Property Wrongs II

I got a couple of responses to my post last week about the Canadian government signing an agreement with the Musqueam band in BC. (Folks do write me from time to time.) One was from a resident of the contested area saying she and her neighbours are indeed concerned about what it means for their own property holdings. Here are two quite separate follow-ups to that post.

1. Marc Miller

Marc Miller is the federal minister who negotiated the Musqueam agreement. The Globe ran a story on March 9 titled

Musqueam deal ‘nothing to do with’ private property, says Marc Miller

In the article Miller is quoted by the Globe as saying exactly that. The article also includes this:

The government says the agreement recognizes Musqueam Aboriginal rights “including title within their traditional territory,” which the nation asserts is an area encompassing much of Metro Vancouver.

That sentence, coupled with Bruce Pardy’s explanation of the court ruling that aboriginal and individual, fee simple rights cannot co-exist, would indeed have me worried if I lived where my western correspondent does, and I would not find Mr. Miller’s quote claim reassuring. Nor would this sentence from the Globe story do any better:

Miller says “opportunistic political types” and “a bunch of ignorant people” were weaponizing the ruling, which was about acknowledging rights of one of the “more oppressed Indigenous groups in B.C.”

Call me ignorant, but it might be harder to ‘weaponize the ruling’ if a) it had not been negotiated in secret and then announced only after its signing, and b) Mr. Miller or someone in the federal government took the time to explain what the agreement actually does.

Ok, so I guess I should not expect that, and thus went here to read the agreement for myself. It did get published after it was signed. I guess that’s like a labour contract. You could read it too, but I warn you – it’s long. And abundantly opaque.

This appears in the Agreement’s Preamble:

D. Musqueam has unextinguished Rights and Title within the Musqueam Territory. Musqueam has and continues to exercise Rights and Title within its traditional territory. The existence of Musqueam’s unextinguished Rights and Title within Musqueam Territory is not contingent on recognition by court declaration or any agreement.

Here is what the agreement says about its own purpose:

2.1 The purposes of this Agreement are to:

a) recognize Musqueam’s Rights and Title within Musqueam Territory;

b) demonstrate progress in incrementally implementing Musqueam’s Rights and Title;

c) contribute to the implementation of the UN Declaration;

d) provide a foundation for reconciliation and an ongoing mutually beneficial relationship taking into account Musqueam’s and Canada’s interests;

e) set out Fundamental Principles, General Provisions, and procedures to guide and facilitate the Incremental Implementation Agreements; and

f) to guide Future Discussions and Negotiations of potential future Incremental Implementation Measures

based on a new nation-to-nation, government-to-government approach and in accordance with Canada’s commitment to implement the UN Declaration through measures developed cooperatively with Indigenous peoples, including Musqueam.

I reckon it is a) and b) above that I would be worried about if I lived in the affected area, as per Pardy’s analysis of aboriginal title. But it says nothing specific. Of course not.

A section 5 titled General Provisions includes this:

  5.1 This Agreement does not constitute a treaty or lands claims agreements within the meaning of sections 25 or 35 of the Constitution Act, 1982.

  5.2 This Agreement does not create, amend, define, establish, abrogate or derogate from Musqueam’s Rights and Title.

So, I dunno. What is it that has been agreed to here? Possibly not much – yet – but I really cannot tell.

2. McGirt vs. Oklahoma

Another regular reader (they’re out there, really) wrote me to ask if I was familiar with the McGirt vs Oklahoma case in the States. In fact, I had read something about it back in the day, but had forgotten all of the details. So, I went looking to see if this US case was in any way parallel to what is happening in BC.

In fact, it seems quite different. In a 2020 decision, the US Supreme Court ruled that the land reserved for the Muscogee Nation by Congress had never been ‘disestablished’, and so the State of Oklahoma had no right to prosecute members of that band for crimes committed there. This was extended to nine other Indian bands by a lower court, applying the McGirt ruling, so that most of the eastern half of Oklahoma is now free of state law enforcement. The original case was brought by one Jimcy McGirt, a registered Seminole, who was charged with sexual abuse. In June 1997, McGirt was found guilty, and was sentenced to life in prison without the possibility of parole, plus two consecutive 500-year sentences. The Supreme Court ruling meant that his charge and conviction under Oklahoma law was invalid.

In the immediate wake of McGirt, Oklahoma courts began reviewing past criminal cases involving Native Americans, vacating past convictions, and transferring the matters to the federal courts for criminal prosecution. However, the Oklahoma Court of Criminal Appeals effectively ended this practice by issuing a controversial ruling that McGirt was not retroactive. Apparently federal law still applies on these lands, as they remain part of the USA. An FBI press release dated Feb of 2021 notes that this has led to a large increase in the case load of the FBI in Oklahoma.

So far as I can tell, the repercussions of this remain unclear but ongoing. For example, in August 2023, the Supreme Court declined to hear a decision from the Tenth Circuit US court which ruled in favor of a tribal member who was ticketed for speeding by the Tulsa police within the portion of Tulsa that was within Muscogee territory. The member challenged the ticket on the basis of McGirt. The ruling from the Tenth Circuit asserted that because of McGirt, the city could not enforce municipal regulations against tribal members on the parts of the city in tribal lands.

So, no one in Oklahoma is losing their home or property due to this SCOTUS ruling, but it remains unclear what is its impact on law enforcement in – so far, at least – Oklahoma.