The
future of Aboriginal Self-Governance:
What
to do with the Indian Act?
November
6, 2012
What I initially meant to be a sober
and frank discussion of the future of the Indian Act has turned into a more subtle
and complex project than was initially expected. First, it has required some
research into the history of and motives behind the Indian Act, which has
uncovered some surprising results. Second, it has necessarily intertwined
heavily with the question of Indigenous self-governance, and what its nature
shall be.
It is perhaps more useful to
pinpoint what will not be discussed in this paper. For sovereignty to be
meaningful in the context of First Nations people, its nature must be
determined outside of the framework of the Indian Act, which must only act as a
formal means of delegating power within the hierarchy of Canadian Federalism.
How that power is constructed, deployed and shared is a matter of sovereignty;
it can only be determined at a local level by the nation itself, in
consultation with the various federal and provincial powers. As each nation has
its own traditions and concepts of what government and law are and how they
should function, any kind of distributed structure would be inconsistent with
the concept of self-governance itself. I will consequently not take any
position or provide any suggestions as to how the various nations should
organize themselves, other than to work under the assumption that each nation
will determine its own desired method of communication with the federal
government. Similarly, any laws or legal systems pushed down from above would
simply not be consistent with self-governance and will not be discussed here in
any manner; it is assumed that nations will fully organize themselves in
whatever manner that they see fit. The sole exception to this rule would be in
international law, where sovereign local governments would have a
responsibility to work with the federal government to ensure that treaty
obligations are met. This concern also extends to the Eurocentric concept of
"aboriginal rights", which in truth seems to be little more than a
linguistic gloss over of barely modified paternalistic and sometimes downright
racist attitudes, often within the context of accelerated assimilation.
Self-governance implies much more than being granted "rights of
self-determination" over issues of extremely local jurisdiction while the
same colonial powers continue to regulate nearly all aspects of existence.
I began the exploration of this
topic with a vague understanding of the Indian Act as an outdated,
paternalistic piece of legislation that should be largely abolished and have
ended it with a firm belief that it rather should (1) be modified to
decentralize power out of the hands of Ottawa and into the hands of local
nations and (2) be converted into a model for bilateral treaties between
individual nations and the different branches of government, and then enshrined
in a separate constitutional framework. A separate constitution for first
nations that upholds the rights of self-determination would make it virtually
impossible for the federal government to continue enacting arbitrary or
oppressive legislation, solving the problematic issue of a meddling and
paternalistic centralized government once and for all. As this is being
written, the federal government is once again modifying the Indian Act without
consulting First Nations. This must stop. It is only once both constitutions
are placed on an equal level that the original promise of "travelling down
the same river together"[1]
can be spoken of once again.
The Purpose of the Indian Act
Before we can understand what to do
with the Indian Act, we need to understand what it is, why it was written and
what its goals were. What we shall see is that all of these things have shifted
over the years along with the views of the dominant European-descended
majority, but that the government has maintained a roughly consistent desire to
annihilate Aboriginal societies; what has changed have largely been the methods
to accomplish this and views regarding the utility of assimilated Aboriginal
peoples.
The early Spanish explorers in the
western hemisphere, whom were subjects of the powerful Hapsburg Family, which
in the period in question always included the papal-crowned Holy Roman Emperor,
were actually obligated by law to acknowledge a Papal edict called the Romanus Pontifex that demanded that
"all Saracens and pagans whatsoever, and other enemies of Christ
wheresoever" be reduced to "perpetual slavery".[2]
While this later became the basis for the "Doctrine of Discovery",
which is still the legal justification underlying the relevant American case
law that allows for forced resettlement[3],
it was not a significant factor in the European colonization of Canada.
The first European settlers to Canada
came from Bourbon France,
which was never under the control of the Emperor; control eventually passed to England,
which had long distanced itself from Catholic hegemony.
The indigenous population had not
yet been corrupted by the notion of private property, which allowed both the
French and then the British to set up trading colonies with minimal (although
not zero) conflict.[4] Nor
was there any interest on behalf of either colonial power to ensure more than
the safety of their trade routes.[5]
Their primary concern in this matter was not even the indigenous population,
but each other; as is well known, the French and English were at war with each
other almost continually from 1066 until 1815. France's surrender to the
British in Montreal in the year 1760 did not bring an end to French colonial
interest in North America (that would have to wait until the end of the
American Civil War, when a faster than expected Union victory forced the
abandonment of an opportunistic plan to re-establish control of the continent
west of the Mississippi by invading and militarizing Mexico), but it did bring
an end to anything resembling the serious enforcement of French interests. More
importantly, the peace treaty of 1763 resulted in an unchallenged British
hegemony on the east coast of the continent. The royal proclamation of 1763
followed, primarily as a statement of that newfound hegemony.
What the Crown's real motives were
in restricting land sales to settlers will remain an open question to history,
but a few things about the proclamation are certain. First, it was more than
the formal transfer of captured French settlements and citizens to British rule
but also a declaration of ownership of all land previously claimed by the
French not as their own for personal use but as within an exclusive trade zone.[6]
While the French may have stationed troops on the borders of their economic
zone, and the result may have been protective for many indigenous peoples, what
they were concerned about was keeping British settlers out of their trading
zone, rather than owning the land. The kind of unilateral declaration of land
ownership seen in the proclamation had not been previously encountered in Canada,
but neither had the conditions or outcome of the French and Indian war. By the
end of the war, only the Iroquois remained aligned with the British, and this
alliance was mostly symbolic and quickly marginalized by the British as no
longer useful; all other nations within the exclusive French economic zone were
defeated, along with the French. This gave the war a previously unseen nature
of conquest to it that makes the land grab understandable within a Eurocentric
context.[7]
Now, that the Iroquois sided with the British was largely a function of earlier
contact with the French, the French having settlements closer to Iroquois home
territory and the British functioning primarily as trading partners; similarly,
most other nations sided with the French for the reason that they were in
conflict with British settlers and engaged in trade with France, who protected
them against those British settlers. The motive behind unilaterally taking away
the rights of indigenous people to sell their own land may very well have been
as simple as a view that they did not own the land at all, due to it being lost
to conquest. There are other indications that the British considered the tribes
conquered after 1760, such as a restriction on gift-giving, reference to the
natives as "subjects", a restriction on the sales of arms and
gunpowder and the building of forts against no other clear enemy besides
themselves.[8] It
should also be pointed out that the British already had a defined policy when
it came to settler expansion into occupied lands,
specifically that negotiating the formal sale of property before allowing
settlement was an "expedient" way to avoid potentially
successful hostile resistance.[9]
Of specific concern were possible disruptions to the peltry
trade.[10]
As is typical of British imperial and foreign policy, the Royal Proclamation
was in truth an elaborate ruse, itself the very cornerstone of the assimilation
policy that followed; what it meant to say is that it is less dangerous for
settler expansion and consequently better for harmonious trade relations when
the natives are cleared out of the land before the settlers try and move in
than it is for the settlers to move in by force, making it in truth a
proclamation for the safety of British settlers[11]
and, more importantly, their revenue. In fact, the direct result of the
proclamation was a series of guerrilla-warfare like attacks on British forts,
led by Seneca and Ottawa Chiefs, and with the hopes of inciting a French
uprising against the British and the eventual return of French forces[12];
the mostly illiterate and disconnected chiefs could not have known that the
Bourbons had sold them out for a steady stream of revenue from the sugar
producing regions of the Caribbean, but they clearly realized that the aim of
the proclamation was land expropriation.
