McGill Law Journal ~ Revue de droit de McGill
TWO ROADS DIVERGED:
A COMPARATIVE ANALYSIS OF INDIGENOUS RIGHTS
IN A NORTH AMERICAN CONSTITUTIONAL CONTEXT
Peter Scott Vicaire*
Fuelled by contrasting political backdrops,
indigenous tribes on opposite sides of what has be-
come the Canadian-American border have trav-
elled upon very different trajectories, receiving dis-
similar treatment from the respective governments
that have laid claim to their lands.
Indian tribes in the United States have some-
times had progressive legislators and high-ranking
government officials enact bold laws and policies
that were instrumental in creating positive change.
Inversely, Aboriginal peoples in Canada have gen-
erally had to muddle through decade after decade
of middling, indifferent, or occasionally even mali-
cious bureaucrats who have continued to be too
sheepish or backward-thinking to make any signif-
icant improvements. Further, the Canadian Par-
liament has yet to offer any substantive legislation
in the vein and magnitude of that which was vital
in making positive changes for American Indian
tribes, even though numerous independent sources
have pointed to such an approach. Rather, decades
of piecemeal legislation have served only as a half-
hearted attempt to counter the more odious effects
of the archaic Indian Act, while those laudable
governmental voices that have called for bold, sub-
stantial change have been largely ignored.
Alimentes par des contextes politiques di-
vergents, les tribus autochtones de part et dautre
de la frontire canado-amricaine ont parcouru des
trajectoires assez diffrentes, faisant lobjet de trai-
tements dissimilaires de la part de leur gouverne-
ment respectif ayant revendiqu leurs terres.
Les tribus amrindiennes aux tats-Unis ont
pu quelquefois profiter de la collaboration de lgi-
slateurs et de responsables gouvernementaux pro-
gressistes qui ont promulgu des lois et des poli-
tiques courageuses ayant contribu lavnement
de changements positifs. linverse, les peuples
autochtones du Canada ont gnralement eu se
dbrouiller seuls, dcennie aprs dcennie, devant
des bureaucrates mdiocres, indiffrents, ou par-
fois mme malveillants et trop penauds ou rgres-
sifs pour apporter des amliorations significatives.
En outre, le Parlement canadien na toujours pas
propos de lgislation substantielle dans la mme
veine et ampleur des textes amricains, et ce mme
la lumire de nombreuses sources indpendantes
favorisant une telle approche. Plutt, des dcennies
de mesures lgislatives fragmentaires nont servi
que de timide tentative pour contrer les effets les
plus odieux de larchaque Loi sur les Indiens, alors
que les voix gouvernementales louables, ayant fait
appel dimportantes et daudacieuses amliora-
tions, ont t largement ignores.
* Peter Scott Vicaire is a member of the Listuguj Migmaq First Nation in Quebec. He is a
former US Marine Corps Infantryman and holds both American (Michigan State Uni-
versity) and Canadian (University of Ottawa) law degrees. He now works for the US
Department of Veterans Affairs in the Office of Tribal Government Relations. Id like to
thank Kate Fort and Matthew Fletcher from Michigan State Universitys Indigenous
Law & Policy Center for allowing me time to write this article during my fellowship. Id
also like to thank my wife, Annie, for continuing to smile and make me smile. Lastly,
thanks to my father, Alex Vicaire, who has long been an inspiring force.
Citation: (2013) 58:3 McGill LJ 607 ~ Rfrence : (2013) 58 : 3 RD McGill 607
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Introduction
I.
II.
III.
Historical Starting Lines: Dissimilar Beginnings
A. United States
B. Canada
1. Preconstitutional Canada
2. Subjects and Non-citizens Versus Nonsubjects
3. Postconstitutional Canada
4. Provinces Versus Bands
1. Preconstitutional United States
2. Postconstitutional United States
3. States Versus Tribes
and Non-citizens
Darkest Before the Dawn for Tribes in the United States
A. The Indian Reorganization Act
B. John Collier
C. Felix Cohen
D. Duncan Campbell Scott
Termination and the Indian White Paper
A. Termination
B. Self-Determination
C. The Indian White Paper
IV.
Modern Challenges
A. Canada and the Charter
B. The United States and Its Constitution
Conclusion
INDIGENOUS RIGHTS IN A NORTH AMERICAN CONSTITUTIONAL CONTEXT 609
Introduction
On September 8, 1760, British military forces under the command of
General Amherst surrounded Montreal in a three-pronged attack, forcing
France to capitulate and effectively putting an end to the French and In-
dian War,1 a conflict that had been raging across much of North America
since 1754. Upon the signing of the Treaty of Paris in 1763, France lost all
of its North American mainland possessions,2 leaving Great Britain as the
dominant European power on the continent. In order to assuage the con-
cerns of Indian3 tribes over this transfer of power, King George III issued
the Royal Proclamation of 1763, which obstructed English settlement
upon any Lands whatever, which, not having been ceded to or purchased
by Us … are reserved to the said Indians.4 King George IIIs government
was very interested in retaining the friendship of the indigenous peoples,
as wars with the numerous tribes threatened the British military, and
settler societies lived in fear.5 Though it appeased some tribes, the proc-
lamation also prohibited westward colonial expansion and was the first of
many British actions that ultimately led to the American Revolution.6
Regardless of the protective terms of the proclamation concerning In-
dian lands, a looming threat of Indian war came to fruition when Pontiac,
an Ottawa chief, encouraged the taking up of arms against the British in
1763.7 In direct response, the superintendent of Indian affairs, Sir Wil-
1 The French and Indian War is the name given to the North American theatre of the
Seven Years War, an immense world conflict involving Austria, England, France, Prus-
sia, and Sweden, and which played out in Europe, India, and North America.
2 The only territorial remnants that France held on to were Saint-Pierre and Miquelon, a
group of small islands in the North Atlantic Ocean, just south of Newfoundland. They
remain under French control to this day.
3 In this article, indigenous peoples living in the United States will be referred to as In-
dians, while those living in Canada will generally be referred to as Aboriginal peoples
unless referring to the singular Aboriginal. It should also be noted that Aboriginal
peoples in Canada belong to three distinct groups recognized in sections 25 and 35 of
the Canadian Constitution Act, 1982 (being Schedule B to the Canada Act 1982 (UK),
1982, c 11), as Indians, Mtis, and Inuit. First Nations refers to Indian Act (RSC 1985,
c I-5) band collectives that are neither Mtis nor Inuit.
4 George R, Proclamation, 7 October 1763 (3 Geo III), reprinted in RSC 1985, App II, No 1
[Royal Proclamation of 1763].
5 Joseph Eliot Magnet, Who Are the Aboriginal People of Canada? in Dwight A Dorey &
Joseph Eliot Magnet, eds, Aboriginal Rights Litigation (Markham: LexisNexis Butter-
worths, 2003) 23 at 37.
6 See Lindsay G Robertson, Conquest by Law: How the Discovery of America Dispossessed
Indigenous Peoples of Their Lands (New York: Oxford University Press, 2005) at 6.
7 Warriors from the Delaware, Seneca, Chippewa, Miami, Potawatomi, and Huron tribes
(among others) joined the uprising in an effort to drive British soldiers and settlers out
of the Great Lakes region.
610 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
liam Johnson, called together a monumental assembly at Fort Niagara,
which took place in 1764. This congregation has since been deemed the
most widely representative gathering of American Indians ever assem-
bled.8 Represented were over twenty-four nations [from] as far east as
Nova Scotia, and as far west as Mississippi, and as far north as Hudson
Bay.9 At this meeting a nation-to-nation relationship between the tribes
and the British settler society was affirmed by way of the Treaty of Niaga-
ra, which established that no member gave up their sovereignty.10 After
the two-day conference, which involved speeches, declarations of peace,
and exchanges of presents and wampum, the tribes dispersed back to
their respective homelands on either side of the then non-existent 5,525
mile east-west boundary line.
There was no way that the tribal representatives at Niagara could
have foreseen what would happen just over a decade after their momen-
tous gathering; their seven generations would be propelled on very differ-
ent trajectories, greatly dependent upon the arbitrary political lines
drawn by the forthcoming American and Canadian governments after the
American Revolution.
