The Sleeping Giant Awakens: Genocide, Indian Residential Schools, and the Challenge of Conciliation
256
The Sleeping Giant Awakens: Genocide, Indian Residential Schools, and the Challenge of Conciliation
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Overview
Confronting the truths of Canada’s Indian residential school system has been likened to waking a sleeping giant. In The Sleeping Giant Awakens, David B. MacDonald uses genocide as an analytical tool to better understand Canada’s past and present relationships between settlers and Indigenous peoples. Starting with a discussion of how genocide is defined in domestic and international law, the book applies the concept to the forced transfer of Indigenous children to residential schools and the "Sixties Scoop," in which Indigenous children were taken from their communities and placed in foster homes or adopted.
Based on archival research, extensive interviews with residential school Survivors, and officials at the Truth and Reconciliation Commission of Canada, among others, The Sleeping Giant Awakens offers a unique and timely perspective on the prospects for conciliation after genocide, exploring the difficulties in moving forward in a context where many settlers know little of the residential schools and ongoing legacies of colonization and need to have a better conception of Indigenous rights. It provides a detailed analysis of how the TRC approached genocide in its deliberations and in its Final Report.
Crucially, MacDonald engages critics who argue that the term genocide impedes understanding of the IRS system and imperils prospects for conciliation. By contrast, this book sees genocide recognition as an important basis for meaningful discussions of how to engage Indigenous-settler relations in respectful and proactive ways.
Product Details
| ISBN-13: | 9781487518059 |
|---|---|
| Publisher: | University of Toronto Press |
| Publication date: | 05/09/2019 |
| Series: | UTP Insights |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 256 |
| File size: | 2 MB |
About the Author
Read an Excerpt
CHAPTER 1
Understanding Genocide: Raphael Lemkin, the UN Genocide Convention, and International Law
I'm pretty sure that their legal thinkers would have been well aware of the fact that if they simply had adopted the convention into Canadian law that everything they did after the convention would have rendered them culpable to a claim of genocide. Anything they did before the convention, they might have been able to free themselves and argue that they were not subject to the convention because it didn't exist in law before then.
Senator Murray Sinclair on Canada's restrictive definition of genocide in the Criminal Code (2017)
In June 2012, I drove a Hertz rental car, a white Chevy Malibu, up Broad Street and then along the flat ribbon of Highway 11 from Regina to Saskatoon to attend the TRC's Saskatchewan National Event. It was not my first National Event, but it was the first in my home province, a province that included twenty-two residential schools. Saskatoon was similar to other National Events in its careful planning; crowds of people, including large numbers of Survivors; health support workers; and church officials and volunteers. It was also similar in the frequent invocation of genocide by Survivors. An understandably emotional Ted Quewezance, the former chief of the Keeseekoose First Nation, said it plainly during a Commissioner's Sharing Panel: "This is genocide, Mr. Commissioner. ... We, as little boys and girls, lost our innocence. ... We lost our lives, our identity, our language, our culture and our family."
Most Survivors with whom I have spoken have a clear understanding of what genocide means, and many do not hesitate to apply that understanding to their experiences. In late 2012, I became one of many academic consultants for the TRC; in my case, I had the responsibility to write a draft chapter on genocide for the commissioners to consider for their Final Report. While my work for them was confidential, this book draws in places on that research, while also reflecting the influx of much new information since that time.
Legal theorist William Schabas, who has spent many decades writing on genocide and working on war crimes tribunals, puts the matter starkly: "In any hierarchy, something must sit at the top. The crime of genocide belongs at the apex of the pyramid." This chapter focuses primarily on the UN Genocide Convention of 1948 and how genocide is officially defined in international and domestic law. In the next chapter, I will argue that the convention is a far-from-ideal lens through which to make sense of genocide against Indigenous peoples as part of colonization, given that the legal definition is intimately tied to state power and that states (some of whom were committing genocide) have exerted control over how genocide is defined, both internationally and domestically.
In this book, I use the terms legalist and pluralist. The first refers to those who centre their understandings of genocide on the UN convention, while those in the second group may or may not use the convention as a basis of analysis, and critically explore the problems behind its creation and the groups it actively excludes. Legalists tend to focus on state agency and anchor their understanding of genocide within a Holocaust paradigm. Pluralists, by contrast, are far less focused on states and political objectives and are more interested in the genocidal impulses and social forces within a given society. They may also seek to significantly redefine what genocide means and should mean.