There is a second reason that the
British adopted a policy of slow advancement after 1763 rather than one of
conquest. It seems to be clear that, at least in the immediate aftermath of the
Seven Years War, the British considered the tribes aligned with France to have
been conquered along with the French communities themselves. This is a complex,
subtle and difficult subject. On the one hand, the general view on the matter
in the scholarly literature and in legal tradition (very strangely
notwithstanding the relevant documents closest to 1763, which would be the most
relevant) is that none of these First Nations were ever conquered. Yet, the
policies and rulings produced by the crown and the court, along with the
ability to use coercive violence as an effective means of enforcement, sure
seem to suggest that this is the case. The answer to this apparent
contradiction lies in the application of typical British pragmatism to a bit of
a legal quandary. Until 1890, it was very firmly established Imperial
precedent, from centuries old case law stretching back to the medieval British
colonies in Ireland (that case law itself based on Roman approaches to military
occupation) and upheld repeatedly since that time, that a nation that conquers
another nation by force has a responsibility to uphold the laws of that nation,
unless they are "Unchristian", until such a time has come that the
conquered nation has adopted the norms of the conquering nation, at which point
the laws of the dominant party may be enforced. On the other hand, it was also
very established Imperial precedent that settlers moving on to unoccupied land
remained subjects of the Crown and consequently remained bound by Imperial law, until such a time comes that an independent legislature
is erected.[13]
Therefore, if the British Crown wished to uphold its apparently clear view that
the French-Aligned First Nations had been conquered, it would be required to
uphold their laws - which included ideas like communal ownership of land, which
at least one prominent British landholder of the period once referred to as
"wicked",[14]
in clear fear of its consequences for his own fortune.
What the Crown wanted to do, in
contradiction to its own Imperial laws, was treat North
America as an unoccupied land, to be peopled by settlers. This
would eliminate the need to recognize the aspects of indigenous culture that it
found most disturbing and most threatening. Yet, of course, the area was
peopled. So, how to get out of this mess? Well, should the Crown use force, it
would be forced to recognize indigenous law; should it allow settler expansion,
it would not be. When pressed on the issue, it would claim it had no control
over the settlers. There was never an appeal of the Proclamation's unilateral
declaration of ownership by means of conquest; in fact, it is still important
precedent. So, that ultimately renders well over a hundred years of native
legislation as unconstitutional under British law. Should this have been fought
judicially, it would have almost certainly been declared ultra vires; however, that would have
necessarily required that the first nations in question admit they had been
conquered. Might it have been more beneficial to take this approach? Some rule
of law, indeed.[15]
The intent of this deconstruction is
not to deny any beneficial consequences or legal protections that the
proclamation has eventually resulted in for indigenous North Americans so much as
it is to provide the necessary context in understanding the Indian Act, and
perhaps to point out that the proclamation was neither properly understood by
the angry British settlers that ignored it, nor by the Supreme Court of Canada
in it's late twentieth century rulings, although there is a possibility that,
in the latter case, this misunderstanding may have been intentional.
It did not take long for this policy
of slow, careful British expansion by the peaceful transfer of land through the
construction of treaties to transform itself due to shifting realities on the
ground; it took around ten years for the Crown to transfer it's ownership of
the Indian territory back to the province of Quebec and less than fifteen years
for the thirteen colonies to revolt, which resulted in a mass of migration both
to the north and the west. This is of course where American history separates
from Canadian history, and where the discussion will consequently leave
relations between Americans and Native Americans behind, other than to say that
the Americans favoured a more aggressive and violent approach to expansion than
the British did.
In Canada, the influx of loyalists
after the revolutionary war - which included native peoples that saw the
British as a lesser evil, most numerously the Iroquois - required that the
crown find a place for them to settle, and the policy of slow, peaceful
expansion was implemented to open up plots of land for that purpose. European
immigration to Canada
again increased dramatically after 1812, climaxing in the large Irish migration
of 1830-1850. The Crown encouraged this migration to try and people the
frontier for the purposes of creating a buffer that American
settlers could not break past - much as existed in the Appalachians,
when there were French soldiers stationed there. Due to all this immigration,
and other factors such as disease, the aboriginal population was around 1% of
the total population of the colonies of Canada at the time of confederation,
which no longer made providing them with any kind of special treatment remotely
important to British colonial interests; even by 1830, their numbers were so
small relative to the Europeans that they were no longer useful as possible
mercenaries and were transferred from military to civilian oversight, legally
reduced to mere imperial subjects.[16]
Throughout the period before confederation, the Crown experimented with two
primary approaches in resettling tribes after purchasing their land. The first
was a process of "civilizing" the tribes by settling them into
agricultural or industrial based towns with the ultimate goal of assimilation,
whereas the second was a process of removing the tribes to distant areas now
known as "reservations". These approaches had their supporters and
detractors, but shared the common goal of finding ways to reduce or eliminate
the government's financial costs related to aboriginal peoples. Neither became
official policy until 1847 when the government concluded that it could no
longer "protect" indigenous interests in Ontario from white settlers, if it ever had
any intention of doing so, and opened up native lands for fishing, hunting and
squatting by Europeans, thereby officially deciding upon the method of
assimilation in the east. The formal construction of reserves in Ontario followed in
1851. This was accompanied not just by the establishment of residential
schools, but also by the creation of church-run manual labour camps, to
"teach" the adult population how to perform hard labour. In 1857, the
Crown further flexed it's perceived ownership of the old French economic zone
by demanding that indigenous groups pay rent to access their traditional
fishing grounds, and by renting out leases of these fishing grounds to
non-aboriginal groups. While the government claimed that the aim of this was to
more equitably redistribute resources away from the Indians, who were taking
more than they needed, and towards the European-descended population, who did
not previously have rights to access those areas for fishing despite the
natives taking more than they needed, the legislation was in fact enacted in
order to prevent indigenous people from growing prosperous through the sale of
fish (to settlers) and was the direct result of a report that suggested that
fishing may be a more suitable and lucrative vocation to the tribes of the area
than farming, in an apparent challenge to assimilation polices; in other words,
the report that pointed out that fishing could be used as a powerful enough
tool of aboriginal economic development to provide for self-sufficiency managed
to convince officials that encouraging non-aboriginal fisherman to fish in
aboriginal lands would be an excellent way to raise revenue through taxation.[17]
Another important development occurred in 1857, namely the Gradual Civilization Act that forced enfranchisement for
"civilized" Indians. When put into the context of the Royal
Proclamation and the rule against imposing laws on conquered peoples until they are properly anglicized, the
proper framework for the next century of assimilation policies is understood:
this horrendously unjust act was actually an attempt to re-establish the lapsed
rule of imperial law. By the turn of the century, treaty rights were frequently
denied altogether as inconsistent with common law.[18]
Despite the influx of immigration,
the government found it difficult to find immigrants willing to settle in the
distant Prairie Provinces to people the border
with the United States
and prevent northward American expansion. The much warmer American Republic
was simply more successful in marketing itself to would-be European immigrants.
This was despite the passage of the homesteading act of 1872, which essentially
gave away free land; there was serious concern that the west would be lost to
the Americans. It started to become clear that the policy of slow settler
expansion was not the correct approach to converting the vast tracts of land in
the west into tax revenue; something else needed to be schemed up in order to
increase the flow of funds to the Crown and to protect the land as a source of
revenue. As the land was already peopled, it seemed strategic and
cost-effective to convert those inhabitants into taxpayers and commodity
producers. So, due to slow settler
population growth in the west, the policy of slow expansion finally evolved
fully into a universal assimilation policy, which is more or less where the
Indian Act remains today.
