Treaty Rights

April 1, 2009

“I am going to explain to you gentlemen how our ancestors were created in this place, right over at the high land here known as Scale-Up, or English Bluff.” This is how Harry Joe opened his arguments before the McKenna-McBride Royal Commission on Indian Affairs during its hearings at the Tsawwassen Indian reserve on April 28, 1914. He began with a story about arriving, and that’s the important part. After all these years, with Joe’s great-granddaughter, Kim Baird, at the middle of it, the story is still about arriving.

English Bluff is a place name that comes from the 1910 Admiralty Chart. Scale-Up comes from S’tlalep, a complex Hun’qum’i’num term that can be rendered as I Want From Now and Everlasting. Harry Joe was a prosperous fisherman and farmer who proudly displayed his vegetable varieties at the New Westminster agricultural exhibition every year. He was also chief of the Tsawwassen Indian band.

The grievance that Chief Joe put before the royal commission was this: back in the 1860s, the government had been disgracefully parsimonious in its allocation of reserve land to the Tsawwassen people. There was still good farmland around the village, Chief Joe said, but it was going to waste. Indians had been legally prohibited from pre-empting and developing land, so they had to settle for whatever the government gave them. Chief Joe and his people once owned all the land they could see for miles and miles around, and they’d been left with almost nothing. The Tsawwassen people needed more land.

The royal commission said no.

Harry had a son, Simon, who married Philomena “Birdie” Adams from the Katzie tribe. Simon and Philomena had a daughter named Edith who moved to Langley and married a white man named Lorne Baird. Edith raised four sons and a daughter, Kim. After Lorne died, Edith and her children led something of a vagrant life but eventually arrived back at the Tsawwassen reserve and settled down.

Kim was 15 then. She was the one with the leather goth-punk gear and the huge hair and the six-foot white boyfriend with a blond Mohawk. She ended up being the first kid on the reserve to graduate from high school in nearly two decades. She enrolled at Kwantlen College in Surrey and drove there every morning in her beat-up 1976 Toyota Celica automatic, a puddle of radiator fluid at her feet. It was at college that she started to learn some things about what Harry Joe was angry about. So she took up his cause.

When Baird was 20, she signed on as a Tsawwassen treaty researcher. She got elected to band council two years later. Seven years after that she was elected chief, and the Tsawwassen First Nation has now—after 17 years of talks in 50 sets of negotiations that have so far cost about $1 billion—concluded the first and only full treaty to result from the B.C. Treaty Commission process.

Baird, a solid, hearty woman with a big smile and a big laugh, is serving her fifth term as chief. She plans to run again. The transition out of the Indian Act is a mammoth task, and it will go on for quite some time. About a third of the Tsawwassen people are unemployed, the average household income is about a third of that in the surrounding community, and the high-school-dropout rate hovers around 50 percent. There’s a lot of work to do.

Ultimately, the treaty was concluded according to marching orders given and ratification votes taken by the Tsawwassen people themselves, and the final deal was approved by the Tsawwassen people, by three to one. But the treaty has been Kim Baird’s life’s work, and you could say that it’s because of her determination and single-mindedness that the Tsawwassens have burst upon the scene as one of B.C.’s most business-savvy aboriginal communities, with the first modern urban treaty in Canada. Baird was pregnant with Amy, now five, when she signed the treaty’s agreement-in-principle, and she used to breast-feed Amy during negotiations. She gave birth to Sophia, now two, three days after signing the final agreement. The treaty comes into force on April 3, and Baird’s due with her third child in early May.

Only a generation or so ago, Tsawwassen was a quiet village surrounded by lush fields and woods and a glorious, gently sloping, southwest-facing clam beach. It’s now a strip of houses encased by the roaring traffic of eight million people a year on the Tsawwassen ferry causeway on one side and the massive, ever-expanding Roberts Bank coal port and container terminal on the other.

You turn off Highway 17 just before the ferry causeway, below English Bluff, and drive north down a narrow road. You mind the speed bumps. First you pass Rick Jacobs’s little house—he’s 88—on the right. Then you pass the cemetery, with its shell mounds and the white crosses that mark the graves from the Spanish influenza, back in Harry Joe’s day, when the people barely had time to bury their dead. Then you pass Andrea Jacobs’s house. Marvin Joe’s house is the big one with the gillnet boat out front, and then you pass the Westwind, an old Japanese-style gillnetter. Then there’s David Joe’s house, then another gillnet boat, and just beyond Tina Koller’s house there’s another gillnetter, the Tuff Stuff II. And then there’s a row of pleasantly modest 1980s-style suburban tract houses where most of the Bairds live. There’s Kim’s place, her brothers’ houses, and her mother Edie’s house.

There are a few more houses, mostly Joes, Eelys, and Jacobses, then you’re at a cluster of Atco trailers and low-slung wood-sided office buildings. There’s the youth centre, the old community hall, the elders’ centre, and the band administration, and inside that building, Baird is curled up in an Indian blanket on a couch in a cramped corner office that looks out on the salt marsh fronting the reserve.