The purpose of this article is to provide a general, comparative analy-
sis of the differing levels of recognition and denial of the inherent rights of
indigenous peoples in North America by way of the Canadian and Ameri-
can constitutions, as well as the ensuing judicial and bureaucratic inter-
pretations of these rights. It should be clearly understood that this paper
is limited to the state perspectives and legal frameworks established by
the United States and Canada. It does not purport to provide indigenous
views of sovereignty and self-determination, which often challenge, on
many fronts, these state-enforced formulations.11 Though the overarching
power over indigenous collectives in North America ultimately exists be-
cause of military might and police force, the legal authority presumed to
have been established is maintained by way of these constitutionsand
often disfigured by slanted judicial interpretations or lack of access to the
courts established by the newcomers.12
8 Donald Braider, The Niagara (New York: Holt, Rinehart and Winston, 1972) at 137.
9 John Borrows, Wampum at Niagara: The Royal Proclamation, Canadian Legal Histo-
ry, and Self-Government in Michael Asch, ed, Aboriginal and Treaty Rights in Cana-
da: Essays on Law, Equality, and Respect for Difference (Vancouver: University of Brit-
ish Columbia Press, 1997) 155 at 163.
10 Ibid at 161.
11 See Taiaiake Alfred, Peace, Power, Righteousness: An Indigenous Manifesto, 2d ed (Ox-
ford: Oxford University Press, 2008).
12 See e.g. Jennifer E Dalton, Aboriginal Self-Determination in Canada: Protections Af-
forded by the Judiciary and Government (2006) 21:1 CJLS 11 (judicial decisions in-
INDIGENOUS RIGHTS IN A NORTH AMERICAN CONSTITUTIONAL CONTEXT 611
The approaches of Canada and the United States have transmogrified
in different ways. Since 1876, Canada has dealt with Aboriginal peoples
by way of the Indian Act,13 a single, comprehensive statute that defines
and controls nearly all aspects of Aboriginal peoples dealings with the
government. Because of this, the Canadian approach has at least been
generally consistent. Conversely, the American approach seems to have
suffered from some peculiar multiple personality disorder: Indian law is
a loosely related collection of past and present acts of Congress, treaties
and agreements, executive orders, administrative rulings, and judicial
opinions connected only by the fact that law in some haphazard form has
been applied to American Indians over the course of several centuries.14
Notwithstanding the United States haphazard approach to its deal-
ings with Indian tribes, this article argues that it has a better record of
recognizing, and to a certain degree, even nurturing, the rights of Indian
tribes. This argument is rooted in the view that the two main Canadian
constitutional documents15 have increasingly bound Aboriginal peoples to
Canadian society to the detriment of their own distinct sovereignties. Ab-
original peoples forced into the folds of these two Canadian constitutional
schemes have paid an expensive price. They certainly did not consent to,
nor were they consulted about, their inclusion in the 1867 scheme, and
[i]t should not be forgotten that the Aboriginal peoples were not directly
involved in patriation of the Constitution and inclusion of the Charter in
1981-82; on the contrary, there was strong opposition to patriation among
them.16 Some Aboriginal representatives lobbied in London, England,
against the new constitution and attempted to block patriation in the
British courts.17
volving section 35(1) of the Constitution Act, 1982 have not provided or advanced the
right of self-determination); Matthew LM Fletcher, Factbound and Splitless: The Cer-
tiorari Process as Barrier to Justice for Indian Tribes (2009) 51:4 Ariz L Rev 933 (the
US Supreme Courts certiorari process creates conditions that lead the Supreme Court
to accept cases that are likely to be decided against tribal interests at 937 [emphasis
omitted]).
13 The Indian Act (supra note 3) is discussed below, in Part II. In the United States, there
is no comparable statute, and as a result, political intercourse with Indian tribes is of-
ten erratic and uncoordinated.
14 Vine Deloria Jr & David E Wilkins, Tribes, Treaties, and Constitutional Tribulations
(Austin: University of Texas Press, 1999) at 158.
15 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5;
Constitution Act, 1982, supra note 3.
16 Kent McNeil, Aboriginal Governments and the Canadian Charter of Rights and Free-
doms (1996) 34:1 Osgoode Hall LJ 61 at 70 [McNeil, Aboriginal Governments].
17 See Douglas E Sanders, The Indian Lobby in Keith Banting & Richard Simeon, eds,
And No One Cheered: Federalism, Democracy and the Constitution Act (Toronto: Me-
612 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Contrastingly, it will be shown how the United States claim of federal
plenary power over Indian tribes (rather than Canadas aim of absorbing
Aboriginal peoples within society) has, ironically, helped to distinguish
and solidify lines of sovereignty for tribes in the United States, or as Pres-
ident Lyndon B. Johnson stated in 1968, to affirm the right of the first
Americans to remain Indians while exercising their rights as Ameri-
cans.18 It was around the same time as President Johnson made this dis-
tinction that Prime Minister Pierre Trudeau thought it inconceivable …
that in a given society one section of the society [could] have a treaty with
the other section of the society.19 He continued, We must all be equal
under the laws and we must not sign treaties amongst ourselves.20 Clear-
ly, there was a difference in the perception of who and what indigenous
peoples were in North America. It remains so today, and this difference is
the focus of this article.
Ironically, whereas the United States was founded upon the fierce be-
lief in individual liberties and Canada chose to remain a steadfast, loyal
member of a larger British Commonwealth collective, the two nations
have actually treated the respective indigenous populations within their
borders contrary to these countries own historical political tenets. Indian
tribes in the United States have enjoyed a greater degree of indigenous
communal rights, while Aboriginal peoples in Canada have experienced a
significantly lesser one.
As will be shown, Canada lags behind the United States by over three-
quarters of a century, ultimately due to its courts, legislators, and bu-
reaucrats steadfast refusal to acknowledge Aboriginal peoples sovereign-
ty in any true sense. But speaking optimistically, Canada does enjoy an
advantage in that it can, and should, learn from the mistakes made by
both the United States and the Indian tribes within it.
Granted, there are some ways in which Canadian law is better than
American law in this field. The Supreme Court of Canada, despite its te-
thuen, 1983) 301; R v United Kingdom (Secretary of State for Foreign and Common-
wealth Affairs); ex parte Indian Association of Alberta, [1982] QB 892, [1982] WLR 641
CA (Eng).
18 The Forgotten American, Weekly Compilation of Presidential Documents 4:10 (11
March 1968) 438 at 448.
19 The Right Honourable Pierre Elliot Trudeau, Remarks on Indian Aboriginal and Trea-
ty Rights (delivered at the Aboriginal and Treaty Rights Meeting, Vancouver, 8 August
1969), cited in Alan C Cairns, Citizens Plus: Aboriginal Peoples and the Canadian State
(Vancouver: University of British Columbia Press, 2000) at 52.
20 The Right Honourable Pierre Elliot Trudeau, Address (delivered at the Meeting of the
Don Valley Liberal Association, Question and Answer Session, Don Valley, Ont, 21
January 1972), cited in Cairns, supra note 19 at 52.
INDIGENOUS RIGHTS IN A NORTH AMERICAN CONSTITUTIONAL CONTEXT 613
nacious unwillingness to frame Aboriginal rights broadly (even though it
has the ability to do so), still has not demonstrated the hostility and igno-
rance21 that its American counterpart has shown in the past three dec-
ades, since Oliphant v. Suquamish Indian Tribe.22 Furthermore, and per-
haps most importantly, the bright-line limitation of the federal plenary
power under Canadas constitution is a real advantage not enjoyed by In-
dians in the United Statesand will be discussed in more depth below in
Part IV. Regardless of these advantages, Canada would still gain valuable
insight by looking south to how the United States has succeeded (and
failed) in its treatment of the Indian population within its borders.
To properly explain where indigenous people in North America find
themselves today in the context of their sui generis23 rights, it is quite
necessary to provide a historical backdrop. This will explain the circuitous
route that indigenous peoples have taken (or perhaps more appropriately,
have been taken on), depending on which side of the previously non-
existent American and Canadian border their ancestral territories were
located when the geopolitical boundaries were marked off by the United
States and Great Britain after the American Revolution.
21 For a damning historical look at the US Supreme Courts treatment of Indian tribes
since Johnson v. MIntosh (21 US (8 Wheat) 543 (available on WL Can) (1823) [John-
son]), see David E Wilkins, American Indian Sovereignty and the U.S. Supreme Court:
The Masking of Justice (Austin: University of Texas Press, 1997).
