‘Making It Someone Else’s Problem’

A Canadian community must get a court order to ‘banish’ anyone from their district, unless it’s an aboriginal reserve – yet another example of Canada’s legal and structural Segregation. More aboriginal communities are looking to remove their bad elements using this distinction…

“A northern Ontario ‘First Nation’ {aboriginal community} is looking to banish drug dealers and alcohol bootleggers from its community. Moose Cree ‘First Nation’ {a ‘nation’ of 4,781 people} held a membership meeting this week to discuss how criminal traffickers could be kicked out of the isolated community on Moose Factory Island in Ontario’s far north.

“Chief Mervin Cheechoo says the details of exactly how dealers would be identified and removed still needs to be worked out…

Elders are suffering. There’s a lot of elder abuse, violence toward elders and money being taken from them. Children are neglected and hungry and a lot of them are missing school“,
he says.
It’s real bad here. People are struggling here.

“One challenge is that while Moose Cree could kick criminal traffickers off their territory, they don’t have control over all of Moose Factory Island, which they share with the Moocreebec {sic} ‘First Nation’, as well as some private land owners. The dealers could also move across the river to the sister community of Moosonee.

{That’s the MoCreebec Eeyoud ‘First Nation’, “the eleventh Cree ‘First Nation’ to be recognized by the Cree ‘Nation’ Government”; however, it’s NOT recognized by the Canadian government…
https://www.mytimminsnow.com/38440/mocreebec-people-on-the-move-on-two-huge-issues/ }

“Exactly who is targeted for banishment and whether or not they need to be convicted of criminal charges before that happens is another question that needs to be answered.

I think the courts will play a big part in it. We’re not really fully there with every detail yet“, 

{He is obviously unaware that the simple passage of a reserve by-law will give the Band council the authority, unlike all other Canadian communities. Canadian courts have already established this. See below…}

–‘James Bay Cree First Nation looks to banish drug dealers and alcohol bootleggers’,
Erik White, CBC News, Nov. 01, 2019
https://www.cbc.ca/news/canada/sudbury/moose-cree-first-nation-banishing-drug-dealers-1.5342090
See also:
Different Strokes for Different Folks – Banishment’:
“This isn’t a discussion about the efficacy of ‘banishment’, but about the fact that Canada’s discriminatory Constitution treats aboriginals and aboriginal reserves differently than all other Canadians. In this case, ‘banishment’ can only be done by court order {See below} – unless it’s an aboriginal reserve…”
https://canadiansforlegalequality.wordpress.com/2019/10/29/different-strokes-for-different-folks-banishment/
^^^^^^^^^^^^^^^^^^^^
From 2018:
“The Opitciwan ‘First Nation’ {‘Atikamekw d’Opitciwan’, a ‘nation’ of 3,092 people} is an Aboriginal people of Canada who benefit from the rights arising from s. 35 of the Constitution Act, 1982, including the right to self-government. Under this principle of self-government and in accordance with the power conferred by s. 81 of the Indian Act, the Band Council adopted a by-law “respecting the expulsion of persons found guilty of trafficking certain drugs and other substances”, that allows the Band to banish any person found guilty of such offences by a court from their reserve for a period of sixty months. This by-law came into effect on January 1, 2017.

“The defendant was found guilty of trafficking narcotics on March 22, 2017, by the Court of Quebec. On August 1, 2017, the Band Council adopted a resolution in accordance with the above by-law to expel her from the community until March 22, 2022. Despite the various attempts to apply the by-law and resulting resolution, the plaintiff ignored these requests by hiding in private homes in the Opitciwan community. Consequently, the Band Council has failed to expel her.

“The Court ordered the defendant to leave the borders of the Opitciwan Indian Reserve and to remain outside these borders until such time as sanctioned by the Band Council. Any peace officer or bailiff is authorized to assist the plaintiff in the execution of this judgment, the whole at the plaintiff’s mere verbal request and regardless of the premises in which the defendant is to be found, such that they may be entered and the defendant escorted to the border of the Opitciwan Indian Reserve. As well, the Court acknowledges the plaintiff’s undertaking to execute the expulsion measures in such a way that the defendant will not be left alone or without support at the borders of the Opitciwan Indian Reserve.”

–‘Conseil des Atikamekw d’Opitciwan c Weizineau, 2018 QCCS 4170’,
Native Law Centre, December 6, 2018
https://words.usask.ca/nativelaw/tag/banishment/
^^^^^^^^^^^^^^^^^^^^
And from 2016:
“A Saskatchewan ‘First Nation’ seeking to keep its territory free of drug dealers and pedophiles is moving to pass a law allowing it to banish “undesirable people”. Chief Austin Bear of Muskoday ‘First Nation’ {a ‘nation’ of 1,634 people} said in an interview this week that the Band council will conduct a referendum before the end of October asking members to approve a banishment law that he said will be the first of its kind in Canada.

