Indigenous citizenship test: lawyers argue up to a third of Australians at risk of deportation

Weird case and arguments. Unlikely that this would happen in Canada but if anyone knows  of any comparable Canadian cases, would be of interest:

Indigenous Australians’ connection to the land is “important but not equivalent” to allegiance to Australia, the commonwealth has argued in a landmark case fighting for the right to deport two Aboriginal non-citizens.

Lawyers for the two Indigenous men, backed up by the state of Victoria, are arguing the Australian government cannot deport Aboriginal or Torres Strait Islanders even though they don’t hold Australian citizenship because the constitutional definition of “alien” can’t be set by the government of the day through citizenship law.

The plaintiffs, Daniel Love and Brendan Thoms, were born in Papua New Guinea and New Zealand, each with one Aboriginal parent, and face deportation due to laws which allow the cancellation of visas on character grounds. Their fight to stay now hinges on a special case arguing that although they are non-citizens, they are also not aliens.

At a hearing on Thursday, counsel for the two men, Stephen Keim, argued that the high court’s second Mabo decision contained an “understanding of the history of European settlement and imposition of the sovereignty of the crown” which should guide the common law in the way it deals with “a multiplicity of legal issues” beyond native title, such as citizenship.

Chief justice Susan Kiefel suggested that Victoria’s submissions had taken the court into the territory of “Mabo No 3” – a “much wider proposition” that could have implications in many other areas of law.

Keim submitted on behalf of the plaintiffs that Aboriginal people are “permanent Australian nationals and not aliens in Australia” unless they abandon that status.

Source: Indigenous citizenship test: lawyers argue up to a third of Australians at risk of deportation

Trump’s immigration policy is caging indigenous children. This is the America Native people know.

Although intemperate in language and tone, does not diminish some uncomfortable parallels within both the Canadian (e.g., residential schools, 60s scoop) and US context:

Donald Trump and his nasty administration are anything but unique. In fact, whether they know it or not, they are repeating U.S. history in more ways than one.

Here, in McAllen, Texas, indigenous people fleeing violence and seeking asylum are, right now, locked in chain-link cages and lying on concrete floors, where the sound of frightened, crying kids and mothers and fathers fearing for their children is eerily audible if you just listen closely.

I know because, on Saturday, I joined a caravan of fellow Native Americans who traveled to McAllen from as far away as Los Angeles and Denver and New York City to protest and call for the immediate end to these camps of loss and anguish.

As Native Americans, we have a unique perspective on such cruel American government policies that rip brown babies from their mothers’ arms and, in some cases, turn them over to white families to raise in the white way.

That has already happened to at least one woman locked in the fangs of this immigration crisis, Encarnacion Bail Romero. A judge gave her baby to a white family, and they immediately changed his name to Jamison. But the boy already had a name; his name is Carlitos.

Even the Trump administration’s former director of the Office of Refugee Resettlement, Scott Lloyd, admitted in a deposition to trying to connect a pregnant minor in his agency’s care — who wanted an abortion — with a couple that had written the agency interested in adopting babies to which the American government might have access, as though they were some child repository for white folks.

This is a frightening thing for these brown, immigrant families because only after their child is taken from them do they learn U.S. law allows the government to terminate parental rights of any child in foster care for 15 of the last 22 months — and the same groups handling many of the foster care arrangements for separated children are well known in the mostly-discredited international adoption community.

But this type of evil behavior — separating families and stealing children — is nothing new, says Juan Mancias, the tribal chairman of the Carrizo Comecrudo Tribe of Texas. “They’ve been doing [this] for 500 years,” he said. McAllen is on Mancias’s ancestral territory.

“When [the white people] came we didn’t consider any of them illegal,” he said. “We were open to them. They were two-legged; we knew they were relatives.” But it didn’t take long, he said, before “they began taking our women and children and killing our men. Then we got an idea of who they really were.”