22 435 US 191 (1978), 98 S Ct 1011 [Oliphant cited to US] (non-Indians who violate tribal
law are immune from prosecution in a tribal court unless Congress has expressly con-
ferred that power). However, Congress has recently (February 28, 2013) tempered this
decision with an expansion of the Violence Against Women Act (42 USC 13925-4045d
(2006)) allowing tribal courts jurisdiction over domestic violence and sex crimes involv-
ing an Indian and non-Indian on tribal lands: see Violence Against Women Reauthoriza-
tion Act of 2013, Pub L No 113-4, 904 (slip law), online: The Library of Congress
The Canadian Court Justice Indian Law Report Card, online: Turtle Talk
Canada (since 1982)); Peter Scott Vicaire, The Supreme Court Justice Indian Law Re-
port Card, online: Turtle Talk
23 Sui generis, meaning of its own kind or unique, is a term of art in Canadian Abo-
riginal law. It was introduced in the landmark Supreme Court decision Guerin v. The
Queen ([1984] 2 SCR 335, (sub nom Guerin v R) 13 DLR (4th) 321), where the Court
held that the Canadian government has a fiduciary duty to First Nations and that Abo-
riginal title is a sui generis right.
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I. Historical Starting Lines: Dissimilar Beginnings
With the birth of the fledgling United States, many Indian tribes24
found themselves within a nation that resented them for the assistance
that they provided to the British during the revolution. The United States
did not want the Indian tribes as a part of their country, and its policies
were, from the start, designed to separate rather than include.25 There
was an observable us and them mentality, which would ultimately
benefit Indian tribes in the United States.
For example, in a letter written by George Washington concerning the
decision of many tribes to side with the British in the Revolutionary War,
he expressed his desire to draw a veil over what is past and establish a
boundary line between them and us.26 Washington saw the lands and ter-
ritories held by British-allied tribes as conquered provinces even though
he did not advocate removing them from the land.27 Washington reasoned
that the Indian tribes could not be restrained from acts of hostility, but
were determined to join their Arms to those of G. Britain and to share
their fortune; so, consequently, with a less generous People than Ameri-
cans they would be made to share the same fate.28 Further, in 1801,
Thomas Jefferson referred to tribes in his first presidential annual mes-
24 Though the western tribes tended to favor the British (stemming from the cultivation of
good relations since the defeat of Pontiac), the Iroquois Confederacy was split. Six Na-
tions Chief Joseph persuaded the Mohawk and some Seneca to support the British, but
many Oneida and Tuscarora sided with the Americans. After an American attack on
them, many of the previously neutral Onondaga and Cayuga chose to side with the
British. For an interesting article discussing competing Cayuga claims against New
York between those who stayed in New York and those who moved to Ontario, see
Howard A Vernon, The Cayuga Claims: A Background Study (1980) 4:3 American In-
dian Culture and Research Journal 21 at 32-33.
25 For a good starting point in the discussion of the unique legal status of Indians in the
United States, see Francis Paul Pruchas foundational works: American Indian Trea-
ties: The History of a Political Anomaly (Berkeley: University of California Press, 1994);
The Great Father: The United States Government and the American Indians (Lincoln,
Neb: University of Nebraska Press, 1984) [Prucha, Great Father].
26 Letter from George Washington to James Duane (7 September 1783) in Camilla Town-
send, ed, American Indian History: A Documentary Reader (Malden, Mass: Wiley-
Blackwell, 2009) 84 at 85 [emphasis added].
27 See Ibid. Robertson provides a fascinating look at Johnson (supra note 21), a small land
claim dispute before the US Supreme Court that introduced the already internationally
recognized discovery doctrine to American law. This doctrine provided the United
States with the legal, albeit immoral, authority to remove indigenous peoples from their
lands: see Robertson, supra note 6 at 75-76. See also Stuart Banner, How the Indians
Lost Their Land: Law and Power on the Frontier (Cambridge, Mass: Belknap Press,
2005).
28 Washington, supra note 26 at 85.
INDIGENOUS RIGHTS IN A NORTH AMERICAN CONSTITUTIONAL CONTEXT 615
sage as our Indian neighbors,29 and James Madison later called them
our aboriginal neighbors.30 Clearly, all three of these American founding
fathers did not consider Indians to be American, and as we shall see,
Washingtons claim that Americans were a more generous people to In-
dians than the British would prove to be quite accurate, if not prophetic.
On the other side of the invisible political wall that emerged after the
chaos of the Revolutionary War were tribes in what would become the
Dominion of Canada and that had generally shown allegiance to the Brit-
ish Crown in the Revolutionary War.31 Many of those same tribes32 would
again side with the British in the War of 1812, encouraged by the belief
that Great Britain would create for them a buffer state with a separated
Indian population in the Ohio Valley.33 Of course, that did not transpire,
and as these tribes influence on military matters waned in the first half
of the nineteenth century, so too did their political standing and treaty-
making powers.34
For the purposes of this article, there were actually two historical
newcomer beginningsSeptember 17, 1787, and July 1, 1867, when the
United States and Canada, respectively, adopted their constitutions. The
variance in military power held by tribes at the time of the adoption of
these two constitutions is critical; this eighty-year difference has had an
enormous effect on the way that indigenous peoples have been dealt with
and has directly led to the substantial differences that exist today. Cer-
tainly, seeds planted early in fertile soil produce more desirable crops
than those tossed on long-barren ground.
29 Thomas Jefferson, First Annual Message (delivered 8 December 1801) in A Compila-
tion of the Messages and Papers of the Presidents (New York: Bureau of National Litera-
ture, 1897) vol 1 at 314, online: Law Library Microform Consortium
30 James Madison, Inaugural Address (delivered 4 March 1809) in Messages and Papers
of the Presidents, supra note 29, vol 2 at 453.76
31 According to James H. Merrell (Indians and the New Republic in Jack P Greene & JR
Pole, eds, The Blackwell Encyclopedia of the American Revolution (Cambridge, Mass:
Blackwell, 1991) 392 at 393), it is estimated that approximately thirteen thousand in-
digenous warriors fought on the British side.
32 The Shawnee, Creek Red Sticks, Ojibwe, Chickamauga, Fox, Iroquois, Miami, Mingo,
Ottawa, Kickapoo, Delaware (Lenape), and Mascouten fought with the British, while
only the Choctaw, Cherokee, and Creek allies fought alongside the Americans.
33 See JR Miller, Skyscrapers Hide the Heavens: A History of Indian-White Relations in
Canada, 3d ed (Toronto: University of Toronto Press, 2000) at 106.
34 For an illuminating survey of pre-1800 treaty making between indigenous and Europe-
an Americans, see Robert A Williams Jr, Linking Arms Together: American Indian
Treaty Visions of Law and Peace, 1600-1800 (New York: Oxford University Press, 1997).
616 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
A. United States
1. Preconstitutional United States
Article IX of the Articles of Confederation provided an express grant of
authority to Congress to handle dealings with Indians but also contained
a parallel, protective clause afforded to the states.35 Congress was given
sole and exclusive right [of] … regulating the trade and managing all af-
fairs with the Indians, not members of any of the States, provided that
the legislative right of any State within its own limits be not infringed or
violated.36 Thus, what was supposedly an exclusive delegation of power to
the central government was in fact severely limited by the parallel reser-
vation of state power. However, the discontents and confusion resulting
from these conflicting claims were later (postconstitutionally) discussed
by Chief Justice John Marshall in Worcester v. Georgia,37 where he af-
firmed that the constitutional legitimacy to deal with Indians was provid-
ed solely to the federal government and that states could no longer inter-
fere in Indian matters and relations.
2. Postconstitutional United States
The US Constitution is the source of federal power to control Indian
affairs. As interpreted by Chief Justice Marshall in Worcester, it confers
on congress the powers of war and peace; of making treaties, and of regu-
lating commerce with foreign nations, and among the several states, and
with the Indian tribes. These powers comprehend all that is required for
the regulation of our intercourse with the Indians. … The shackles im-
posed on this power, in the confederation, are discarded.38 The assump-
tion of congressional power over Indian tribes by virtue of the commerce
clause is troubling to many (mainly Indians), because nowhere does that
clause confer power over Indian tribes; rather, it simply provides the pow-
er to regulate commerce and enter into treaties with Indian tribes. Re-
gardless, that is how the commerce clause has been interpreted since
35 For an interesting analysis of preconstitutional federal power in Indian affairs, see
Matthew LM Fletcher, Preconstitutional Federal Power (2007) 82:2 Tul L Rev 509
(regarding a preconstitutional source for congressional plenary power over Indian af-
fairs that may have survived the ratification of the constitution).
36 Articles of Confederation, 1781, art IX [emphasis in original].
37 31 US (6 Pet) 515 at 559 (available on WL Can) (1832) [Worcester].