We can now speak of the purpose of
the Indian Act of 1876: it was to convert the indigenous peoples of Western Canada from nomadic hunter/gatherer/traders that
produced essentially nothing that could be effectively taxed into
food-producers for the export market, with the end goal to use the land
effectively as a means of revenue generation. While that statement may seem
shocking in the Canadian context, that shock is only as a result of our
peculiar level of ignorance and naïveté regarding our history. Canada was and
remains a colonial state. The purpose of colonialism has never been to steal
land and oppress minorities, although this is often a consequence of it, but
has always been to produce commodities for export to global markets for the
purpose of generating revenue for the aristocracy. On the surface, things have
changed over the centuries - aristocracy has been replaced by bourgeoisie, the
fur trade has been replaced by energy, minerals, lumber and whatnot - but the
general purpose of Canada
as an exporting nation within a class-stratified, European-dominated world
economy absolutely remains. The methods used to do this were forced education
in the residential school system, forced Christianization, expropriation of
land, a slow narrowing of the definition of "Indian" and forced
enfranchisement with the aim of destroying tribal society.
This policy of conversion to
agriculture was partially instigated by an inability to attract white settlers.
However, the indigenous population did not have a desire to convert to farming,
leaving the Crown in a losing situation. This problem was eventually solved by
specifically appealing to Scandinavian immigrants, who would be less adverse to
the climate. As immigrants started pouring in at the turn of the century and
concerns about the border largely dissipated, the desire for aboriginal farming
communities lost its impetus. Attitudes towards aboriginal people also
hardened; it became understood that if the natives would not choose to enter
white society on their own then they would unfortunately have to be forced into
it for their own good, or worse. Resentment also grew over the cost of
supporting native communities who refused to enter white society. At first, the
response of the government was to make the assimilation methods more violent,
like an abusive parent harming an unruly child, but this (unsurprisingly) did
not lead to the desired results. Feeling as though they had tried everything to
force the Indian to conform, the government then largely convinced itself that
the natives would not conform because they could not and that they never would.
Land treaties were ignored and hunting and fishing rights, both commercial and
subsistence, were denied to maximize tax revenue, with no interest in the
severity of the consequences. The rise of eugenics in North
America came shortly, which suggested and implemented even more
ghastly approaches such as involuntary sterilization. By implementing forced
sterilizations west of Manitoba, the remaining
parts of Canada
that still had functioning, sovereign indigenous populations adopted a position
that was a signature away from genocide against them, which is certainly not
very protective or paternalistic.
Postwar Developments
A further shift in policy occurred
after world war two. This shift was global, rather than local. It coincided
with global European decolonization, as well as the abolition of racism as an
acceptable form of thought in polite society. It also coincided with a rise in
democratic socialism. These things culminated in movements for autonomy all
over the world. In Canada,
the first successes occurred in the 1970s. Today, the Supreme Court recognizes
an inherent right to self-government and there were serious, but ultimately
failed, discussions about constitutional amendments in the 1980s and 1990s that
would have allowed for legitimate aboriginal self-governance. While some
progress has been made at an academic level, the federal government retains
exclusive control over all native lands. Victories for self-governance have
been minimal, and rarely substantial. Further, the policy of assimilation has
continued.
A new Indian Act was passed in 1951
that had two substantial changes in it. The first is the inclusion of s. 88,
which brings all Indians under the jurisdiction of general provincial and
federal legislation. The second was forced enfranchisement for women that married
enfranchised men; after years of legal battles, this was modified (and arguably
worsened) in 1985 by bill c-31, which both restored status to many people who
had been denied it and constructed a two-generation blood quantum rule that
some observers have argued will lead to total assimilation within only a few
generations. In reality, this is unlikely: more likely is that it will lead to
social conflict within a few generations. The legislation is simply another
piece in a long line of racist, assimilative policies that assume perceived
inferiority - if Indians are forced or encouraged to better themselves, they
will no longer wish to be Indians anymore. In fact, recent genetic studies have
backed up a number of folk tales that described Europeans escaping the
regimentation and fundamentalism of the colonies to live in freedom with
aboriginal peoples; the reality is that most tribes in the Eastern half of the
continent are majority European-descended in their male lineages[19]
(also see attached figures), which suggests that these folk tales must have
actually been describing a very substantial movement of people from the
colonies to the tribes. There are also legitimate historical records of
widespread intermarriage before the Royal Proclamation. So, the idea that
marrying out will slowly annihilate aboriginal culture
seems to be fantastical; inter-marriage has been occurring for centuries and it
has yet to destroy aboriginal identity. Not only will aboriginal peoples
continue to desire living their traditional lifestyles, but their traditional
lifestyles will continue to attract non-aboriginal people through marriage and
other bonds. Aboriginal identity is truly cultural, not genetic. The government
has merely set itself up for a confrontation.
When Pierre Trudeau gained power in
1968, he took a characteristically blunt approach to the issue. Rather than
continue with all of the same kind of corruptions in the spirit of the law and
sneaky social engineering experiments, he had Jean Chretien table a white paper
that outlined the government's centuries old end goal without any hubris. The
white paper suggested many things; a few of them were to repeal the Indian Act,
transfer land directly to council ownership, increase aid and establish
aboriginal citizens of Canada as equal under the law - for better or for worse.
It was the last of these suggestions that caused a large backlash in the
Aboriginal community. The plan was officially withdrawn, but as it was really
little more than a candid statement of deeply entrenched policy with a slightly
more liberal than normal spin, the government quickly went back to its sneaky
social engineering experiments once Trudeau was finally pushed out of office
fifteen years later by a concerned Ronald Reagan, due to differences in
philosophy regarding national defence strategies; Mulroney had already brought
in Bill C-31 before anybody could get through When Irish Eyes Are Smiling. Trudeau, however, left a very deep legacy on the question of
aboriginal self-government, by constructing the Canada Act, 1982, which both entrenched
aboriginal rights in the Charter of
Rights and Freedoms and entrenched treaty rights through s. 35(1). While s.
35(1) has yet to be tested fully in court, early rulings have suggested that it
may "not be worth the paper it's written on", as Trudeau once
famously claimed of the treaties themselves - the Supreme Court of Canada has
indicated through the Sparrow Test that it would only uphold treaty rights
against legislation if the legislation does not have a "valid legislative
objective"[20],
which would rarely protect treaty rights from legislation of a general nature,
which would apply to aboriginals under s. 88 of the Indian Act. Further
provincial restrictions on fishing and hunting, for example, would continue to
exhaust treaty rights, so long as they are worded in such a manner that the
court can interpret as having a "valid objective". Some have
interpreted R v. Sparrow as a step forward, but it still places treaty rights
at the mercy of the legislature and subject to the interpretation of a judge,
which fails to recognize the treaties as contracts between sovereign peoples.
After the failure of the Meech Lake Accord (due to
a dissenting aboriginal voice that claimed he'd been shut out from
negotiation), the talks were started again under a new name, the Charlottetown
Accord, and modified to ensure that aboriginal groups had a place at the table.
What resulted was rather disappointing: essentially an entrenchment of the
existing assimilation policies, under the exact system of hierarchy that
already existed. The municipal model of the Advancement Act[21]
would become a "third level of government", ordered below both the
federal and provincial level and subject to the same hierarchy, making it more
like an incorporation process than a statement of sovereignty. Aboriginal peoples could create their own
bylaws, but would still be subject to federal and provincial legislation under
s. 91(24) of the Constitution Act and s. 88 of the Indian Act. It used a lot of
very nice language but it did not provide for a path to meaningful autonomy and
suggested essentially no substantive change; in fact, it would have further
entrenched the idea of the government owing a fiduciary duty to its inferior
aboriginal citizens. In the end, most Aboriginal groups rejected the accord as
insufficient. The next important initiative was the Royal Commission on
Aboriginal People's Report, which, at 4000 pages, was likely read by few; a
substantial part of the report was composed of a history of the Canadian
government's relationship with aboriginal peoples, and while it was formally
apologetic in rescinding a number of anachronisms that no longer served the
interest of the state and even instructive on providing for financial
compensation, that section seemed more to act as an explanation of the
continuing assimilative policies that the report suggested. If anything, it was
the most comprehensive attempt at assimilation yet, going so far as to create
an aboriginal parliament based on the Westminster
system. First, it denied the right of secession, which, while on nobody's
minds, would necessarily be a right of sovereignty. Second, it proposed a
complicated system of restrictions on aboriginal by-laws. Two zones of
influence would be acknowledged: the core and the periphery. Aboriginals would
be allowed to legislate in matters related to their core areas of concern, but
not their peripheral ones, or at least not without an arrangement worked out
with both the federal and provincial governments. Specifically, the report
seems to be concerned about Aboriginal laws affecting non-aboriginal peoples.
