Pubdate: Wed, 21 Sep 2016
Source: National Post (Canada)
Copyright: 2016 Canwest Publishing Inc.
Contact: http://drugsense.org/url/wEtbT4yU
Website: http://www.nationalpost.com/
Details: http://www.mapinc.org/media/286
Author: Graeme Hamilton
Page: A1

FIRST NATION SEEKS POWER TO BANISH 'UNDESIRABLES'

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 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, but Bear
said such resolutions would not withstand a court challenge.
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."

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."

Val Napoleon of the University of Victoria said that there is a
precedent for banishment in indigenous legal tradition, but that does
not necessarily mean it is a suitable 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," she said. "In this day and age, I think questions have
to be asked about the efficacy of different methods."

"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 for drug possession was illegal -
a bylaw was needed.

Bear acknowledged the Muskoday bylaw could one day face a Charter
challenge, but he is confident history is on the band council's side.
"It 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."
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MAP posted-by: Matt