Chrissie Castro, the organizer of the protest and chair person of the Los Angeles City and County Native American Indian Commission, said Native peoples have migrated freely across this continent since time immemorial, and now they’re being demonized for crossing an imaginary border. “The false narrative that our relatives are somehow foreign to these lands is inaccurate and hateful,” she said. “We’re not going to sit by and let this cruelty and injustice happen again.”

At the demonstration, indigenous folks lined the street holding banners reading, “We didn’t cross the border, the border crossed us!” and “Ban ICE” and “Can’t call my folks illegal if yours crossed the sea!” and “No ban on stolen land!”

At one point, an elder, Emma Ortega, of San Antonio, Texas, who is of the Carrizo Comecrudo and Lipan Apache tribes, took the microphone and denounced a colonial government who’d dare call this “their land.” “This is free land. This is our land!” she bellowed. “And it will always be our land, no matter what they say!”

This is all part of a larger movement: All across the nation, people of all stripes and creeds are protesting America’s latest concentration camps. Catholic priests and Jewish rabbis, peace activists and parents who have never even carried a sign are turning out and even getting arrested in protest of the Trump administration’s family separations, the cruelty of ICE, the foul treatment of children in their care and the ongoing, forcible separation of brown families seeking safety.

But this is America being what America has always been — racist, vicious and vile to indigenous people, whilst standing on a soapbox of morality as a beacon for the world. There’s no decency in this country because there never was any, not from day one when Columbus and the rapists he towed with him blundered onto our shores.

And that’s what we saw at McAllen on Saturday — the same racism with a different name in a different century, and many of the descendants of the very same people brutalized by Columbus and those who followed in his footsteps locked in new chains.

We’ve seen this type of raw racism when Native babies were ripped from the loving embrace of moms and dads, stolen away to Christian boarding schools in the east where they were flogged with Bible passages and pierced with sewing needles through the tongue if they dared speak their language.

For more than 500 years, this country has viewed the original inhabitants as nothing more than animals. They’ve called us “savages” and “uncivilized,” and in places like North Dakota and Washington, D.C., they still do. Even prison inmates and dogs are treated more humanely than the indigenous peoples in these concentration camps, one congresswoman said.

“Prisoners in the United States in my estimation are treated better than migrants,” House Representative Jackie Speier, Democratic representative from California’s 14th Congressional District, wroteafter visiting the McAllen. “If dogs were kenneled in the overcrowded, unhealthy conditions we observed at the Border Patrol Station, the Humane Society would immediately shut it down,” she added.

And this is just one of many of the new concentration camps sprawled across this morally bankrupt nation. But it’s nearly as old a concept as separating indigenous babies from indigenous parents.

Today, the president is resurrecting that kind of good ol’ American racist fear with his wretched propaganda, and he has convinced millions of Americans that caging these children is part of making American great again. But this is a lie. This country was never great; it was always the opposite of great, because it has always had this capacity for cruelty, and it has, more often than not, acted on that capacity with the flag in one hand and the Bible in the other.

If this capacity for cruelty is what we deem great, it’s a great testament to our depravity as a nation, and as humans, because there’s nothing as perverse and disturbing as a country that voluntarily separates families and tortures and traumatizes innocent children.

There were no walls or borders or prison camps until the white man came. Now they’re everywhere — and that’s not patriotism, that’s hate.

Source: Trump’s immigration policy is caging indigenous children. This is the America Native people know.

Australia: High court to rule on whether Indigenous people can be deported from Australia

Can’t resist following this absurd argumentation by the Australian government:

The federal government’s attempts to deport two Indigenous men have gone before the high court, examining what lawyers for the two men have said are “absurd” circumstances.

The two men in the separate cases, Daniel Love and Brendan Thoms, were both born overseas to at least one parent who is Indigenous and holds Australian citizenship. They both have Indigenous children, and Thoms is a native title holder.

However, neither formally applied for Australia citizenship and, after being convicted of “serious” crimes and given jail sentences of 12 months or more, both had their visas cancelled under the government’s controversial character test provisions.