In what way does asking permission to enact laws reflect a shift to
sovereignty? In what way could a
sovereign nation enact laws that would not affect surrounding communities?
Would hunting and fishing laws not affect the outside community if there are
migratory animals involved? Further, the report upheld the Sparrow Test,
explicitly stating that the provincial legislature would have precedence over
Aboriginal legislation so long as that provincial legislation forms a valid
legislative objective. So, it seems rather clear that the court would quickly
restrict aboriginal law-making abilities entirely to concerns that the state
has no interest in, while retaining ultimate authority on issues it has an
interest in. That's a so-called path to sovereignty that would likely end in
further accusations of false promises. There were also a number of suggestions
involving education and healthcare that aboriginals would be wise to be wary
about, given their racial character. Legislation of this nature should be
enacted locally, not by a federal government with a history of
institutionalized racism. The economic recommendations likewise continued on
with the centuries-old push towards agriculture, while adding a few new things
into the mix: the suggestion that minerals and other resources mined from
aboriginal lands should prioritize the use of aboriginal labour, the creation
of an aboriginal bank and programs set up to encourage entrepreneurialism.[22]
A New Model
There was, however, an agreement
reached at the turn of the century that could act as worthwhile model for
indigenous sovereignty moving forwards, namely the Nisga'a agreement. While the
agreement shares some fundamentals with both the Charlottetown Accord and the
Royal Commission, it takes a very large step forward in the recognition of
sovereignty in a way that is very sensitive to indigenous concerns.
The Nisga'a is a nation of four
tribes on the Nass River in British Columbia that never surrendered
their sovereignty in any remote way. The treaty is worthwhile on a number of
levels. First, it transfers ownership of the land to the Nisga'a people as a
whole, rather than to individuals. This is very much an acceptable development
because it (finally) accepts traditional concepts of land ownership. While the
Nisga'a can sell any of the land in fee simple to any individual, the land will
remain owned by the Nisga'a; while this may seem paradoxical,
recognize that the ultimate owner of all ceded territory in Canada is, in fact, parliament -
which gives it authority to levy taxes. The Nisga'a also have the right to
escheat, that is recover any land that is left to no heir. These are sovereign
land rights. Second, the agreement allows the Nisga'a hunting and fishing
rights in a large area around the land they now own, subject to quotas, as well
as to have a role to play in the management of these areas. This again mimics
traditional land use agreements, where separate nations and tribes would share
hunting and fishing grounds; should Europeans have arrived in North
America with a similar culture to the indigenous population, what
this represents is a reasonable assumption as to how the arrangement would have
evolved over time along with increases in technology and knowledge about
resource management. Third, it has allowed for the creation of a political
system that closely mirrors their existing society, institutions and tribal
composition, rather than force something anglo-centric
down from above. While the agreement does not provide for full sovereignty, it
does provide for almost total control (relative to reasonable restrictions,
such as resource management laws and the observance of the Charter) over
concerns relating to the Nation's way of life and its perception of its own
identity. [23]
In 2004, the Supreme Court of Canada
established a duty to consult aboriginals before enacting legislation that may
affect them.[24]
This ruling constructed a process to acknowledge the right to
self-determination, based on s. 35. However, the Conservative government that
took power in 2006 and won a majority in 2010, and which is ideologically
opposed to "judicial activism", has completely ignored this ruling,
setting up a potential battle between the two branches. In completing ignoring
the ruling, the government may be relying on the ability to stack the Court
with like-minded people in the near future. This could have deep consequences
for the establishment of multiple precedents regarding s. 35 rights, including
further development of the ruling in R v.
Sparrow.
The Return of Liberalism
While it may seem as though the
Nisga'a agreement and duty to consult provide a positive, working model forward,
in reality the failure of the Charlottetown Accord, as insufficient as it was,
may have actually signalled the closing of a window for aboriginals that have
already signed treaties that may remain closed for some time. The current
government has no interest in consulting with aboriginals before it legislates
on their behalf. Furthermore, we appear to be in the process of yet another
shift in policy: turning back to assimilation along with the shift back to
full-scale liberalism; this would actually be necessary in order for government
to conform to the prevailing economic dogma. Wealth redistribution back to
exploited peoples is not remotely consistent with neo-liberalism, nor could the
current reserve system withstand the full onslaught of austerity and individual
property rights. While most ordinary Canadians remain perplexed at the lack of
quality schooling and healthcare available to First Nations people, they fail
to realize that the current economic paradigm of the ruling class demands the
elimination of all public services altogether, in favour of markets. While it
is always healthy to stay positive, it is equally healthy to remain realistic;
if current trends in economic thought continue as they have been, the future
for indigenous people in Canada
is excessively bleak. It calls for the full-scale expropriation of what remains
of their land for the purposes of unending economic growth and the generation
of ever increasing revenue streams, with catastrophic environmental
consequences and the absolute minimum amount of compensation that shareholders
are forced to part with by court order. While neo-liberalism was slow to take
hold in Canada,
it now has a firm grip on the nation's governance. As of the time of this
writing, the government is in the process of a large overhaul of aboriginal
legislation designed to accelerate the further assimilation of First Nations
peoples. No attempt has been made to consult them. Leading Aboriginal Scholar
Pamela Palmater summarized the situation on her blog
as follows:
FNPOA, together with other bills in process: Bill C-428 impacting
by-laws, estates & education, Bill S-6 re elections, Bill S-2
re matrimonial real property, Bill C-27 re First Nation accountability,
Bill S-8 re First Nation water, and the First Nation Education Act to
come essentially change the entire legal and political landscape for First
Nations - unilaterally and against our collective will.[25]
Bills S-6, S-8 and
C-27 centralize control back in the minister's office, a clear step backwards for
self-governance, while perpetuating negative stereotypes about aboriginals for
consumption by the government's voting base; it is has been hypothesized that
the motive is to create a justification to cut spending,[26]
which is likely a vengeful reaction, that being characteristic of Stephen
Harper, to alarming coverage about the living conditions of aboriginals last
year, which has affected him negatively in opinion polls.[27]
Bill S-2, while seemingly produced for the benefit of aboriginal women, has been
interpreted by at least one independent female aboriginal commentator as a
sneaky way to reform property laws.[28]
Neither the First Nations Property Ownership Act (FNPOA) nor the First Nation
Education Act have been tabled as of the time of this
writing, but both are causing great alarm in the aboriginal community. The
focus of the other legislation seems to be on centralization; when this is
considered in the context of the residential school system, it is alarming that
not consulting would even be contemplated. As for the FNPOA, there are concerns
that it may look like the 1969 White Paper.[29]
The government is also modifying the process of making changes to land
designation in order to make it easier for corporations to gain access to
reserve lands.[30]
The opposition Liberals have joined
in, too, calling for a committee to discuss ways to abolish the Indian Act.[31]
Conclusions
As can be seen, then, neither the
British nor Canadian governments ever held a static "Indian Policy"
with a single, defined goal. Rather, policy has shifted wildly to whatever was
seen as most economically beneficial to the British and Canadian ruling class,
from assimilation as full citizens to extermination through sterilization.
