. The “2018 Advancing Reconciliation”conference. Mr. Bell was described in his introduction as “a modern day Renaissance man.” To be fair to this gentleman, he did not advocate the goal that I advocate in this essay. Like the other speakers, he was not able to articulate any long range, ameliorative goal other than that there should be a greater “redistribution of wealth”.
  7. How Islam Created Europe, The Atlantic, May 2016 (italics added)
  8. Nicholas Kristof, What Monkeys Can Teach Us About Fairness, The New York Times, June 3rd, 2017
  9.  Globe and Mail, December 5, 2015
  10. Like Ojibwe David Treuer wrote of Black Elk, of the Lakota people, (read his universalist vision in the Introduction, above), “he was determined to live and adapt. That doesn’t make him less of an Indian, as I see it; it makes him more of one.” These words apply full-on to Mr. Wuttunee.
  11. To be ignorant of what occurred before you were born is to remain always a child.” -Cicero, quoted in Hiking With Nietzsche- On Becoming Who You Are, by John Kaag, Farrar, Strauss and Giroux, New York, 2018. “Nietzche never lost his most basis philological sensibility, the awareness that to flourish in the present, one must first comes to grips with the distant past.”
  12. “Cancellation was the beginning of the sixties for me, the great disconcerting wipeout of all that had gone before.” Playwright Arthur Miller, Timebends-A Life, Harper & Row Publishers, 1987
  13. Susan Sontag, from her Introduction to The Case of Comrade Tulayev, by Victor Serge, New York Review of Books Classics, 2004
  14. Christopher Lasch, The Culture of Narcissism- American Life in An Age of Diminishing Expectations, W.W. Norton & Company, 1991
  15. Friedrich Nietzche, quoted in Hiking With Nietzsche, above
  16. From In Europe`s Shadow, Two Cold Wars and a Thirty Year Journey Through Romania and Beyond, Random House, New York, 2016, an historical primer on the evils of ethnic, national or racial group thinking, (with a focus on Romania.)
  17. From Timebends- A Life, Harper & Row Publishers, 1987, his wonderful autobiography.
  18. Quoted in Tony Judt’s Ill Fares the Land,The Penguin Press, 2010