This chapter will focus primarily on legalist means of defining genocide, with the next chapter highlighting aspects of the pluralist turn and what it means for understanding colonial genocides. Legalist scholars, who pioneered genocide studies, were influenced primarily by the Jewish Holocaust and the Armenian genocide. Genocide theorist Alex Hinton has observed that the Holocaust constitutes the prototype of what most people think genocide looks like. With it, Rwanda and Armenia figure as the "triad," followed by a series of "core" genocides of the twentieth century, a "second circle," a "periphery," and "forgotten genocides." This triad represents uncontroversial cases for the applicability of the Genocide Convention. These are deliberately planned mass murders on a grand scale, in the context of an international or interstate war, with an obviously racist perpetrator using its full range of bureaucratic and military instruments to affect the annihilation of a relatively defenceless minority population, who have been actively and publicly demonized through propaganda.
Indigenous genocides in settler colonial states do not always fit this standard view of what "real" genocide should look like. Often, there are no international or localized wars taking place. One or more groups are certainly targeted by the state, but settler populations, animated by racist sentiments, may play a larger role in the unfolding violence. Their racism might be overt or even unconscious, merely an assumed understanding of what is desirable and what is not. The targets are often numerous groups who are artificially lumped together because a colonizer, usually European, has assumed control of an expanse of territory that encompasses them all. Genocide can consist of a perpetrator literally creating-by-identifying a group that never existed before, then seeking its destruction at the very same time.
Raphael Lemkin's Neologism
Born in 1900, Polish Jewish legal theorist Raphael Lemkin coined the term genocide in 1944 and, through dogged persistence, laid the foundation for the UN Genocide Convention only four years later. There is a certain tragic quality to Lemkin, a pale, balding, bespectacled man, forever, it seems, down on his financial luck, living hand to mouth in the fleabag hotels of New York, yet driven to seek justice for oppressed peoples in the world. He was raised in an atmosphere of racial violence and poverty, where anti-Semitic pogroms were not uncommon. His interest in law was kindled by a sense of needing to right injustices, and he was particularly taken by state crimes against minorities such as Armenians and Jews. Governments, it seemed, had legal impunity to massacre their own populations without any international consequences, while members of minority groups striking back often felt the full brunt of domestic law.
Developing a legal framework for the protection of minority populations was a central preoccupation for Lemkin, and it grew all the more pressing as Nazi Germany prepared to invade Poland in 1939. Lemkin fled to Sweden that year, eventually making his way to the United States, where he later taught at Duke and Yale Universities. Forty-nine members of Lemkin's family stayed in Poland, and they were consequently shipped off to the Treblinka death camp and gassed in 1943. During his time in Sweden, Lemkin penned his magnum opus, Axis Rule in Occupied Europe, offering a comprehensive overview of Nazi policies in the lands they conquered. In trying to make sense of the horrific events swirling around him, Lemkin combined the Greek word for "tribe" or "race" (genos) and the Latin suffix cide, used in words such as homicide and fratricide.
What stands out prominently is how broadly Lemkin applied his new term to a wide range of crimes. Genocide, he observed, was "a coordinated plan of different actions aiming at the destruction of the essential foundations of the life of national groups, with the aim of annihilating the groups themselves." Yet killing was not crucial, and as such, "The objectives of such a plan would be disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups." Indeed, killing marked only the final stage of genocide, and Lemkin was clear that "the machine gun" was often "a last resort" instead of the primary means of destruction.
The fundamentally tragic element of genocide was that each culture and group had something unique to offer to humanity as a whole. Lemkin observed in 1946:
Our whole heritage is a product of the contributions of all nations. We can best understand this when we realize how impoverished our culture would be if the peoples doomed by Germany, such as the Jews, had not been permitted to create the Bible, or to give birth to an Einstein, a Spinoza; if the Poles had not had the opportunity to give to the world a Copernicus, a Chopin, a Curie; the Czechs, a Huss, a Dvorak; the Greeks, a Plato and a Socrates; the Russians, a Tolstoy and a Shostakovich.
Culture was the bedrock from which these people and ideas flourished. Contributions might be seen in two primary ways. First, the group, by virtue of its existence, provided an intrinsic service to its members, who wished to belong to the group and perpetuate its identity. At a second level, the group contributed certain extrinsic functions, acting as an incubator for talent that enriched not only the group but the wider human population as well.
Eventually basing himself in New York near the fledgling United Nations, Lemkin worked tirelessly to have genocide adopted as a crime in international law. His broad-based World Movement to Outlaw Genocide lobbied UN member states to have a genocide convention drafted into law. Behind the scenes, he was an advisor to the secretary general, and he took to occupying unused offices at the UN as a means of cajoling, badgering, and flattering state delegations, often in equal measure.