Within this operating principle of unrestricted pragmatism, native rights were
never meaningful abstractions, but merely empty promises designed to minimize
dissent, which is bothersome for tax revenue and can be very expensive to put
down, as well as to trick the Indians into co-operating with plans for their
own demise. This remains true today. It is clear, then, that if the goal is to
ensure that aboriginal rights are legitimately protected, and that aboriginal
peoples are to have the freedom to live as they desire, we need to get
legislative power out of the hands of the federal government and into the hands
of the nations themselves and that this needs to be regulated by a document
that is enforced by the courts and that neither industrial nor class interests
have any ability to arbitrarily modify. If the goal is also full sovereignty,
then this constitution must be as minimal as possible, in favour of more
detailed frameworks at local levels.
Suggestions
There is a tendency in the
literature to approach the problem of aboriginal self-governance as a process
of constructing a list of rights that aboriginals shall have. For example,
Slattery[32]
compiles an inexhaustive list of six "generic rights" that
simultaneously includes the right to honourable treatment by the Crown and the
right to self-government itself. Now, who grants these rights? What of rights
that are not listed? Will the Crown continue to act oppressively in areas where
rights aren't explicitly listed? In truth, this is but another paternal
approach, intentional or not, and should be immediately abandoned. Sovereignty
is not, and cannot be obtained through, a process of being granted rights by
one's sovereign; she who is granted rights by a sovereign is necessarily not
sovereign. As painful as it may be to admit this is an unworkable dead end, all
work on this topic should be buried or burned and forgotten - this can be
nothing more than a plan for further disaster.
However, any kind of aboriginal
self-governance is going to culminate in the construction of something
approaching a state, no matter how decentralized and participatory that state
is. This necessarily requires the construction of a constitution and a bill of
rights. Is the Canadian Charter of Rights and Freedoms sufficient? Many
academic texts, especially those written by non-aboriginal people, seem to
consider the question a non-issue; obviously, any aboriginal government would
be bound by the charter. That it would not be is simply inconceivable. However,
this is not widely assumed on the ground, outside of ivory towers, where there
is actually a wide divergence of opinion.[33]
The Charter remains the white man's law, after all, and may plausibly do a poor
job in upholding the rights of Aboriginal as
the Aboriginals themselves see those rights. Our courts have a mixed record
on upholding aboriginal rights, anyways; there is valid reason for distrust in
such a document, even if its contents could be normalized. That brings up
another difficult question: what aspects of Aboriginal society itself require
checks and balances to prevent Aboriginals from oppressing Aboriginals, or
Aboriginals from oppressing non-Aboriginals? Who figures this out? Will
Aboriginals consent, or feel these are simply further paternalistic
restrictions?
There are at least some Aboriginal
voices that are adamant about Charter protection.[34]
There are others that reject it as insensitive to aboriginal concerns and still
others that reject it on principle alone.[35]
For the purposes of my proposals, however, the question is actually rather
irrelevant. I would propose that an aboriginal constitution exist side-by-side
with ours, which would be outside of the Charter's jurisdiction. A better question to ask is "what should
an aboriginal charter look like?", and to answer that I think we need to
consult with aboriginal groups, but for the purposes of this report we can use
the shortcut of looking at existing aboriginal rights legislation, as produced
by aboriginals. In truth, there are minor differences between the Inuit act and
the Charter;[36]
one is clearly based on the other. Issues of bitterness and
sovereignty aside, the Canadian Charter of Rights and Freedoms remains
one of the most detailed and comprehensive charters in the world. The
indigenous populations of Canada
could do much worse - for example, a bill of rights ratified way back in 1791.
However, as each nation is independent of the others, they would each have
their own bill of rights. I would expect that most nations would choose to
start with the Charter as a base, and then add or delete as desired to reflect
their culture. This may include things like modifying the language rights and
adding rights to belong to the community, rights to food, rights to shelter and
other amendments that are more in line with traditional ways of life and would
make leftists rather giddy.
I would suggest that a body similar
to the Assembly of First Nations, if not the assembly itself, form at a higher
level of government, for the purposes of administration. As they'll be writing
their own constitution, they can figure the rest out themselves. They may or
may not want to implement a universal charter, some kind of equalization
program, taxation, rules of entrance, co-ordinated resource protection
strategies, universities, health care, a parliament or even simple statements
of values. They may, on the other hand, just want a minarchist
framework. Yet, I strongly recommend that a framework exists, as it is likely
the only plausible way to build a workable infrastructure in a globalized
economy.
That leaves us with two separate confederations
- the Assembly of First Nations and the Confederation of Canada. The next step
would be in forming a larger agreement that binds together these two
confederations, a recognition of the two row wampum
treaty converted into modern legalese. This agreement would lay out rules that
each of the two confederations must follow in order for them to live in harmony
on the same land. It should not yield any political or legislative authority,
but it should be binding on its two (or three, if quebec
would prefer this approach) members. It should also be open to further
membership should other groups, like the Inuit or Metis,
decide they would prefer this approach.
In the mean time the Metis would exist in a gray area. If the First Nations wish
to reject them from their confederation, I feel they have every right to do so.
Yet, they ought to remain Canadian citizens, and protected under s. 25 and s.
35 of the charter. I would consequently not recommend removing these sections
of the charter, as they would still apply to Metis,
as well as to non-status Indians and status Indians operating in Canadian
jurisdiction. However, if First Nations
continue to reject the Metis, and they feel Canadian
Citizenship is not enough, then serious discussion should be had about bringing
them in on the level of a confederation, organized along similar principles.
Anybody could choose to hold multiple citizenships (I have European, Ottawa and Cree ancestry,
myself) if they choose to and they meet the requirements constructed by the
individual nations. A generalized "First Nations citizenship" may
also be useful in determining access to services.
I would further propose that it is
not necessary for any single aboriginal nation or tribe to join confederation
at all, if they choose not to. In fact, I think there should be clear standards
put in place that act as a restriction upon membership. One rule I would
propose as fundamental is that a nation wishing to join confederation needs to
have already constructed a bill of rights, and that there needs to be a few
things within it - equality rights, most importantly, but the elimination of
blood quantum rules nearly so. Nor would joining confederation merely be a
formality; access to certain programs would be conditional upon admittance, as
those programs would exist in the framework of the Assembly. That would not
rule out the possibility of coming to agreements about programs through
bilateral agreements. Confederation should retain the right to suspend
membership and place trade sanctions on any nation that does not uphold the
common principles that had been agreed upon. These restrictions and sanctions
would not be meant to act as a barrier to entrance, so much as they would be
meant to ensure that certain rights that confederation considers to be
paramount are respected by all of its members.
If these suggestions are adopted
then the formal hierarchical control of Canada over its aboriginal peoples
would be immediately abolished, and any rights it has to assert itself would be
immediately exhausted. Hundreds of pieces of legislation would immediately
become obsolete and should, for the sake of friendship, be immediately
repealed. Also repealed should be section 91(24) of the constitution act, as
well as the Indian Act itself. However, the Indian Act should only be repealed
on a nation-by-nation basis and on the condition that a replacement agreement
is worked out between the nation and the federal and relevant provincial
governments. While these agreements would be bilateral, they should be placed
within the framework of the agreement between confederations. Each nation would
determine its own preferred modifications, including its preferred definition
of itself; constructing a general definition of an "Indian" would no
longer be meaningful, not even at the level of the Assembly. However, should it
be felt that this is a desirable declaration, I would encourage the Assembly to
apply the most generous definition possible to encourage greater integration
not just with Canada but with the world and conform to international standards
of citizenship. This is an issue of culture, not of race. In general, both
marriage and childbirth imply citizenship, regardless of the other details.
Maximizing variation is healthy for all populations.