The law firm Maurice Blackburn is now asking the high court to determine if an Aboriginal Australian in the men’s circumstances is an “alien” for the purposes of the constitution.

It is the first time the court has been asked to rule on the commonwealth’s use of its alien powers in this way, and the lawyers now representing the two men argue the term must be defined by the court, not parliament.

“Historically we are a nation of immigrants and our ancestors come from other places, except for Aboriginal Australians,” said Claire Gibbs, senior associate at Maurice Blackburn, who is acting for the two men, before the hearing. “The importance and significance of that should be reflected in the common law.”

Love and Thoms are not the only Indigenous people who have faced deportation under the character test provisions. Guardian Australia has previously reported on the case of Tim Galvin, and it is believed there are a number of others.

Love was born in Papua New Guineain 1979 to a PNG citizen mother and Australian citizen father, and automatically acquired PNG citizenship.

The family travelled back and forth until they settled permanently in Australia when Love was five and he was given a permanent residency visa. Love is a recognised Kamilaroi man.

Thoms was born in New Zealand in 1988 to an Australian citizen mother and New Zealand citizen father. He automatically acquired New Zealand citizenship at birth, and was entitled to apply for Australian citizenship, but never did.

He has lived permanently in Australia since November 1994 under a special category visa. Thoms is a recognised Gunggari man, and a native title holder under common law.

In 2018 both men were separately convicted of crimes and sentenced to 12 and 18 months respectively. Both had their visas cancelled under the government’s controversial section 501 of the migration act, relating to character, and were taken to immigration detention.

Gibbs said being put in immigration detention had taken a devastating toll on her clients’ mental health. Gibbs said bringing the case before the court was not seeking to interfere with the government’s power to deport people who were “genuinely non-Australian”.

“What we think is wrong is the government using the power to detain and deport people who, on any commonsense measure, are Australians, like my clients.”

Love was given his visa back under ministerial discretion but Thoms remains in immigration detention after more than seven months.

Gibbs welcomed the return of Love’s visa but said there there were clearly “inconsistencies” between the two cases and that was why the high court needed to determine if the government was using the power lawfully.

In submissions to the court, the men’s lawyers argued that Indigenous people “cannot be alien to Australia” and were “beyond the reach” of that constitutional power.

Indigenous people are known to have inhabited Australia for as much as 80,000 years and are “a permanent part of the Australian community”, they said, and the two men “do not, and have never, owed allegiance to a foreign sovereign power”.

“The statutory definition of citizen is distinct from, and does not control, the constitutional definition of alien and, therefore, that the plaintiffs are not Australian citizens pursuant to Australian citizenship legislation does not automatically mean that they are aliens.”

In defence, the Australian government submitted that whether the men were Indigenous or native title holders was “irrelevant” to the question of their alien status.

“Acceptance of the proposition that Aboriginal people, as a class, were not and are not ‘aliens’ does not entail the proposition that any particular Aboriginal person is not an ‘alien’,” the government’s submission said.

It said certain principles, which were “fatal” to the plaintiffs’ case, “ought now to be regarded as settled”. They said it was an agreed fact that neither plaintiff was a citizen, and “non-citizen” was the same as “alien”.

Numerous cases supported these findings, the submission said, and the plaintiffs had not sought to reopen those cases.

Legal arguments began on Wednesday, with the government citing the high court’s section 44 ruling on MPs, and the men’s lawyers citing significant cases including the Mabo decision, and the high court ruling on Amos Ame, a Papua-born man who was an Australian citizen by birth but who could be treated as an alien.

The government’s push to deport an increasing number of people under the character test provisions has raised numerous complications, including for Indigenous people and those born in PNG before its independence in 1975.

A complex web of citizenship laws and successive changes to them in both PNG and Australia has threatened to leave some people stateless, as both countries assumed people had citizenship of the other and revoked their own, but failed to properly communicate it to individuals.