38 Ibid [emphasis in original].
INDIGENOUS RIGHTS IN A NORTH AMERICAN CONSTITUTIONAL CONTEXT 617
Worcester, the last of three cases, known as the Marshall trilogy,39 which
form the foundation of Indian law in the United States to this day.40
The commerce clause41 is one of only three places in the US Constitu-
tion that mention Indians42 and is by far the most important of the
three.43 It is often referred to as the foreign commerce clause, the inter-
state commerce clause, and the Indian commerce clause, each of which
is simply a different application of the same sentence. In order to bolster
the legal rationale for the United States constitutional authority over In-
dians, Chief Justice Marshall coupled the commerce clause with the trea-
ty clause44 to provide Congress with all that is required for the regula-
tion of our intercourse … with [tribes].45 But as noted by Professor Mat-
thew Fletcher, because some Indian tribes had accepted the protection of
the United States by way of treaties, Chief Justice Marshalls supreme
court improperly interpreted the word protection to mean dependence.
It was this alleged dependence upon the federal government that suppos-
edly authorized Congress to assume control over all tribes, as if one
tribes dependence amounted to all tribes dependence.46
39 It was held in Worcester that state law was null within reservation lands. The other two
cases are Cherokee Nation v. Georgia (30 US (5 Pet) 1 (available on WL Can) (1831)
[Cherokee Nation] (Indian nations were neither states nor foreign nations; they were
domestic dependent nations at 17)) and Johnson (supra note 21 at 572-74 (by virtue of
the doctrine of discovery, only the United States had the right to extinguish, by pur-
chase or conquest, Indian title to land; Indians only held a right of occupancy)). These
decisions have never been overruled, and although Worcester has been substantially
eroded over the years, all three still serve as the foundation of contemporary American
Indian law.
40 For an interesting overview of the Marshall trilogy, see Matthew LM Fletcher, The
Iron Cold of the Marshall Trilogy (2006) 82:3 NDL Rev 627 (the pedagogical value of
the Marshall Trilogy goes far beyond the mere holdings of the cases. … The arguments,
concepts, and notions in these opinions resonate today about 170 years after the last of
the decisions at 628).
41 US Const art I, 8, cl 3.
42 The other two times that Indians are mentioned in the US Constitution are in article I,
section 2, clause 3, and its superseding (1868) amendment XIV, section 2, which re-
moved the reference to slaves as being three-fifths of a person, while retaining the ex-
clusion of Indians not taxed, for voting-apportionment purposes.
43 Interestingly and in what is no doubt a comment on his perception of Indians in the
American constitutional scheme, Chief Justice William H Rehnquist, in his book, The
Supreme Court: How It Was, How It Is ((New York: Alfred A Knopf, 2001) at 36), dis-
cussed the commerce clause and performed a bit of constitutional revisionism when he
cropped the words and with the Indian Tribes.
44 US Const art II, 2, cl 2.
45 Worcester, supra note 37 at 559.
46 Matthew LM Fletcher, The Supreme Court and Federal Indian Policy (2006) 85:1 Neb
L Rev 121 at 166 [Fletcher, Supreme Court].
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However, in 1871, thirty-six years after Chief Justice Marshall left the
bench (upon his death), Congress passed a law that put an end to treaty
making with Indian tribes.47 Since then, the two-pronged legal rationale
for American authority over tribes has been effectively halved, and the US
Supreme Court has since had to rely solely on the commerce clause.48 But
this loss of the two-pronged approach has not been a problem for the US
Supreme Court. In fact, control over tribes significantly increased shortly
after treaty making became outmoded.
For instance, in 1886, the US Supreme Court determined49 that Con-
gress was lawfully sanctioned to authorize the Major Crimes Act,50 which
extended federal criminal jurisdiction into Indian country.51 Further, in
1903, the US Supreme Court held, in Lone Wolf v. Hitchcock,52 that there
were no effective limits on federal power over Indian tribes; the power is
plenarylike the court that rendered the decision, supreme. This outright
assumption of federal plenary power over Indian tribes was a critical
blow, seen by one judge (in 1979) as one of the blackest days in the histo-
ry of the American Indian, the Indians Dred Scott decision.53 It remains
47 An Act making Appropriations for the current and contingent Expenses of the Indian
Department, and for fulfilling Treaty Stipulations with various Indian Tribes, for the
Year ending June thirty, eighteen hundred and seventy-two, and for other Purposes, c
120, 3, 16 Stat 544 at 570-71 (1871) (codified as amended at 25 USC 71 (2006)). For
an interesting argument that the statute is unconstitutional, see David P Currie, Indi-
an Treaties (2007) 10:4 Green Bag (2d) 445.
48 It is interesting to note that the US Supreme Court recently held in National Federa-
tion of Independent Business v. Sebelius (567 US __, 132 S Ct 2566 (2012)), that the
commerce clause could not be used to enforce an individual mandate to purchase health
care, yet that very clause is still used to claim absolute power over all Indian tribes in
the United States.
49 United States v Kagama, 118 US 375, 6 S Ct 1109 (1886) [Kagama cited to US].
50 An act making appropriations for the current and contingent expenses of the Indian De-
partment, and for fulfilling treaty stipulations with various Indian tribes, for the year
ending June thirtieth, eighteen hundred and eighty-six, and for other purposes, c 341,
9, 23 Stat 362 at 385 (1885) (codified as amended at 18 USC 1153 (2006)).
51 Indian country is a term of art, defined in 18 USC 1151 (2006). It is often used inter-
changeably with Indian Reservation, but there are important differences. Indian
country includes reservations, dependent Indian communities, and trust allotments
and restricted allotments that may be located outside reservations.
52 187 US 553, 23 S Ct 216 (1903).
53 Sioux Nation of Indians v United States, 601 F (2d) 1157 at 1173, 220 C Cls R 442
(1979) (Nichols J, concurring). Scott v. Sandford (60 US (19 How) 393, 15 L Ed 691
(1857) [Dred Scott cited to US]) was a US Supreme Court ruling that people of African
descent held as slaves (and their descendants, whether or not they themselves were
slaves) neither were citizens nor were protected under the constitution.
INDIGENOUS RIGHTS IN A NORTH AMERICAN CONSTITUTIONAL CONTEXT 619
a catalyst for much modern academic discourse54 and, to a much lesser
degree, even judicial criticism.55
3. States Versus Tribes
Article I, section 8 of the US Constitution provides the federal gov-
ernment with a limited, enumerated list of powers, further refined by the
Bill of Rights,56 and which establishes the authoritative limits of Con-
gress. Clearly state-centric, the Tenth Amendment explicitly states that
[t]he powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to
the people.57 Notwithstanding this broad range of powers, states still
generally do not have jurisdictional authority in Indian country for either
criminal or non-criminal matters58 because the commerce clause serves as
54 See Robert G Natelson, The Original Understanding of the Indian Commerce Clause
(2007) 85:2 Denv UL Rev 201 ([w]ithin its sphere, the [commerce clause] … provided
Congress with authority to override state laws. It did not … abolish or alter the pre-
existing state commercial and police power over Indians within state borders at 265);
Fletcher, Supreme Court, supra note 46 (the lack of constitutional grounding for fed-
eral Indian law opens the door to new Supreme Court precedent. Since nothing in the
Constitution prevents or even discourages the Court from making policy choices, there
is no respect for stare decisis in the Courts Indian cases at 162-63); Alex Tallchief
Skibine, The Dialogic of Federalism in Federal Indian Law and the Rehnquist Court:
The Need for Coherence and Integration (2003) 8:1 Tex F on CL & CR 1 (the US Su-
preme Courts anti-tribal decisions [are due to] … its failure to integrate its general ju-
risprudence on federalism and associational rights, as well as its preference for formal-
ism, into federal Indian law at 3 ×.); Robert N Clinton, There Is No
Federal Supremacy Clause for Indian Tribes (2002) 34:1 Ariz St LJ 113 (application of
the Supreme Courts historically-based, originalist methodology to those portions of the
Constitution dealing with federal power over Indian affairs compels the need to reex-
amine several basic Indian law doctrines, most notably the so-called federal Indian ple-
nary power doctrine at 115); Nell Jessup Newton, Federal Power over Indians: Its
Sources, Scope, and Limitations (1984) 132:2 U Pa L Rev 195 (extraordinary defer-
ence to congressional power over Indians is closely related to the courts failure to pro-
tect Indian tribal rights at 197).
55 See Red Lake Band of Chippewa Indians v Swimmer, 740 F Supp 9 at 11-12 (available
on WL Can) (DDC 1990).
56 The Bill of Rights is the name for the first ten amendments to the US Constitution.
57 US Const amend X.
58 Apart from the several PL 280 states (discussed below in Part III), states have jurisdic-
tion in criminal matters only when both the accused and the victim are non-Indians.
Also, after Nevada v. Hicks (533 US 353, 121 S Ct 2304 (2001) [Hicks cited to US]),
states may also exercise jurisdiction over Indians living on the reservation for their ac-
tivities off the reservation.