Transfer of property from the crown
to First Nations should occur bilaterally, but should in general follow the
provisions of the Nisga'a agreement, which place the ownership of the land in
the hands of every member of the community, do not allow radical title to leave
the ownership of the community and allow for shared, external hunting grounds
wherever this remains possible.[37]
Once the transfer is complete, each nation will retain absolute sovereignty
over what it wishes to do with its land. It may or may not sell plots in fee
simple and may or may not decide to allow "sale" to outsiders, but
this sale of land would conform to the rules of the Nisga'a agreement, meaning
the land would ultimately stay within the control of the community. Should any
nation refuse to take ownership of their own land, and have no alternate
solution that is not the status quo, the Crown would reserve the right to
unilaterally exit any existing treaty and sell the reserve land at its own
pleasure, so long as it gives other First Nations a first opportunity to
purchase and puts in place the proper provisions to relocate the citizens to
social housing in a metropolitan area. This, again, is not a threat that the
Crown should have any intention of following through with, but a statement that
it is no longer interested in administering aboriginal lands for them and in
fact a choice between taking on the responsibilities of sovereignty and
forfeiting a separate identity; if a nation, once given the opportunity to do
so, will not take control of its own affairs in order to define itself, its
claim to being sovereign becomes dubious at best and the Crown is left with no
option but to take drastic options to end the current hopeless and
unsustainable arrangement.
The laws of Canada and the provinces of Canada would in general not apply
in First Nations jurisdictions, nor would the reverse situation be true. While
some may correctly argue that this would be an administrative nightmare, it is
a necessary consequence of sovereignty. That being said, harmonization should
be encouraged and discussed for the purposes of brevity. Wherever crime is
committed, jurisdiction would fall to the area that the crime is committed; an
aboriginal offender in Canadian territory would be subject to Canadian laws,
whereas a Canadian offender in aboriginal territory would be subject to
aboriginal laws. Bilateral transfer agreements may be arranged, if there is a
desire to do so. While formal customs procedures should be minimized, Canada would
retain the right to ban repeat offenders from its soil. Transfer agreements are
inevitable. There are interesting economic opportunities involved with this, as
well. For example, an aboriginal community would have every right to choose not
to legislate on the topic of marijuana. However, an increase in formal
government-to-government relations should probably minimize the problem of
contraband.
There simply isn't anywhere to place
an authoritative minister of aboriginal affairs in this framework. However,
both the federal and provincial governments should maintain departments that
are in charge of aboriginal affairs, for the purposes of maintaining good
relations through bilateral agreements.
Taxation should be a part of the
bilateral treaty negotiations, as a contribution for services. Certainly, there
would be no reason to pay taxes unless there were services rendered. Taxation
arrangements between First Nations and the Assembly should be determined
internally. As for the issue of voting rights, western concepts of government
connect taxation very heavily with representation; traditional societies may
not have had taxation (or currency), but they did generally uphold the idea of
communal responsibility and reciprocal sharing. The logical conclusion of
reciprocal sharing in a monetized economy is progressive taxation. Yet, it may
not make sense in an aboriginal context to connect that to representation.
Voting rights would rather need to be connected to situations where there is a
direct concern involved, and that may not be easy to legislate or understand.
Within this framework, in order for the decisions made by the Canadian
parliament to directly affect an aboriginal person, that aboriginal person
would have to have Canadian citizenship - perhaps they own property or work off
of the reserve. Yet, if an outside government is to exploit a resource in the
vicinity of a reserve, then, in the spirit of respect and friendship, there
should be some discussion about the matter, eventually culminating in a
bilateral agreement. This may involve a referendum, but it would be inside of
the reserve. Voting rights for the Canadian parliament should consequently not
be assumed for aboriginals, but granted on a citizenship basis. In practice,
that would lead to most aboriginals having voting rights. Conversely,
non-Aboriginals living on reserves should have some say in decisions that
affect them, but this may take the form of consultation and petitioning rather
than the form of a vote. As nations are sovereign, this is an internal decision.
However, I would strongly suggest citizenship based voting rights as well, in
co-ordination with generous concepts about citizenship. Note that the effects
of all of this land transfer would necessitate a complete redrawing of the
riding system, as large portions of the country would leave both Federal and
Provincial jurisdiction.
These recommendations have been
based on a cursory but careful study of the literature, including the
recommendations made in the Royal Commission on Aboriginal Peoples, the content
of the novel Nisga'a agreement, perspectives on First Nations cultural concerns
and a historical analysis of the relationship between Canada and First Nations
peoples that is ultimately rooted in critical race theory. It seeks to balance
the concerns of Aboriginal and non-Aboriginal people by creating
self-governance and minimizing fiduciary dependence. Due to the nature and
purpose of this report, the recommendations are vague; however, I hope the
general framework of two separate confederations is well received. I have
concluded that such a framework is necessary to ensure that Aboriginal rights
are upheld; the historical record of legislation and jurisprudence, combined
with the direction taken by the current elected government and the Supreme Court's
developing precedent regarding s. 35, clearly demonstrate that Aboriginal
people cannot rely on the Canadian government or the Canadian people for fair
or equitable treatment. The only way forward is to eliminate legislative
authority. If nothing else is taken from this, please do not overlook this
deduction.
Figures
Figure 1: Map of
Indo-European Haplotype markers for Indigenous
populations, demonstrating that most Indigenous populations in Canada are, in
fact, overwhelmingly Metis. European genes amongst
far northern aboriginals can be explained via the Hudson's Bay Company. The Indo-European
marker in Asian Indian populations is not due to European contact, but due to
an ancient invasion described in the Vedas.
Y-DNA measures patrilineal descent only; this
suggests that high numbers of indigenous peoples in Eastern
Canada can trace their direct male lineage back to European
settlers. It also graphically demonstrates the differing policies of
English/French and Spanish/Portugese Colonialism. (Source:
http://en.wikipedia.org/wiki/File:Haplogroup_R_(Y-DNA).PNG, Creative Commons)
Figure 2: Map of
North Asian Haplotype markers for Indigenous
populations, demonstrating a late migration over the Bering
Strait and genetic similarity with Siberian populations. Note that
this corresponds almost exactly to the distribution of the Na-Dene language
group, which is now accepted as a branch of the Siberian Yeniseian language group. This
is overwhelming evidence for common descent. (Source:
http://en.wikipedia.org/wiki/Haplogroup_C3_(Y-DNA), Creative Commons)
Figure 3: Map of Haplotype markers for populations indigenous to the Americas, demonstrating an early migration over
the Bering Strait and genetic similarity with
Altaic populations. Note the decreased, minority prevalence of the indigenous haplotype in the areas of early contact. (Source:
http://en.wikipedia.org/wiki/Haplogroup_Q_(Y-DNA), Creative Commons)
Figure 4: Map of
group O bloodtypes amongst indigenous populations,
indicating influence from European and perhaps African populations in the areas
of first contact. This map also graphically depicts population movements due to
the Indian Removal Act, and the event known as the "trail of tears". (Source:
http://upload.wikimedia.org/wikipedia/commons/c/c5/Mapa_del_grupo_O.GIF,
Creative Commons)
Figure 5: Proposed
governing relationships.
Tables
Table I: Y chromosome frequency in
select aboriginal populations.