Source: High court to rule on whether Indigenous people can be deported from Australia

Australia’s citizenship program should focus on Indigenous introduction, Darwin linguistics teacher says

As IRCC prepares the revised citizenship study guide, with what I understand extensive consultations with Indigenous peoples (to be released later this year?), some interesting reflections from Australia on improving the understanding of Indigenous peoples and new citizens, and language:

As Ganesh Koramannil passed through Sydney Central train station in 2004, a man approached and asked him for $2.

It was an interaction he would have long forgotten, except the man was the first Indigenous Australian Mr Koramannil had ever met.

It could have remained among his only insights to a culture with more than 60,000 years of history, had his wife not turned down a job in Canberra to take up one in Maningrida, 500 kilometres east of Darwin.

After moving to the Arnhem land community four years after arriving in Australia to study English, Mr Koramannil was finally introduced to “the most welcoming culture” he had ever come across, which he said had unprecedented similarities with his own.

“You give an Aboriginal language speaker any Indian name, they will pronounce it very clearly without any accent. Give it to the Europeans, they will give you six varieties,” he said.

“There’s linguistic similarities between Aboriginal languages and Indian languages. My mother tongue for example is Malayalam. There are sounds that are very much part of Yolngu language.

At the time of publishing, Mr Koramannil was the only Territorian to write a submission to the Australian Citizenship Legislation Amendment Bill 2018, which aims to toughen the eligibility requirement for new migrants to become citizens.

But Mr Koramannil said that for many migrants, their knowledge of Indigenous Australia would never extend far beyond his experience at the Sydney train station.

He said Australia’s immigration program offered no systemic way of introducing newcomers to Indigenous culture.

Instead of introducing stricter tests and eligibility requirements, Mr Koramannil has called for an “experiential” citizenship pathway, where migrants were taught about culture, history and values in dedicated sessions.

“The link to our Indigenous past and its present and future relevance [should] be included as a mandatory requirement for citizenship,” he said.

Tougher citizenship test proposed

The original bill to toughen up citizenship requirements was struck down 2017, when the Government missed the deadline for the Senate which saw it struck off by default.

The Greens, Labor and the Nick Xenophon Team had all opposed the changes.

But One Nation senator Pauline Hanson introduced it again 2018 and it was referred to a committee for inquiry.

Among the proposed changes will be a separate English language test, which will check for a ‘competent level’ of listening, speaking, reading and writing skills.

It would also increase the general residence requirement, meaning newcomers will need to live in Australia for eight years before applying for citizenship.

The citizenship test would also include questions about Australian values and the privileges, and responsibilities of Australian citizenship.

In April 2017, when the first bill was launched, Prime Minister Malcolm Turnbull said the Federal Government was “putting Australian values at the heart of citizenship processes and requirements”.

The Multicultural Council of the Northern Territory wrote a submission to last year’s bill, stating that while it was important for migrants to learn English, proficiency should not be an indicator for a person’s ability to make a positive contribution.

It said the idea may have adverse impacts for those from non-English speaking backgrounds and humanitarian entrants.

“It is our experience that fluency in English to the level proposed for migrants from non-English speaking backgrounds in a stand-alone English language test is not usually gained within the period of settlement, but can be viewed as a lifelong skill,” it said.

It said many of the proposals were “at best, unnecessary and, at worst, divisive and counterproductive”.

‘Language cannot be devoid of racial identity’

During Mr Koramannil’s time in Maningrida, he said Indigenous children, who had seldom met an Indian person before, would come up to and say “You are from India”.

It fascinated him.

“I said ‘How did they know?’ You know Maningrida — 600 or 700km away from here, one of the largest standalone Aboriginal communities — and kids of six years old [recognised me],” he said.

Looking back on it, he said he believed the children had sensed a familiarity between the two ancient cultures, just as people who spoke more than one language could recognise features of languages they didn’t speak.

In his opinion, if citizenship tests focussed so closely on English proficiency, it would come at a cultural and linguistic cost.

Mr Koramannil now works in Darwin teaching linguistics at a tertiary level.

The way he sees it, language is so deeply ingrained in a person’s racial identity that selecting citizens based on their language skills is tantamount to profiling.