620 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
a bar against state authority when Congress enacts legislation that ex-
pressly restrains that authority.59
Nevertheless, just as soon as the United States became a nation,
states attempted to assume jurisdictional control over Indian country and
would have succeeded far more than they did had it not been for the U.S.
Supreme Court.60
Returning briefly to Worcester v. Georgia, the US Supreme Court firm-
ly held in that case that state laws can have no force61 on an Indian res-
ervation without Congresss express consent. Further, it later recognized,
in 1886, that [Indian tribes] owe no allegiance to the States, and receive
from them no protection. Because of the local ill feeling, the people of the
States where they are found are often their deadliest enemies.62 To be
sure, this was amply illustrated in 1832, when the state of Georgia ig-
nored Chief Justice Marshalls Worcester decision and evicted the Chero-
kees from their ancestral homeland, in what has come to be known as the
Trail of Tears.63 Regardless, to this day, Indian tribes are still generally
considered to be outside state jurisdiction because they are domestic de-
pendent nations,64 over which state laws can have no force.65
While the US Supreme Court has often proven to be an effective buffer
for Indian tribes against impinging state interests,66 two laws have been
59 One important example of this is the Indian Nonintercourse Act (An act to regulate
trade and intercourse with the Indian tribes, c 33, 4, 1 Stat 137 at 138 (1790) (codified
as amended at 25 USC 177 (2006)), first passed in 1790, which requires the federal
government to approve all transfers of interests in tribal lands.
60 Stephen L Pevar, The Rights of Indians and Tribes: The Authoritative ACLU Guide to
Indian and Tribal Rights, 3d ed (Carbondale, Ill: Southern Illinois University Press,
2004) at 176.
61 Worcester, supra note 37 at 561.
62 Kagama, supra note 49 at 384. Ironically, this call for protection of tribes from en-
croaching states was the reasoning behind the implementation of the plenary power
doctrine.
63 For a useful, succinct history, see Gloria Jahoda, The Trail of Tears: The Story of the
American Indian Removals, 1813-1855 (New York: Holt, Rinehart and Winston, 1975).
64 Cherokee Nation, supra note 39 at 17.
65 Worcester, supra note 37 at 561.
66 Oklahoma Tax Commission v Chickasaw Nation, 515 US 450, 115 S Ct 2214 (1995)
[cited to US] (state may not apply its motor fuels tax … to fuel sold by [a tribe] … in In-
dian country but may tax the income … of all persons, Indian and non-Indian alike,
residing in the [s]tate outside Indian country at 453); Bryan v Itasca County, 426 US
373, 96 S Ct 2102 (1976) (state could not impose tax on reservation Indians in the ab-
sence of congressional intent, as the statute that extended civil jurisdiction of the states
to Indian reservations did not confer the power to tax); McClanahan v Arizona State
Tax Commission, 411 US 164, (sub nom McClanahan v State Tax Commission of Arizo-
INDIGENOUS RIGHTS IN A NORTH AMERICAN CONSTITUTIONAL CONTEXT 621
passed by Congress that permit the outright intrusion of state govern-
ments into Indian country: House Concurrent Resolution 10867 and Public
Law 280.68
House Concurrent Resolution 108 was the harbinger of the dreaded
termination era and will be discussed below in Part III, while PL 280 au-
thorized five mandatory states69 to receive full criminal jurisdiction in
Indian country and allowed for the remaining states to opt in to assume
criminal jurisdiction. Because most states did not want the added burden
and costs of policing reservations, only ten option states did so. As a re-
sult, today, there is a confusing patchwork scheme of state, tribal, and
federal control in criminal matters. But however intrusive PL 280 may be,
it should be remembered that it did not divest tribes of their inherent
powers, nor did it waive tribal sovereign immunity from suit or provide
states with any authority over the tribes themselves. Further, it did not
allow states to interfere with treaty rights, encumber trust property, or
determine the ownership of trust land.70
The US Supreme Court, exhibiting its above-mentioned multipleper-
sonality disorder, has also handed down many decisions that have strong-
ly favoured state over tribal interests.71 This dilution of the Worcester ap-
na) 93 S Ct 1257 (1973) [cited to US] (Arizona state individual income tax was unlaw-
ful as applied to reservation [Navajo] Indians with income derived wholly from reserva-
tion sources at 165); Williams v Lee, 358 US 217, 79 S Ct 269 (1959) [Williams cited to
US] (state courts do not have jurisdiction over a civil suit brought against an Indian by
a non-Indian where the cause of action arises on a reservation).
67 US, HR Con Res 108, Indians, 83d Cong, 1953, as repudiated by the Tribally Controlled
Schools Act of 1988, Pub L No 100-297, 5203(f), 102 Stat 385 at 385 (codified as
amended at 25 USC 2501(f)) [House Concurrent Resolution 108]. See also infra note
191 and accompanying text.
68 An Act to confer jurisdiction on the States of California, Minnesota, Nebraska, Oregon,
and Wisconsin, with respect to criminal offenses and civil causes of action committed or
arising on Indian reservations within such States, and for other purposes, Pub L No 83-
280, 67 Stat 588 (1953) (codified as amended at 18 USC 1162 (2006) (PL 280)). For a
solid look at the history of PL 280 and the damage wrought upon affected Indian tribes,
see Carole Goldberg-Ambrose with the assistance of Timothy Carr Seward, Planting
Tail Feathers: Tribal Survival and Public Law 280 (Los Angeles: American Indian
Studies Center University of California, 1997); Carole Goldberg-Ambrose & Duane
Champagne with assistance from Wallace T Cleaves et al, A Second Century of Dishon-
or: Federal Inequities and California Tribes (UCLA American Indian Studies Center for
the Advisory Council on California Indian Policy, 1996).
69 California, Minnesota (except the Red Lake Reservation), Nebraska, Oregon (except the
Warm Springs Reservation), and Wisconsin (except the Menominee Reservation).
70 See e.g. Boisclair v Superior Court of San Diego County, 801 P (2d) 305, 313-15 (availa-
ble on WL Can) (Sup Ct Cal 1990).
71 See e.g. Strate v A-1 Contractors, 520 US 438, 117 S Ct 1404 (1997) [cited to US] (ab-
sent express authorization by federal statute or treaty, tribal jurisdiction over conduct
622 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
proach has led to the use of two tests designed to identify and, when war-
ranted, repel state infringement into tribal matters: the federal pre-
emption test and the infringement test.72
The federal pre-emption test is powered by the supremacy clause,73
which establishes that federal laws (and treaties) are the highest form of
law in the American legal system, both in federal and state courts; state
judges are mandated to uphold them, even if their own states constitution
or laws conflict with them. As discussed above, since the regulation of In-
dian affairs is squarely in the federal realm of powers via the commerce
clause, any state law that conflicts with federal law fails this test.74 Fur-
ther, states generally cannot pass the test when the regulation or law in
question mainly affects the tribe or its members with respect to activities
carried out on the reservation.75
Whereas the federal pre-emption test is concerned with preventing
states from stepping on federal toes, the infringement test is concerned
with preventing states from stepping on tribal ones. In Williams v. Lee, a
case involving the determination of tribal-court jurisdiction, the US Su-
preme Court held that states may not infringe on the right of reservation
of nonmembers exists only in limited circumstances at 445); Department of Taxation
and Finance of New York v Milhelm Attea & Bros, 512 US 61, 114 S Ct 2028 (1994) [cit-
ed to US](Indian traders are not wholly immune from state regulation that is reasona-
bly necessary to assessment or collection of lawful state taxes at 75); Oliphant, supra
note 22 (Indian trib[al courts] do not have inherent criminal jurisdiction to try and to
punish non-Indians at 212; Indians do not have criminal jurisdiction over non-Indians
absent affirmative delegation of such power by Congress at 208); Moe v Confederated
Salish and Kootenai Tribes of the Flathead Reservation, 425 US 463, 96 S Ct 1634
(1976) [cited to US] ([s]tate may require [an Indian retailer on the reservation] … to
add the tax [on cigarettes] to the sales price [with respect to sales to non-Indians] at
483); Utah & Northern Railway v Fisher, 116 US 28, 6 S Ct 246 (1885) (states could tax
personal property owned by non-Indians on a reservation); United States v McBratney,
104 US 621, 26 L Ed 869 (1881) (states could prosecute non-Indians who commit a
crime against another non-Indian on a reservation).