In late 1946, the UN General Assembly met for the first time, and Lemkin worked with India, Cuba, and Panama on a genocide resolution, which was passed in December. Lemkin and two other legal theorists then worked with the UN Secretariat to create a draft text, consequently revised by a committee formed by the Economic and Social Council, then followed in 1948 by discussions and further refinement by state delegations at the Sixth Committee of the General Assembly. By late 1948, the final text was submitted to the General Assembly, which unanimously adopted it.
There are differences between the 1947 and 1948 drafts, and they are of crucial importance to understanding how Indigenous genocides are often ignored in international law. In particular, the 1947 draft envisaged genocide in three forms: physical, biological, and cultural. Of these, it saw cultural genocide as an integral component of genocide, as Lemkin outlined in June 1947:
National, racial or religious groups do not exist only physically. Their main characteristics lie within the provinces of spirit and culture. If one destroys these valuable elements of their life, members of such groups are reduced to the stage of robots. Their contribution to world civilization ceases.
For Lemkin, there was something special about groups that inherited cultural, linguistic, religious, and/or other traits from their ancestors and passed them down to succeeding generations. A human group was to him "a living entity with body and soul," whose destruction would leave "a vacuum in human society." He reasoned, "Our whole cultural heritage is the product of the contributions of all peoples, races and creeds." For Lemkin, it was never central to the definition of genocide that members of a group be targeted with death because the key issue was the group's ability to continue its existence into the future.
The original May 1947 draft included cultural genocide as one of its three aspects. While Lemkin saw cultural genocide as another type of genocide alongside the other forms, the process of codification separated out cultural genocide and described five methods of destroying the specific characteristics of a group:
(a) forcible transfer of children to another human group; or
(b) forced and systematic exile of individuals representing the culture of a group; or
(c) prohibition of the use of the national language even in private intercourse; or
(d) systematic destruction of books printed in the national language or of religious works or prohibition of new publications; or
(e) systematic destruction of historical or religious monuments or their diversion to alien uses, destruction or dispersion of documents and objects of historical, artistic, or religious value and of objects used in religious worship.
Of these, only part (a) survived the vote of the Sixth Committee of the General Assembly and eventually made it into the final draft. Lemkin viewed this as a personal failure, lamenting, "It meant the destruction of the cultural pattern of a group, such as the language, the traditions, the monuments, archives, libraries, churches. In brief: the shrines of the soul of a nation. But there was not enough support for this idea in the Committee. ... So with a heavy heart I decided not to press for it." The excision of cultural genocide is significant for those of us trying to interpret Indigenous genocides in settler colonial contexts, given that settler and colonial states were committing many of the above acts, while often at the very same time deliberating how genocide should be interpreted in international law. The final draft of the convention defined genocide as follows:
Any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
In the remainder of this chapter, I review several salient aspects of genocide in international law, using the convention and later international case law to help situate my later analysis. Legal decisions pertinent to this analysis include definitions and findings from the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC), all of which have helped refine the UN definition.
Who or What Can Be Charged with Genocide?
While Lemkin was clearly interested in the fate of human groups as groups, his focus on collective responsibility did not make it into the convention. While sub-state units such as the National Socialist German Workers' Party could be disbanded for their role in genocide, the state itself could escape such accusations and would retain its sovereignty, whatever actions were taken in its name or on its behalf. Instead, individuals would be charged with genocide, while states could continue their existence, although potentially with a change of government. This individual focus is obvious throughout the convention. Article 4 states that "Persons committing genocide or any of the other acts enumerated in article III shall be punished." Article 5 obliges contracting parties to "provide effective penalties for persons guilty of genocide," while Article 6 outlines the procedures for trying "Persons charged with genocide or any of the other acts." This raises important issues, such as those the TRC raised in 2015, when it argued that cultural genocide had been committed. Had it made a case for genocide under international law, the state itself would not be liable for a genocide prosecution. Rather, individuals, most of whom were long dead, would have been the targets of any legal action.