“[Selecting people based on] language is profiling. And these days we speak multiple languages. And especially people trying to come to Australia, very few people won’t be bilingual.”

As a linguistics professional, and former IELTS examiner, he said he’d seen many “monolingual anglophone Australian professionals” fail to get their band score in writing.

The only reason he could see for such a test was to keep people of certain backgrounds away.

“The question is why are you trying to keep people away? Do keep people away on character for example, criminal background and that. But language is racially profiling,” he said.

Mr Koramannil said forming connections with Australia’s culture, values and history should instead form the basis of citizenship.

He believes newcomers should spend some of their time in Australia prior to becoming citizens learning about the country’s past, culture and values.

He has suggested ‘cultural welcome centres’, where Indigenous people could meet new migrants and explain their perspective of Australia to them, acting as “cultural translators” and helping forge connections.

Senate Standing Committee on Legal and Constitutional Affairs is due to file a report by December.

The ABC has contacted the committee for comment.

Source: Australia’s citizenship program should focus on Indigenous introduction, Darwin linguistics teacher says

Why Indigenous Languages Should Be Taught Alongside French and English

Chelsea Vowel makes the case (the practicalities will be a challenge):

There are constitutional protections and billions of dollars of funding for Canada’s two official languages, but what of the languages of the original peoples on these lands? I’m not suggesting that all 70 Indigenous languages be made mandatory and offered in every corner of this country. Instead, we need to be looking at supporting these languages where they exist, on the lands whence they originate. In Iqaluit, that would be Inuktitut, while in Halifax it would be Mi’kmaq. Each province and territory should pass an Official Languages Act recognizing the Indigenous languages that originate in those areas, and bolster this recognition with funding to ensure language transmission continues in schools, workplaces, and government. Incentivizing second-language learning in an Indigenous language could be done by hiring speakers in daycares, schools, and public service positions.

It often feels as though we are being asked to justify the continuing existence of our languages to a Canadian audience who may not value them. I believe we need to remind Canada that Indigenous languages are an Aboriginal right, enshrined in section 35 of the Constitution, as well as an inherent right — to speak and pass on our languages — that is recognized internationally by the United Nations Declaration on Indigenous Peoples (UNDRIP), which Canada has officially adopted. What we need now is an implementation of those rights, supported with adequate funding.

Everyone stands to gain. Embedded within our languages are cultural concepts that have the potential to give all Canadians a deeper understanding of our place in relation to the world around us. Our languages have been systematically devalued for generations out of a misplaced sense of their inferiority. Yet many of the concepts currently being explored by Western medicine, environmentalism, and the humanities are foundational within Indigenous cultures and languages. Holistic health and teachings, understandings of interconnectedness with human and non-human beings, and ways of being in good relation with one another are all described in our various Indigenous languages.

Public perception has a powerful impact on policy, and when Canadians are told that Indigenous languages are on the rise, this obscures just how desperate the situation is. Twenty-four of the Indigenous languages listed in the census have less than 200 speakers each, and if what we truly need are highly fluent speakers, then even these numbers are likely inflated. Even among the so-called robust languages — Cree, Inuktitut, and Ojibway — language loss is speeding up.

We can and must start planning to offer these languages alongside English and French throughout the country. Don’t let a rosy reading of the statistics lull you into a false sense of security. In 10 years, we will once again count the number of speakers of Indigenous languages in Canada. Without immediate, robust, and heartfelt intervention, language decline will be irreversible. As someone who has fought hard to access and reclaim her own Cree language, I am asking Canadians to recognize that we are at a tipping point. Please, support us, and come learn with us.

via Why Indigenous Languages Should Be Taught Alongside French and English – Chatelaine

Josiah Wilson, the Indian Act, hereditary governance and blood quantum

Fascinating account of the different aspects of identity, ranging from bloodline requirements to culture, and the challenge this poses across a number of fronts:

The story of Josiah Wilson, the Haiti-born, Heiltsuk First Nation adopted basketball player, has raised questions of Indigenous identity much bigger than whether he should be allowed to play in an All-Native Basketball Tournament in B.C.