Group
|
Language
|
Place
|
n
|
C3
|
Q
|
R1
|
Others
|
Reference
|
48
|
6
|
31
|
62.5
|
0
|
Bortoloni 2003[4]
|
|||
Eastern North America
|
97
|
4.1
|
15.5
|
50.5
|
29.9
|
Bolnick 2006[1]
|
||
Central North America
|
44
|
11
|
25
|
50
|
14
|
Zegura 2004[2]
|
||
25
|
8
|
36
|
44
|
12
|
Zegura 2004[2]
|
|||
15
|
33
|
27
|
40
|
0
|
Malhi 2008[3]
|
|||
Northeast North America
|
155
|
7.7
|
33.5
|
38.1
|
20.6
|
Bolnick 2006[1]
|
||
62
|
1.6
|
50.0
|
37.1
|
11.3
|
Bolnick 2006[1]
|
|||
--
|
398
|
9.0
|
58.1
|
22.2
|
10.7
|
Hammer
2005[5]
|
||
19
|
0
|
69
|
21
|
10
|
Bortoloni 2003[4]
|
|||
Western North America
|
243
|
11.5
|
70.4
|
18.1
|
--
|
Malhi 2008[3]
|
||
44
|
16
|
61
|
16
|
7
|
Zegura 2004[2]
|
|||
71
|
0
|
87.3
|
12.7
|
0
|
Zegura 2004[2]
|
|||
--
|
530
|
6.0
|
77.2
|
12.5
|
4.3
|
Zegura 2004[2]
|
||
60
|
0
|
80.0
|
11.7
|
8.3
|
Zegura 2004[2]
|
|||
36
|
2.8
|
75.0
|
11.1
|
11.1
|
Bolnick 2006[1]
|
(Source:
http://en.wikipedia.org/wiki/Y-DNA_haplogroups_in_Indigenous_peoples_of_the_Americas,
Creative Commons)
(Note:
I have come across references to other groups as well that are as high or higher:
Seminoles at 50% R1 and Ojibwe at a startling 79%.
However, I haven't prioritized the time to verifying sources.)
JURISPRUDENCE
Haida Nation v. British
Columbia (Minister of Forests), [2004] 3 S.C.R. 511,
2004 SCC 73
R. v. Sparrow,
[1990] 1 S.C.R. 1075
SECONDARY
MATERIAL
Badcock, William T. Who
Owns Canada:
Aboriginal Title and Canadian Courts, (Ottawa: Canadian Association in Support of the Native Peoples, 1976)
Barsh, Russell Lawrence. "Indigenous Rights and the Lex Loci in British Imperial Law" in Kerry Wilkins, ed, Advancing Aboriginal Land Claims:
Visions/Strategies/Directions (Saskatoon:
Purich, 2004)
Blair, Peggy J. Lament For a First Nation, (Vancouver: UBC Press,
2008)
Daugherty,
Wayne &
Madill, Dennis. Indian Government under
Indian Act egislation. (Ottawa: Indian and
Northern Affairs, 1980)
King George III, Royal Proclamation, online: Royal Proclamation, 1763
<
http://www.specific-claims-law.com/specific-claims-background/12-royal-proclamation-1763>
Madison, James. "The Federalist no.
10" in James Madison, John Jay, Alexander Hamilton, eds, The
Federalist Papers, online: The Federalist no. 10
<http://www.constitution.org/fed/federa10.htm>
Magnet,
Joseph Eliot. "Who are
the Aboriginal People of Canada?" in Joseph Eliot Magnet & Dwight A. Dorey, eds, Aboriginal Rights Litigation (Markham:
LexisNexis, 2003)
McConnell, Michael N. A Country Between: The Upper
Ohio Valley
and Its Peoples, 1724-1774, (Lincoln: University of
Nebraska, 1992)
Nahanee, Teressa. "Speaking Notes to the Canadian Bar
Association" in Canadian Bar Association, ed, Constitutional
Entrenchment of Aboriginal Self Government (?: Canadian Bar Association, 1992)
Palmater, Pamela. Flanagan National
Petroleum Ownership Act: Stop
Big Oil
Land Grab (August 7
2012), online: Indigenous Nationhood
<http://www.indigenousnationhood.blogspot.ca/2012/08/flanagan-national-petroleum-ownership.html>
Palmater, Pamela. "Bill S-2 - Family Home on Reserves: Protection or
threat?", Rabble
(October 3, 2011) online: Rabble.ca <
http://rabble.ca/blogs/bloggers/pamela-palmater/2011/10/bill-s-2-family-homes-reserves-protection-or-threat>
Pope Nicholas V. Romanus Pontifex, online: The Bull Romanus Pontifex
(Nicholas V), January 8, 1455. < http://www.nativeweb.org/pages/legal/indig-romanus-pontifex.html>
Rafoss, Bill. "First Nations and The Charter of
Rights" in John D. Whyte, ed, Moving
Toward Justice: Legal Traditions and Aboriginal Justice (Saskatoon: Purich,
2008), p. 198-205
Scott, Tracie Lea. Postcolonial Sovereignty? The Nisga'a Final Agreement (Saskatoon: Purich, 2012)
Singh, Ripan (2008). "Distribution of Y Chromosomes Among Native North Americans: A Study of Athapaskan
Population History". American Journal of Physical
Anthropology.
< http://usmex.ucsd.edu/assets/022/10143.pdf>
Slattery, Brian.
"The Generative Structure of Aboriginal Rights" in John D. Whyte, ed,
Moving Toward Justice: Legal Traditions
and Aboriginal Justice (Saskatoon:
Purich, 2008), p. 24
The Institute on Governance .
Summary of the Final Report of The Royal Commission on
Aboriginal Peoples, (Ottawa: The Institute on Governance, 1997)
Two Row Wampum Treaty, 1613, online: Wampum
<http://www.ganondagan.org/wampum.html>
Vongdouangchanh, Bea. "Feds say Bill C-27 will bring accountability to First
Nations, but critics call it paternalistic, redundant", The Hill Times
(October 15, 2012)
online: The Hill Times
<http://www.hilltimes.com/news/legislation/2012/10/15/feds-say-bill-c-27-will-bring-accountability-to-first-nations-but-critics/32437>
Vowel, Chelsea.
"First Nations Property Ownership Act Just White Paper Lite"
Rabble (August 23, 2012) online:
Rabble.ca <
http://rabble.ca/blogs/bloggers/apihtawikosisan/2012/08/first-nations-property-ownership-act-just-white-paper-lite
>
"Frequently Asked Questions -
Amendments to the Land Designation Sections of the Indian Act", Aboriginal Affairs and Northern Development
(August 19, 2012) online: Aboriginal Affairs and Northern Development
<http://www.aadnc-aandc.gc.ca/eng/1350676320034/1350676521625>
"Liberal Leader Bob Rae Launches
Debate on His Private Members Motion to Replace the Indian Act", Liberal
Party of Canada (October 22, 2012) online: Liberal.ca
<http://www.liberal.ca/newsroom/news-release/liberal-leader-bob-rae-launches-debate-on-his-private-members-motion-to-replace-the-indian-act/>
"Rae calls Attawapiskat 'our Third World'", Canadian
Press (Dec 17, 2011) online: CBC News Online
<http://www.cbc.ca/news/canada/story/2011/12/17/attawapiskat-bob-rae-visit.html>
FIGURES
& TABLES
"Genetic History of Indigenous Peoples
of The Americas", Wikipedia online: Wikipedia.org, <http://en.wikipedia.org/wiki/Genetic_history_of_indigenous_peoples_of_the_Americas>
TEXTS
NOT CITED
Bear, Leroy Little. "Aboriginal Paradigms: Implications for Relationships to Land and
Treaty Making" in Kerry Wilkins, ed, Advancing Aboriginal Land Claims: Visions/Strategies/Directions (Saskatoon: Purich, 2004)
Bartlett, Richard H. Indians & Taxation in Canada (Saskatoon: University
of Saskatchewan, 1992)
Borrows, John. Drawing Out Law: A Spirit's Guide (Toronto: University
of Toronto Press, 2010)
Indian Act, RSC. 1985, c. I-5
Indian and Northern
Affairs. First
Nations Governance Handbook (Ottawa:
Indian and Northern Affairs, 2003)
Kennedy, Dawnis. "Reconciliation without Respect? Section 35 and
Indigenous Legal Orders" in Law Commission of Canada, ed,
Indigenous Legal Traditions (Vancouver: UBC Press,
2007)
Leslie, John &
Maguire, Ron. The Historical Development of The Indian
Act. (Ottawa: Indian and Northern Affairs,1978)
Ross, Rupert. Dancing With a Ghost: Exploring Indian Reality (Markham:
Reed Books Canada,
2010)
Wesley-Esquimaux,
Cynthia C.. "Negotiating Future Arrangements:
Identifying Issues for Negotiation"
in Canadian Bar Association, ed, Constitutional
Entrenchment of Aboriginal Self Government (?: Canadian Bar Association, 1992)
[2] Pope Nicholas V, Romanus Pontifex, online: The Bull Romanus Pontifex
(Nicholas V), January 8, 1455.