Although the treaty will more than double the Tsawwassens’ land base, this will still leave the roughly 360 Tsawwassen people with less land per person than the original 1860s reserve allocation that so animated Chief Harry Joe. Which is kind of a paradox.

“I know,” says Baird. “It’s been painful.”

The treaty’s contents and most of the means by which the pact was sealed are matters of public record—and public controversy. The federal Indian Act entity known as the Tsawwassen Indian band will cease to exist. Its 290-hectare Indian reserve will disappear into 724 hectares of settlement lands, some owned by individual Tsawwassen members, some by the Tsawwassen First Nation. The Tsawwassen government will be mostly a municipal-style affair, joining the Metro Vancouver board with some distinct jurisdictions in culture and social welfare. Cash transfers of about $30 million will play out over about 15 years as Indian Act tax exemptions are phased out. The treaty guarantees access to fisheries for food, social, and ceremonial purposes, and also provides commercial-fishery access rights.

The hullabaloo clause was the one that allows the Tsawwassens to remove 207 hectares from the province’s shrinking Agricultural Land Reserve. The plan is to develop them in tandem with a $47-million economic development deal Baird negotiated five years ago with Deltaport’s Roberts Bank container terminal, which is quadrupling in size. Rarely mentioned in all the shouting was that the disputed farmland was destined to come out of the ALR anyway; besides, the amount of farmland involved would support perhaps a single economically viable farm. Plus, 227 hectares of “new” Tsawwassen lands will end up within the ALR, something that wasn’t possible before the treaty, because the ALR doesn’t apply to Indian reserves.

The Union of B.C. Indian Chiefs opposed the treaty. The Tsawwassens’ neighbours, the Semiahmoo, were joined by three Sencot’en tribes from Vancouver Island in a failed court bid to stop the treaty. The day Baird became the first aboriginal woman in history to address the British Columbia legislature, the Tsawwassen elders who accompanied her had to walk to the legislative precinct past demonstrators who shouted that the treaty was a fraud and a sellout. And yes, there is a lot in the treaty that’s not to like, Baird agrees, not least the Tsawwassens’ concession to give up their constitutionally entrenched title to their lands. “But at the end of the day, I don’t think that’s the kind of thing that will affect the lives of our members,” she says. “Ultimately, you have to be pragmatic.”

This brings us back to the story Chief Joe told the commissioners in 1914, about how the Tsawwassen people emerged on that beautiful beach all those years before. There was a man named Tsaatsen who came down from the clouds and found himself on top of Mount Cheam, the Mountain of Dogs, at the eastern frontier of the Chilliwack tribe. Tsaatsen was looking for land to settle on, Chief Joe explained, and he saw on the western horizon an island in the sea. This was the land now known as the Point Roberts peninsula. Geologists tell us that Point Roberts was indeed an island around the time the record of human settlement at Tsawwassen begins, nearly 50 centuries ago. It was below the bluff at its northwest corner, long known to the Tsawwassen people as S’tlalep, that Tsaatsen built his house. This is the story that Kim Baird will tell you.

But there is another story, every bit as old. You’ll hear it still from some of the old people at Tsawwassen. This one also begins in the Chilliwack territory, except in this account the first Tsawwassen is a woman. In order to comprehend it, it is necessary to know that the story unfolds in the days before Khaals the Transformer brought order to the Coast Salish world, which is to say it takes place at a time when people and animals were not yet confirmed in their forms, and could change from one into another.

The story begins with a beautiful young high-born woman who finds that the handsome young man she has taken as a lover is really a dog. She discovers she is pregnant. Filled with shame, she resolves to flee her upriver village. She steals away in a canoe and heads down the Fraser River towards the sea. At last she arrives at Tsawwassen, bears a litter of pups, and begins a life there. But one day, returning from fishing, she finds her offspring singing around the campfire: “Our mother thinks we are puppies, but we are children, we are human, like she is.” And so they were.

Which brings us to an afternoon 20 years ago, when the archaeologist Geor­die Howe was busy with a “salvage” operation in the forest on the corner of the reserve that lies on the south side of Highway 17, just below the bluff. Howe was working at the edge of a vast burial-mound complex that had been disturbed by a road the band administration was punching through. Howe reckoned that the burial mounds were so extensive they could easily contain the remains of “as many as 10,000” people. From that one small corner of the complex, Howe and his team removed more than 100 skeletons, some of them 4,000 years old. There were tombs of what were believed to be some class of royalty, buried with lovely copper ornaments, scallop shell rattles, and in one tomb, more than 30,000 stone beads. Some of the graves gave up not human bones but, strangely, canine mandibles.