The tournament committee’s decision to ban Wilson, 20, a status Indian, because he doesn’t have at least 1/8th First Nations ancestry or “blood quantum” is a symptom of a greater conflict.

This conflict lurks in band offices, treaty offices, on the land and on reserves across the country.

What, or who, defines someone as Indigenous — is it the hereditary system, the Indian Act, a blood test?

According to the Canadian government, Wilson is an “Indian.” According to the Heiltsuk, he is Heiltsuk. And according to the All-Native Basketball Tournament, he is an adoptee, Canadian and Haitian, but not Heiltsuk.

Heiltsuk hereditary system

In the eyes of the Heiltsuk Hemas (hereditary chiefs), Wilson is Heiltsuk. The Hemas embody the Heiltsuk Nation’s traditional social structure and hereditary system of governance, which identifies members through cultural protocol and a connection to family crests and clans.

Heiltsuk Hemas standing with Haida Hereditary Chiefs

In the eyes of the Heiltsuk Hemas (hereditary chiefs), Josiah is Heiltsuk. Here, Heiltsuk Hemas are shown with Haida hereditary chiefs. (Don Wilson/Facebook)

Heiltsuk cultural adviser Frances Brown says the hereditary system is a complex set of laws that governs not only a responsibility to the land, but also social relationships to one another, including adoption.

“If there’s a customary adoption it means that you adopt a child and you do it in a potlatch where there’s many witnesses and the chiefs are there,” said Brown.

Gary Housty was one of the Heiltsuk Hemas to witness the ceremonial adoption of Wilson by a First Nations family. He says he wrote a letter to members of the all-native committee urging them to let Wilson play, but received no response.

“I really have a problem with the way they’re setting down rules that disallow people to participate in these very important cultural events, such as the All-Native Tournament. There’s so much culture there. And we are talking about culture here.

“In my eyes Josiah is a Heiltsuk boy, a Heiltsuk person. He belongs here with us,” said Housty.

Source: Josiah Wilson, the Indian Act, hereditary governance and blood quantum – Aboriginal – CBC

Indigenous peoples: In Canada, justice is not blind

The high numbers regarding indigenous incarceration rates are shocking. Comparable to Black incarceration rates in the USA:

While admissions of white adults to Canadian prisons declined through the last decade, Indigenous incarceration rates were surging: Up 112 per cent for women. Already, 36 per cent of the women and 25 per cent of men sentenced to provincial and territorial custody in Canada are Indigenous—a group that makes up just four per cent of the national population.

This helps explain why prison guard jobs are among the fastest-growing public occupation on the Prairies. And why criminologists have begun quietly referring to Canada’s prisons and jails as the country’s “new residential schools.”

In the past decade, the federal government passed more than 30 new crime laws, hiking punishment for a wide range of crimes, limiting parole opportunities and also broadening the grounds used to send young offenders to jail. At the same time, it has been ignoring calls to reform biased correctional admissions tests, bail and other laws disproportionately impacting Indigenous offenders. Instead, it appears to be incarcerating as many Indigenous people as possible, for as long as legally possible, with far-reaching consequences for Indigenous families.

But the problem isn’t just new laws. Although police “carding” in Toronto has put street checks, which disproportionately target minority populations, under the microscope, neither is racial profiling alone to blame. At every step, discriminatory practices and a biased system work against an Indigenous accused, from the moment a person is first identified by police, to their appearance before a judge, to their hearing before a parole board. The evidence is unambiguous: If you happen to be Indigenous, justice in Canada is not blind.

“What we are doing is using our criminal justice system to defend ourselves from the consequence of our own racism,” says Toronto criminal lawyer John Struthers, who cut his legal teeth as a Crown attorney in remote, northern communities. Rather than treat trauma, addictions, he says, “we keep the doors closed.”

Source: Cover preview: In Canada, justice is not blind – Macleans.ca