“Muskoday and other Canadian ‘First Nations’ have in the past used Band council resolutions to evict people from their communities… Muskoday’s law will fall under a partial ‘self-government’ regime called the ‘First Nations’ Land Management Act’, which gives signatory Bands the power to manage their own lands.

Myself and council, the elders, we have a sworn obligation to uphold peace and good order and to protect our community from harm”,
Bear said.
You’ve got to have ways and means of doing that, and laws are the most acceptable way.

“He said Band lawyers have advised him that a law invoking the band’s land-management power is the best way to enforce banishment of what he called “undesirable people”.

Our land code speaks to protection of our lands but also to the health and safety of our members”,
he said.

{This whole approach, of course, is just dumping their problem people into some other community’s lap. It would be far more effective if aboriginal leadership would demand an end to lighter ‘Gladue’ sentencing, and a government investigation into aboriginal gangs and their role in prostitution and drugs…}

“In the last six months, the Band council has passed resolutions evicting five non-members suspected of dealing such drugs as crystal meth and crack cocaine on the reserve, about 25 kilometres southeast of Prince Albert. Bear said non-members abide by the council resolutions, but Band members are more likely to object because they
are astute to what council can do and what (it) can’t do.

“He said the extreme step of kicking people out would be a last resort for

matters that are dangerous or have negative outcomes for our community, its members, our children”.

“He gave the examples of someone who has served a sentence for homicide, a drug dealer or a “known pedophile”.

“He said the power would not be used to silence political dissent.

I made it clear to our members in our community meetings that this in no way was intended to be a witch hunt”,
he said.

{But what prevents that from happening? Canadian, not aboriginal, law…}

“Val Napoleon, who holds the ‘Law Foundation Chair of Aboriginal Justice and Governance’ at the University of Victoria, said that there is a precedent for banishment in ‘indigenous’ legal tradition {This is Canada, 2016!}, but that does not necessarily mean it is a suitable {or legal} punishment in the 21st century.

Part of what you see with these actions that are going on in Saskatchewan, is you see people who are frustrated. You see people who are concerned. You see people who are trying to act on obligations to keep their community safe”,
she said.
In this day and age, I think questions have to be asked about the efficacy of different methods.

“She said more research is needed to understand how ‘indigenous’ legal traditions can best be adapted to the modern context {It’s simple – you MODERNIZE and ADAPT your tribal traditions, like ALL other tribal cultures have done or are doing…}.

The concerns are whether particular actions are going in the long run to be more harmful to families and communities, whether by just sending problem people to other ‘indigenous’ communities or into a city, you’re not really helping them”,
she said.
There’s a whole range of questions.

“Benjamin Ralston, legal editor at the University of Saskatchewan’s ‘Native Law Centre’, said banishment has been an issue on reserves going back to the 1990s.

“Criminal courts have upheld temporary banishment from a reserve as a condition of probation. But a 2000 Federal Court case found that a Band council resolution ordering the removal of a couple from Manitoba’s Norway House ‘First Nation’ {a ‘nation’ of 7,031 people} for drug possession was illegal. Although Judge Francis Muldoon found the Band council’s intentions were admirable, its actions required a bylaw and not a simple resolution.
https://ca.vlex.com/vid/gamblin-v-norway-house-680769741
https://www.canlii.org/en/ca/fct/doc/2000/2000canlii16761/2000canlii16761.html

“Bear acknowledged the Muskoday bylaw could one day face a Charter challenge {Because this violates a Canadian citizen’s rights…unless you’re aboriginal and on a reserve}, but he is confident history is on the Band council’s side.

It was a practice before contact (with Europeans)”,
{That doesn’t justify anything. Slavery also was “a practice before contact (with Europeans)”!} he said.
If the behaviour or actions of a member of the ‘nation’ caused a threat to the ‘nation’, banishment was a way of dealing with that individual.

{Yes, before the advent of modern Nations, tribal communities used some form of banishment. It’s interesting how aboriginal racial nationalists use ‘international law’ to justify many of their claims, but also wish to revive tribal customs like this one that fly in the face of ‘international law’…}

–‘First Nation’ seeks first-of-its-kind power to banish ‘undesirable people’ from territory’,
Graeme Hamilton, National Post, September 20, 2016
http://news.nationalpost.com/news/canada/first-nation-seeks-first-of-its-kind-power-to-banish-undesirable-people-from-territory
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