72 For a good introduction to the pre-emption and infringement tests, see Steven Paul
Sherick, State Jurisdiction over Indians as a Subject of Federal Common Law: The In-
fringement-Preemption Test (1979) 21:1 Ariz L Rev 85. See also David H Getches et al,
Cases and Materials on Federal Indian Law, 6th ed (St. Paul: West, 2011) at 596-601.
73 US Const art VI, cl 2.
74 See White Mountain Apache Tribe v Bracker, 448 US 136, 100 S Ct 2578 (1980) [cited to
US] ([state] taxes are pre-empted by federal law at 138; the proposed exercise of state
authority is impermissible at 151); Warren Trading Post Co v Arizona Tax Commis-
sion, 380 US 685, 85 S Ct 1242 (1965) [cited to US] (state tax cannot be imposed con-
sistently with federal statutes applicable to the Indians on the Navajo Reservation at
686).
75 See Hicks, supra note 58 at 362.
INDIGENOUS RIGHTS IN A NORTH AMERICAN CONSTITUTIONAL CONTEXT 623
Indians to make their own laws and be ruled by them.76 This statement
encapsulates the intent of the test: shielding tribes from state power and
at the same time, protecting the right of tribes to be self-governing.77
This modern framework certainly does not provide as much protection
for tribes against states as did Marshalls original Worcester and Cherokee
Nation understandingthat state law can have no force on domestic
dependent nations. As such, since those decisions (1832 and 1831, respec-
tively), there has been a three-way jurisdictional tug-of-war among tribal,
federal, and state interests, predicated on interpretations of the constitu-
tional framework, yet with consistent acknowledgement of three sover-
eigns.78
Unfortunately for tribes in the United States, their respective sover-
eignties have not often been afforded the same respect as those of the
states in which their lands lie. But as we will see below, their situation is
enviable compared to the protections afforded to tribes in Canada. The fol-
lowing section will describe how Canadas early and enduring view of Ab-
original peoples differed from that of the United States and how this per-
ception led directly to very damaging legislation and judicial interpreta-
tions.
B. Canada
1. Preconstitutional Canada
During the first half of the nineteenth century, comparable approach-
es in dealings with indigenous peoples were taken by American and Ca-
nadian courts.79 Whereas Chief Justice Marshall saw tribes as domestic
dependent nations,80 the judiciary in Upper Canada saw them as a dis-
76 Williams, supra note 66 at 220.
77 See Pevar, supra note 60 at 133.
78 For a modern look at the expansion of state jurisdiction in Indian country, see Jeff
Corntassel & Richard C Witmer, Forced Federalism: Contemporary Challenges to In-
digenous Nationhood (Norman, Okla: University of Oklahoma Press, 2008).
79 William Wicken provides a thorough examination of the preconstitutional history be-
tween the Mikmaq and the British in William C Wicken, Mikmaq Treaties on Trial:
History, Land, and Donald Marshall Junior (Toronto: University of Toronto Press,
2002). Likewise, Sidney L. Harring provides an illuminating history of this era in his
White Mans Law: Native People in Nineteenth-Century Canadian Jurisprudence (To-
ronto: University of Toronto Press for the Osgoode Society for Canadian Legal History,
1998).
80 Cherokee Nation, supra note 39 at 17.
624 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
tinct, though feudatory people.81 And whereas Chief Justice Marshall
saw a treaty as a contract between two nations, not a legislative act,82
the Upper Canada Kings Bench opined that however barbarous these
Indians may be considered, the treaty under which they migrated to and
reside in this country is binding.83
Notwithstanding these somewhat parallel views of Indian tribes and
Aboriginal peoples by Canadian and American courts, there was still a
critical, diverging undercurrent in play, based on the dichotomy of us
(i.e., subjects of the British Crown who were citizens neither of Canada
nor of their respective tribes) and them (i.e., citizens of tribes, not citi-
zens of the United States). These seeds of dissimilarity planted in the late
1700s would not bloom until 1867, with the enactment of the Canadian
constitution. In the interim, whereas many early British North American
cases discussed lands belonging to the Crown, yet reserved for Aboriginal
peoples occupation or put aside for their benefit,84 the United States rou-
tinely discussed the notion of Indian lands and the rights of occupancy be-
81 The King v Phelps (1823), 1 UCKB 47 at 52, 1 CNLC 411 [Phelps].
82 Foster v Neilson, 27 US (2 Pet) 253 at 314, 7 L Ed 415 (1829) [Foster].
83 Phelps, supra note 81 at 53.
84 See e.g. Totten v Watson (1858), 15 UCQB 392 (available on WL Can) (dealing with leg-
islation prohibiting Aboriginals from selling lands reserved for their occupation and
held by the Crown, but allowing sale of land by individual Indians who had acquired ti-
tle to the land); The Queen v Hagar (1857), 7 UCCP 380 (available on WL Can) (dealing
with legislation designed to protect Indians from all contracts made by them in respect
to the lands set apart for their use at 382); Lower Canada (Commissioner of Indian
Lands) v Payant Dit St Onge (1856), 3 LC Jur 313, 8 Rapports judiciaires reviss de
Qubec 29 (Sup Ct) [cited to LC Jur] (Aboriginals do not have any right or title, by vir-
tue whereof, [they can] … sell wood growing on lands that are set apart and appropri-
ated to and for the use of the tribe or body of Indians therein residing at 313, 315); R v
Baby (1855), 12 UCQB 346 (available on WL Can) (dealing with legislation prohibiting
the buying from Indians, or contracting to buy from them, without the consent of the
Crown, not merely any lands of which they are actually in possession but any lands
held by the government for their use and benefit at 353); The Queen v Strong (1850), 1
Gr / UC Ch 392 at 394 (available at WL Can) (parol testimony concerning lands appro-
priated for the residence of certain Indian tribes, which were trespassed upon by a
non-Aboriginal, was sufficient prima facie evidence); Doe dem Sheldon v Ramsay
(1852), 9 UCQB 105 (available on WL Can) (a grant of land by the governor of Quebec
to the Mohawks did not convey a legal estate); Bown v West (1846), 1 UCQB (OS) 639
(available on WL Can) (court could not interfere with a land transfer involving Aborigi-
nals because the Crown held the whole of the estate); Doe ex dem Jackson v Wilkes
(1835), 4 UCQB (OS) 142 (available on QL) (the Governor of a colony, acting in the
name of the King, could [not] under his own seal at arms grant away the lands of the
crown at 147).
INDIGENOUS RIGHTS IN A NORTH AMERICAN CONSTITUTIONAL CONTEXT 625
ing protected and respected by the courts until extinguished via legal
means.85
As discussed below, we shall see that the long delay on Canadas part
in recognizing aspects of inherent, indigenous rights even in part can be
directly attributed to the fact that Aboriginal peoples in Canada were con-
sidered subjects, though not citizens, until 1960. Contrastingly, Indians in
the United States were long considered neither subjects nor American cit-
izens; they were citizens of their own tribe and not a part of the American
body politic. The following section will elaborate on this divergent us
and them dichotomy.
2.
Subjects and Non-citizens Versus Nonsubjects and Non-citizens
The critical distinction between Canadas subject-non-citizen approach
and the United States nonsubject-non-citizen approach is highlighted by
two events that occurred only two years apartin 1868 and 1870. In
1868, the Fourteenth Amendment86 was ratified as a means for the US
Congress to overturn Scott v. Sanford,87 the vile US Supreme Court deci-
sion that held that black slaves (and their descendants, whether or not
they themselves were slaves) were not protected by the US Constitution
and could never be American citizens. However expansive the Fourteenth
Amendment may have been, it still limited that grant of citizenship to
those people who were subject to [US] … jurisdiction. Since Indians were
governed by their own respective tribal laws and not subject to US juris-
diction, they were not afforded citizenship. Simply put, they were not
American; they were Indian.
Contrastingly, two years laterin 1870Justice Dalton held, in R ex
rel. Gibb v. White, that [t]here is a marked difference between the posi-
tion of Indians in the United States and in this Province. There, the Indi-
an is an alien, not a citizen. … In [Upper Canada] … Indians are sub-
85 See e.g. Clark v Smith, 38 US (13 Pet) 195, 10 L Ed 123 (1839) (lands in which Indians
have a right of occupancy will be encumbered by that right until it is legally extin-
guished); Cherokee Nation, supra note 39 (Indians have rights of occupancy to their
lands as sacred as the fee-simple, absolute title of the whites at 48); Johnson, supra
note 21 (through the Revolutionary War and the ensuing treaties, the United States
earned the exclusive right to extinguish the Indians title to the land at issue); Fletcher
v Peck, 10 US (6 Cranch) 87, 3 L Ed 162 (1810) [cited to US] (the nature of Indian title,
which is certainly to be respected by all courts, until it be legitimately extinguished, is
not such as to be absolutely repugnant to a seisin in fee on the part of the state at 142-
43).