It was a heartbreaking time for the Tsawwassens for a couple of reasons. It brought back into the light a glimpse of their life before the onslaught of smallpox nearly obliterated the Coast Salish universe in the 1770s. It also opened memories of a time when they flourished in one of the planet’s most important migratory waterfowl staging areas, and just a short canoe run from some of North America’s richest salmon runs. As recently as the early years of the 20th century, at the lowest tides of the year, you could still see the stakes and pilings from the remains of the Tsawwassens’ ancient network of massive sturgeon traps, each trap the size of a football field. And that life, all of it, was gone.

The second reason it was such a hard time also involves the business of arriving. Around the time the road went through the edge of the burial mounds—a road that would give access to the band’s profitable Tsatsu Shores condominium development—dozens of people were being added to the Tsawwassen band’s membership rolls. These were people who had regained their “Indian status” following the passage of Bill C-31, a federal law aimed at undoing discriminatory Indian Act rules that had stripped Indian women of their Indian status if they had married non-Indians. Their children also lost their status.

It was also around this time that the Tsawwassen band was distributing benefits from the lucrative Stahaken leases, which allowed for a posh subdivision all along English Bluff, or S’tlalep, or I Want From Now and Everlasting. The reserve was flush with cash, and so with intrigues and arguments, and there were a lot of new people around—C-31s, they were called. They were distant cousins, in-laws, and the children of in-laws nobody had ever seen before.

By 1857, all that was left of the Tsawwassen community, according to the Northwest Boundary Survey Commission, was “a small settlement consisting of a few Kanakas [Hawaiians] & Indians.” The Tsawwassens limped into the second half of the 20th century with about 50 members. By the time the Bairds arrived home in the 1980s, there were about 150 people on the band list but only a dozen houses on the reserve. Now there are about 70 houses, and the membership exceeds 400 people. Only about half live in the community, but all the adults get to vote. They vote for chief and council. They vote on important decisions. They voted for the treaty.

It’s among the Tsawwassen families who you could say “never left” you will find the hard core of treaty opponents and dissenters. “I think it stinks” is the way Bertha Williams describes the treaty, especially the way it was negotiated and approved. She goes through the litany: the elders were “bribed” with the promise of a $15,000 signing bonus, the provincial government paid the airfare for faraway band members to attend meetings, and so on. But her main complaint is that the process was swamped by C-31s, who carried the day. “What do these people know about our reserve?” Bertha Williams asks. “We’re losing the bloodline. Some of these people have blond hair, blue eyes, the whole thing.”

To each of Williams’s complaints, Baird has an answer. “I feel terrible for the community,” she says. “There’s just so much change, so fast.” But she, too, remembers the days when the burial mounds were opened, and the self-styled environmentalists from South Delta who came out in droves when the Tsatsu Shores deal was approved. “Save the Herons,” their placards read. “No More Handouts.”

By the time Baird arrived at Tsawwassen she’d lost her father—he died when she was eight—and gone through a half-dozen schools in Langley, Surrey, and Delta. Always on the honour roll but always the outsider, her mother says. Shy as a mouse. Baird remembers, too, taking the bus from the reserve to Delta Secondary School and the friends she lost because their parents wouldn’t let them hang around with kids from the reserve. Her older brothers, Ken, Terry, and Mike, lived in a vine-covered house down on the beach. Kim lived with her mother and her kid brother David in a trailer at the north end of the reserve.

There were lots of women who came back around that time, and some didn’t make it. Kim’s aunt Lonni drank herself to death. The hostility the women faced was something incredible. “But man, those women were warriors, let me tell you,” says Baird, whose husband, the father of her children, is a carpenter, a white man.

You would not want to tell Kim Baird that her children are not Tsawwassen.

The story of Tsaatsen from Mount Cheam can be reconciled with the Dog People story. Tsawwassen was once so populous its people could easily have come from several ancestral lineages, with several genesis stories. The reconciliation of Crown sovereignty with aboriginal rights, the point of treaty-making, is also achievable, even in a heavily urbanized and industrialized landscape. The Tsawwassen treaty proves that. The Tsawwassens will never again have to stoop to begging for land the way Harry Joe did.

But reconciling the tensions among the Tsawwassens, between those who never left and those who have recently arrived, is going to be harder still. “One thing you’ll notice about people who oppose the treaty is they tend to be the people who have a hard time getting rid of their anger. It’s not that people don’t have good reason to be angry,” Baird adds quickly. “I just don’t think people realize the kind of stress that aboriginal people go through.”

As for the widespread interest the treaty has drawn, Baird is resigned to the spotlight. “For me, it’s been like living under a microscope,” she says. “I don’t particularly like having to deal with the media. I don’t exactly crave the attention, to be honest.”

The treaty’s real significance lies in the brave step Baird has taken. It’s a bold move out of the culturally and economically crippling conversation around questions of aboriginal rights, Crown sovereignty, and Native/settler relationships. The Tsawwassen treaty says, quite simply, goodbye to all that. It’s time to move on.

It’s a story about arriving.

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