International Case Law and Key Elements of the Crime of Genocide
At the top of the definition of genocide is the chapeau (French for "hat"), which lays out the ground rules for interpreting crimes. Proving genocide in international law is uniquely difficult because the legal bar is set extremely high, at the level of a specific intent (in Latin, dolus specialis) to "destroy, in whole or in part, an identifiable group of persons." Under the UNGC, general intent is insufficient. A group's destruction, in whole or in part, must be clearly and explicitly sought by the perpetrators. The Holocaust set a near-impossible benchmark for the burden of proof, given that we have the minutes of the 1942 Wannsee Conference, which set out plans for the murder of eleven million European Jews in thirty-five regions, and an enormous number of supporting documents outlining the goals and scope of Nazi plans. This unique situation is not replicated in other cases, and it was largely a fluke of history that the Wannsee minutes, owned by Foreign Ministry official Martin Luther, were discovered at all. Given that a smoking gun or "direct evidence of genocidal intent" is rare, the ICTY Trial Chambers in the 2016 trial of Bosnian Serb President Radovan Karadzic concluded that intent could instead be "inferred from all the facts and circumstances." The judges concluded that one could, therefore, analyse such factors as "the general context, the scale of atrocities, the systematic targeting of victims on account of their membership in a particular group, the repetition of destructive and discriminatory acts, or the existence of a plan or policy." Further, "Display of intent through public speeches or in meetings may also support an inference as to the requisite specific intent."
(Continues…)
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Table of Contents
Introduction
1. Understanding Genocide: Raphael Lemkin, the UN Genocide Convention, and International Law
2. Pluralists, Indigenous Peoples, and Colonial Genocide
3. Forcible Transfer as Genocide in the Indian Residential Schools
4. The Sixties and Seventies Scoop and the Genocide Convention
5. The Truth and Reconciliation Commission of Canada and the Question of Genocide
6. The TRC, Indigenous Death, Inside and Outside the Residential Schools
7. Indigenous Genocide: Remembering, Commemorating, Forgetting
8. Indigenous Peoples and Genocide: Challenges of Recognition and Remembering
9. Reconciliation, Resurgence, and Rollback in the Aftermath of Genocide
What People are Saying About This
"The Sleeping Giant Awakens presents a thorough and forceful examination of Canada's history with Indigenous peoples. By exploring the colonial, even genocidal, legacy of the Indian residential school system, This book represents a tough, timely, and thoughtful account. Our progress towards reconciliation depends on a true and unflinching acknowledgment of this dark chapter in Canadian history."
"The Sleeping Giant Awakens presents a thorough and forceful examination of Canada's history with Indigenous peoples. By exploring the colonial, even genocidal, legacy of the Indian residential school system, This book represents a tough, timely, and thoughtful account. Our progress towards reconciliation depends on a true and unflinching acknowledgment of this dark chapter in Canadian history."
"The Sleeping Giant Awakens is a significant assessment of the Truth and Reconciliation Commission and the legacy of Indian Residential Schools. It comes at a watershed time in Canadian history. While grounded firmly in the academic literature, MacDonald uses language that will be easily accessible to a general audience and draws upon the insights of Indigenous scholars and writers in making his argument. It will be an important resource in talking about historical truths that continue to resonate today and which need to be acknowledged if there is any hope for reconciliation in this country."
"David B. MacDonald incites the reader to do some serious soul searching about the true nature of Canada. Canadians are called upon to engage in fresh thinking and create a new, right, and respectful relationship with Indigenous peoples. It will involve deep questioning of the status quo, vision, and imagination to clear the new path. The Sleeping Giant Awakens is a catalyst for necessary change."
"The Sleeping Giant Awakens probes the decolonizing, transformative potential of (re)conciliation between Indigenous and settler peoples in Canada through the lens of settler colonial genocide. MacDonald argues that the United Nations Genocide Convention (UNGC) applies to Canada's Indian residential school system and Sixties/Seventies Scoops, deepening our understanding of how genocidal systems and structures function over time in settler colonial states. Documenting the Truth and Reconciliation Commission of Canada's work and challenging Canada's settler colonial historical and multicultural narratives, he MacDonald makes a compelling case for why Canadians must confront a hard truth − that government actions to destroy Indigenous peoples' cultures, governance systems, and laws through forcible child removals and land dispossession constitute genocide. Settler peoples must then accept responsibility for taking up the TRC's calls to action in ways that roll back state rights to fully recognize Indigenous rights of self-determination and resurgence and ensure the return of Indigenous lands. A must-read for all those who care deeply about the ongoing journey of truth, justice, and reconciliation in post-TRC Canada and beyond."
"The Sleeping Giant Awakens offers the most robust consideration of the genocide question in Canada to date. It provides a clear view of the complex origins of the genocide concept, as well as its applicability to Indian residential school and scoop-related child transfers in Canada. MacDonald's lengthy engagement with this topic and his keen, inquisitive mind are evident on every page of the book." He has travelled widely in Canada, read broadly, and, most importantly, listened carefully to Survivors and Elders. For this reason, he focuses not only on naming the harms of settler colonialism but also on what a deeper sense of conciliation might mean for Indigenous-settler relations."