86 US Const amend XIV.
87 Dred Scott, supra note 53.
626 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
jects.88 Indeed, Indians in Canada were conveniently considered by the
Canadian government to be subjects but were still not afforded citizen
status unless they voluntarily enfranchised themselves.89 They were able
to cast election ballots or hold political office only if they surrendered their
treaty rights and Indian status or if they had fought for Canada in a
war.90 The unconditional franchise for Indians, with no strings attached,
was not granted until 1960, when Prime Minister John Diefenbaker
amended the Canada Elections Act.91 The United States beat Canada to
the punch by thirty-six years.
In 1924,92 Congress passed the Indian Citizenship Act,93 which con-
ferred American citizenship on all Indians born in the United States who
had not yet become citizens through treaties or statutes. However, the US
Supreme Court performed some jurisdictional damage control with Unit-
ed States v. Nice94 when it held that Indians remained subject to Congress
plenary authority even after they became United States citizens. There-
fore, as of 1924, Indians in the United States were both American citizens
and citizens of their own respective Indian tribes. Conversely, until 1960,
Aboriginals in Canada were stuck in a bizarre no mans land of pseudo-
citizenship. They were considered subjects but not full-fledged citizens; as
mentioned above, they could not vote or hold political office unless they
abandoned their Indian status and treaty rights.
George Washingtons aforementioned social, ideological, and geo-
graphical lines of distinction between the two groups were invaluable to
88 (1870), 5 PR 315 at 317 (available on QL) (Ont).
89 Enfranchisement was resisted, but compulsory enfranchisement came in various forms:
only people who could prove membership in particular bands were recognized as having
Indian status, while any Indians who fought for Canada in a war or became a doctor,
lawyer, or Christian minister were automatically enfranchised and lost their Indian
status.
90 See Canada Elections Act, RSC 1952, s 14(2)(e).
91 See An Act to amend the Canada Elections Act, SC 1960, c 7, s 1, repealing Canada
Elections Act, supra note 90, ss 14(2)(e), 14(4). The first Aboriginal (Okanagan) person
to be elected to the House of Commons was Leonard S. Marchand, who entered the
House on June 25, 1968.
92 This was fifty-four years after the Fifteenth Amendment granted all American citizens,
regardless of race, color, or previous condition of servitude, the right to vote (US Const
amend XV, 1).
93 An Act To authorize the Secretary of the Interior to issue certificates of citizenship to In-
dians, Pub L No 68-175, 43 Stat 253 (codified as amended at 8 USC 1401(b) (2006)).
94 241 US 591, 36 S Ct 696 (1916) [cited to US] (United States citizenship is not incom-
patible with tribal existence or continued guardianship, and so may be conferred with-
out completely emancipating the Indians or placing them beyond the reach of congres-
sional regulations adapted for their protection at 598).
INDIGENOUS RIGHTS IN A NORTH AMERICAN CONSTITUTIONAL CONTEXT 627
tribes in the United States in maintaining their sovereign indigenous sta-
tus. The benefits enjoyed by tribes in the United States by being them
were becoming evident, while the damages inflicted upon Aboriginal peo-
ples by being a member of us in Canada were quite destructive to their
sovereignty, which was never ceded, surrendered, or extinguished. Their
inclusion in Canadas first constitution would only exacerbate the prob-
lem.
3. Postconstitutional Canada
Eighty years after the United States adopted its constitution, Great
Britain passed the Constitution Act, 1867,95 which formed the Dominion of
Canada.96 Unlike the United States constitutional scheme, where any
rights not granted to the federal government were reserved for the states,
the Canadian scheme maintained an overarching federal jurisdiction
based upon the power known as Peace, Order, and good Government.97
Any matter not provided for under the enumerated, exclusive authority of
the provinces fell within the scope of the federal Parliament.
Unlike the status of Indians in the United States when its constitution
was adopted, Aboriginal peoples in Canada were seen as neither political-
ly significant nor militarily dangerous when the newly formed dominion
adopted its constitution. For example, the Council of the Three Fires,
which encompassed the entire traditional territory of the Ojibwa, Odawa,
and Potawatomi, had ceased to be an effective military entity because
First Nations military strength relative to newcomers had greatly dimin-
ished, and the United States and Britain had reached an entente in Amer-
ica thereby eliminating its potential as an ally to foreign powers.98
Because of this, when the British Crown divided up constitutional
powers between the federal and provincial governments, Aboriginal peo-
ples forcibly became a virtual constitutional footnote in section 91(24),
95 Constitution Act, 1867, supra note 15. At its time of enactment, it was called the British
North America Act.
96 The Dominion of Canada initially consisted of Ontario, Quebec, New Brunswick, and
Nova Scotia.
97 Constitution Act, 1867, supra note 15, s 91 ([i]t shall be lawful for the Queen, by and
with the Advice and Consent of the Senate and House of Commons, to make Laws for
the Peace, Order, and good Government of Canada, in relation to all Matters not com-
ing within the Classes of Subjects by this Act assigned exclusively to the Legislatures of
the Provinces). Peace, Order, and good Government is often abbreviated as POGG.
98 Norman D Shields, Anishinabek Political Alliance in the Post-Confederation Period: The
Grand General Indian Council of Ontario, 1870-1936 (MA Thesis, Queens University,
2001) at 14 [unpublished].
628 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
which simply reads: Indians, and Lands reserved for the Indians.99
Tossed into the federal pot, it is the only provision to deal with Aboriginal
peoples and has provided only minimal protection for their rights.100 Un-
like Indian tribes in the United States, which were placed alongside
states and foreign nations in the US Constitution,101 tribes in Canada
were actually placed further down the enumerated list of federal powers
than Beacons, Buoys, Lighthouses, and Sable Island.102
In 2001, the Ontario Court of Appeal claimed, in Chippewas of Sarnia
Band v. Canada (Attorney General),103 that until 1860, dealings between
the British Crown and First Nations were viewed as transactions between
sovereign nations governed by agreements or treaties made by the Eng-
lish Crown and the First Nations.104 The court was off the mark by sev-
eral decades because, in 1830, in light of the reduction in position of Abo-
riginal peoples from military allies to societal impediments, Britain
changed responsibility for Indian affairs from military to civil authori-
ties.105 This signified a decisive change in policy toward Aboriginal peo-
ples from one that was once characterized by diplomacy and respect of
military allies to one of submission to British authority.106 In 1840, the
Union Act107 made no mention of them and made no provision for the In-
dian Department on the civil list; nor did it budget for the long-standing
payment of annuities for Upper Canada treaties.
99 Those seven words speak volumes, as they show that Canadas land, even land re-
served for Aboriginal peoples, was already considered by Canadian officials as belong-
ing to the Crown. Contrastingly, the United States only held the exclusive right to ex-
tinguish Indian title to lands to which the Indians retained a right of occupancy.
100 John J Borrows & Leonard I Rotman, Aboriginal Legal Issues: Cases, Materials &
Commentary, 3d ed (Markham: LexisNexis, 2007) at 94.
101 But it should be remembered that the US Supreme Court later held, in Cherokee Na-
tion (supra note 39 at 17), that tribes were neither states nor foreign nations; they were
domestic dependent nations.
102 Constitution Act, 1867, supra note 15, s 91(9).
103 (2000), 51 OR (3d) 641, 195 DLR (4th) 135 (CA) [Chippewas cited to OR]. This case is
criticized for its departure from previous precedent and principles regarding the legal
treatment of Aboriginal people in Kent McNeil, Extinguishment of Aboriginal Title in
Canada: Treaties, Legislation, and Judicial Discretion (2001-2002) 33:2 Ottawa L Rev
301.
104 Chippewas, supra note 103 at para 51.
105 Magnet, supra note 5 at 40.
106 Paul Finkelman & Tim Alan Garrison, eds, Encyclopedia of United States Indian Policy
and Law (Washington, DC: CQ Press, 2009) vol 1, sub verbo Canada, Indian Policy of
by Susan Neylon, 161 at 163.
107 1840 (UK) 3 & 4 Vict, c 35, reprinted in RSC 1985, App II, No 4. This act abolished the
legislatures of Lower Canada and Upper Canada, and established a new political entity
to replace them, the Province of Canada.