<
http://www.nativeweb.org/pages/legal/indig-romanus-pontifex.html>
[3] William T. Badcock, Who Owns Canada: Aboriginal Title and
Canadian Courts, (Ottawa:
Canadian Association in Support of the Native Peoples, 1976) p. 9-14
[6] King George III, Royal
Proclamation, online: Royal Proclamation, 1763
<
http://www.specific-claims-law.com/specific-claims-background/12-royal-proclamation-1763>
[7] William T. Badcock, Who Owns Canada: Aboriginal Title and
Canadian Courts, (Ottawa:
Canadian Association in Support of the Native Peoples, 1976) p. 9
[8] Michael N. McConnell, A
Country Between: The Upper
Ohio Valley
and Its Peoples, 1724-1774, (Lincoln: University of
Nebraska, 1992), p 162-172
[9] William T. Badcock, Who Owns Canada: Aboriginal Title and
Canadian Courts, (Ottawa:
Canadian Association in Support of the Native Peoples, 1976) p. 5
[10] Joseph Eliot Magnet,
"Who are the Aboriginal People of Canada?" in Joseph Eliot Magnet
& Dwight A. Dorey, eds,
Aboriginal Rights Litigation (Markham: LexisNexis,
2003), p. 38
[11] William T. Badcock, Who Owns Canada: Aboriginal Title and
Canadian Courts, (Ottawa:
Canadian Association in Support of the Native Peoples, 1976) p. 9
[12] Michael N. McConnell, A
Country Between: The Upper
Ohio Valley
and Its Peoples, 1724-1774, (Lincoln: University of
Nebraska, 1992), p 172-195
[13] Russell Lawrence Barsh,
"Indigenous Rights and the Lex Loci in
British Imperial Law" in Kerry Wilkins, ed, Advancing Aboriginal Land Claims: Visions/Strategies/Directions (Saskatoon: Purich, 2004), p. 94-112
[14] James Madison, "The Federalist no. 10" in James Madison,
John Jay, Alexander Hamilton, eds, The Federalist Papers, online: The
Federalist no. 10 <http://www.constitution.org/fed/federa10.htm>
[15] Russell Lawrence Barsh,
"Indigenous Rights and the Lex Loci in
British Imperial Law" in Kerry Wilkins, ed, Advancing Aboriginal Land
Claims: Visions/Strategies/Directions (Saskatoon: Purich,
2004), p. 94-112
[16] Joseph Eliot Magnet,
"Who are the Aboriginal People of Canada?" in Joseph Eliot Magnet
& Dwight A. Dorey, eds,
Aboriginal Rights Litigation (Markham: LexisNexis,
2003), p. 37-40
[17] Peggy J. Blair, Lament For a
First Nation, (Vancouver:
UBC Press, 2008), p. 37-61
[18] ibid., p. 83
[19] Singh, Ripan
(2008). "Distribution of Y Chromosomes Among
Native North Americans: A Study of Athapaskan
Population History". American Journal of Physical
Anthropology. < http://usmex.ucsd.edu/assets/022/10143.pdf>,
p 419-420
[21] Wayne Daugherty & Dennis Madill. Indian Government under Indian Act egislation. (Ottawa: Indian and Northern
Affairs, 1980), p. 29
[22] The Institute on Governance. Summary of the Final Report of The
Royal Commission on Aboriginal Peoples, (Ottawa: The Institute on
Governance, 1997)
[23] Tracie Lea Scott, Postcolonial
Sovereignty? The Nisga'a Final Agreement (Saskatoon: Purich,
2012), p. 56-115
[24] Haida Nation v. British Columbia (Minister of Forests),
[2004] 3 S.C.R. 511, 2004 SCC 73
[25] Pamela Palmater, Flanagan National Petroleum Ownership Act: Stop Big Oil Land Grab
(August 7 2012), online: Indigenous Nationhood
<http://www.indigenousnationhood.blogspot.ca/2012/08/flanagan-national-petroleum-ownership.html>
[26] Bea Vongdouangchanh, "Feds say Bill
C-27 will bring accountability to First Nations, but critics call it
paternalistic, redundant", The Hill
Times (October 15, 2012) online: The Hill Times
<http://www.hilltimes.com/news/legislation/2012/10/15/feds-say-bill-c-27-will-bring-accountability-to-first-nations-but-critics/32437>
[27] "Rae calls Attawapiskat 'our Third World'",
Canadian Press (Dec 17, 2011) online:
CBC News Online
<http://www.cbc.ca/news/canada/story/2011/12/17/attawapiskat-bob-rae-visit.html>
[28] Pamela Palmater, "Bill S-2 - Family Home
on Reserves: Protection or threat?", Rabble
(October 3, 2011) online: Rabble.ca <
http://rabble.ca/blogs/bloggers/pamela-palmater/2011/10/bill-s-2-family-homes-reserves-protection-or-threat>
[29] Chelsea Vowel, "First Nations Property Ownership Act Just White
Paper Lite" Rabble
(August 23, 2012) online: Rabble.ca <
http://rabble.ca/blogs/bloggers/apihtawikosisan/2012/08/first-nations-property-ownership-act-just-white-paper-lite
>
[30] "Frequently Asked Questions - Amendments to the Land DEsignation SEctions of the Indian Act", Aboriginal Affairs and
Northern Development (August 19, 2012) online: Aboriginal Affairs and Northern
Development
<http://www.aadnc-aandc.gc.ca/eng/1350676320034/1350676521625>
[31]
"Liberal Leader Bob Rae Launches Debate on His Private Members
Motion to Replace the Indian Act", Liberal Party of Canada (October 22,
2012) online: Liberal.ca
<http://www.liberal.ca/newsroom/news-release/liberal-leader-bob-rae-launches-debate-on-his-private-members-motion-to-replace-the-indian-act/>
[32] Brian Slattery,
"The Generative Structure of Aboriginal Rights" in John D. Whyte, ed,
Moving Toward Justice: Legal Traditions
and Aboriginal Justice (Saskatoon:
Purich, 2008), p. 24
[33] Bill Rafoss, "First Nations and The Charter of Rights"
in John D. Whyte, ed, Moving Toward
Justice: Legal Traditions and Aboriginal Justice (Saskatoon: Purich,
2008), p. 198-205
[34] Teressa Nahanee,
"Speaking Notes to the
Canadian Bar Association" in Canadian Bar
Association, ed, Constitutional Entrenchment of Aboriginal Self
Government (?: Canadian Bar
Association, 1992)
[35] Bill Rafoss, "First Nations and The Charter of Rights"
in John D. Whyte, ed, Moving Toward
Justice: Legal Traditions and Aboriginal Justice (Saskatoon: Purich,
2008), p. 199-200
[36] Bill Rafoss, "First Nations and The Charter of Rights"
in John D. Whyte, ed, Moving Toward
Justice: Legal Traditions and Aboriginal Justice (Saskatoon: Purich,
2008), p. 203
[37] Tracie Lea Scott, Postcolonial
Sovereignty? The Nisga'a Final Agreement (Saskatoon: Purich,
2012), p. 56-115
http://dghjdfsghkrdghdgja.appspot.com/thoughts/essays/aboriginalself.html
http://dghjdfsghkrdghdgja.appspot.com/thoughts/essays/aboriginalself.html