INDIGENOUS RIGHTS IN A NORTH AMERICAN CONSTITUTIONAL CONTEXT 629
During the first half of the nineteenth century, there was scant politi-
cal activism by Aboriginal peoples and perhaps no pan-Indian activism
of any kind.108 In ensuing decades, the political and societal clout of Abo-
riginal peoples in British North America continued to decline, notwith-
standing the Mtis Red River Rebellion of 1869-70 and the ill-fated
Northwest Rebellion of 1885, which subsequently led to the Mtis leader,
Louis Riel, being executed by hanging. Even the eleven treaties109 signed
by the Aboriginal peoples and Canada between 1871 and 1921 were not
enough to stave off Aboriginal peoples political and societal diminish-
ment. Canada was too busy in its constitutional nation building to pay
much attention to displaced Aboriginal peoples, and Aboriginal peoples
were too busy simply trying to survive in a world overrun by newcomers.
It was not until the 1888 watershed St. Catherines decision110 that the
position of tribes in Canada and their title rights to lands were even con-
sidered. As for the outcome regarding Aboriginal peoples interests, tell-
ingly, Aboriginal peoples were not even a party in the case. A quick sum-
mary is in order.
St. Catherines was a federal-provincial dispute over lands within the
borders of Ontario. In 1873, a treaty111 was concluded between the Crown
and the Saulteaux Tribe of the Ojibbeway Indians. The federal govern-
ment later claimed that it had retained the right to issue commercial for-
estry licenses and that it did so to the St. Catherines Milling and Lumber
Company, the namesake of the case. In response, Ontario brought suit,
arguing that it owned the lands in question, that Aboriginal peoples (In-
dians is used in the case) held only a lesser use and occupancy right at
the pleasure of the Crown, and therefore, that the federal government did
108 Good starting points for research into early Aboriginal peoples political activism would
be Shields, supra note 98; Miller, supra note 33; Janet E Chute, The Legacy of
Shingwaukonse: A Century of Native Leadership (Toronto: University of Toronto Press,
1998).
109 The numbered treaties or Post-Confederation Treaties.
110 St. Catherines Milling & Lumber Co v The Queen (1888), 14 App Cas 46, 10 CRAC 13
(PC) [St. Catherines cited to App Cas] (note that it is spelled St. Catharines in the
lower court). The source of Aboriginal title was based on the Royal Proclamation of 1763
(supra note 4), giving Aboriginals a personal and usufructuary right, dependent upon
the good will of the Sovereign and which could be taken away at any time (St. Cathe-
rines, supra note 110 at 54).
111 Treaty No 3 Between Her Majesty the Queen and the Saulteaux Tribe of the Ojibbeway
Indians at the North West Angle of the Lake of the Woods, 3 October 1873, online: Abo-
riginal Affairs and Northern Development Canada
630 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
not have the right to issue lumbering permits. The court112 agreed with
the province on all counts, declaring that Aboriginal peoples right to the
land, even land under treaties, was merely a personal and usufructuary
right dependent upon the good will of the Sovereign,113 which flowed di-
rectly from the Royal Proclamation of 1763.114
In some ways, St. Catherines was much in line with Chief Justice
Marshalls Johnson v. MIntosh decision. Just as Indians in the United
States maintained only a right of occupancy,115 which could only be ex-
tinguished by Congress, Aboriginal peoples in Canada held personal and
usufructuary rights merely by the grace of the Crown. Contrastingly,
however, in the United States, the Indian tribes right of occupancy re-
sulted from their original ownership of the land, not on an external, for-
eign document. Ironically, and certainly a frustrating exercise in logic, the
St. Catherines court held that the British document that stripped Aborig-
inal peoples of their inherent rights was the same document that gave
them their currently recognized rights. Apparently, the Crown giveth and
the Crown taketh away.
Thus, Indians in the United States possessed (and still possess) inher-
ent, sovereign powers by virtue of who they areoriginal possessors of
the landwhile Aboriginals in Canada, at least until 1973, maintained
power solely based on what Great Britain and Canada gave them. Even
though they had never surrendered their sovereign, inherent rights, Can-
ada simply did not recognize that fact; they were considered Canadian
Aboriginal subjects, not sovereign Aboriginal peoples living in Canada.
This distinction is critical because, for almost a century since the St.
Catherines decision and well into modern times, Canadian society has
grown atop this skewed viewa dubious foundation for the nation.
It was not until the Calder116 decision of 1973 that Canada acknowl-
edged its faulty legal and moral reasoning, and finally caught up to the
way the United States had, since 1823, recognized Indian title to land.117
112 The Judicial Committee of the Privy Council, which sat in London, England, was the
ultimate court of appeal for Canada until 1949. With the advent of the Supreme Court
of Canada that year, the Privy Councils role vis–vis Canada was abolished, though it
still remains the final court for many former British colonies.
113 St. Catherines, supra note 110 at 54.
114 This debilitating view of Aboriginal title was later affirmed in Quebec (AG) v Canada
(AG); Re Indian Lands (1920), [1921] 1 AC 401, 56 DLR 373 (PC) (also known as the
Star Chrome case).
115 Johnson, supra note 21 at 574.
116 Calder v British Columbia (AG), [1973] SCR 313, 34 DLR (3d) 145.
117 See Johnson, supra note 21.
INDIGENOUS RIGHTS IN A NORTH AMERICAN CONSTITUTIONAL CONTEXT 631
In Calder, the Supreme Court of Canada overruled St. Catherines when it
held that Aboriginal title, based on prior occupation by Aboriginal peoples,
existed at common law and not because of the Royal Proclamation of
1763. Shortly after this decision, the federal government implemented its
comprehensive land claim process to deal with Aboriginal peoples claims
to lands that had not been ceded by treaty.118
Regardless of Calder and the ensuing land claims commission, Cana-
das one hundred and fifty years of legal and moral tardiness has had
devastating effects on Aboriginal peoples.119 As will be discussed below, in
Part IV, most of the post-Calder judicial decisions suffer from the residual
effects of the centuries-old colonial mindsets that doggedly cling to inter-
preters of the law today. In this vein, Professor Brian Slattery discussed
what he calls the Imperial Model, which has had a remarkable influ-
ence on the thinking of lawyers and judges over the past century and a
half. And, in the absence of anything better to replace it, it continues to
provide the tacit matrix for much legal thinking about the Constitu-
tion.120 This is amply illustrated by the overt provincial presence within
reserves, discussed immediately below.121
4. Provinces Versus Bands
Similar to the supremacy clause in the United States, where any state
law that is inconsistent with federal law is inoperative, in Canada, the
paramountcy doctrine renders inoperative any provincial legislation
that displaces or frustrates a federal legislative purpose.122 As already dis-
118 But see Jennifer E Dalton, Aboriginal Title and Self-Government in Canada: What Is
the True Scope of Comprehensive Land Claims Agreements? (2006) 22 Windsor Rev
Legal Soc Issues 29 (there is currently insufficient recognition by the Canadian gov-
ernment of Aboriginal title and self-government as crucial components of comprehen-
sive land claims agreements at 31); Peter H Russell, Indigenous Self-Determination:
Is Canada as Good as It Gets? in Barbara Ann Hocking, ed, Unfinished Constitutional
Business? Rethinking Indigenous Self-Determination (Canberra: Aboriginal Studies
Press, 2005) 170 (land claims [a]greements reached through … negotiations are heavi-
ly compromisedtoo little autonomy for many on the Aboriginal side, too much for
many in the dominant society at 171).
119 For a good examination of the Calder decision, see Hamar Foster, Heather Raven &
Jeremy Webber, eds, Let Right Be Done: Aboriginal Title, the Calder Case, and the Fu-
ture of Indigenous Rights (Vancouver: University of British Columbia Press, 2007).
120 The Organic Constitution: Aboriginal Peoples and the Evolution of Canada (1996)
34:1 Osgoode Hall LJ 101 at 103 [Slattery, The Organic Constitution] (noting that the
dominant conception of the Canadian constitution emphasizes the influence of Europe-
an legal traditions and fails to acknowledge Aboriginal contributions).
121 Whereas in the United States, the term reservation is used to define Indian lands, in
Canada, reserve, is used.
122 See R v Morris, 2006 SCC 59 at para 89, [2006] 2 SCR 915.
632 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
cussed, by virtue of section 91(24), the federal government has sole juris-
diction over Indians, and Lands reserved for the Indians. Regardless,
just as American states have tried for generations to assume more juris-
dictional control in Indian country, so too have Canadian provinces been
trying to extend their jurisdiction over Aboriginal peoples lands and re-
sources. However, the Canadian provinces have been far more successful,
helped immensely by section 88 of the Indian Act.123
Passed in 1950 with little political fanfare or opposition, section 88
(then section 87) expressly provided for the general application of provin-
cial law to Aboriginals, whether on the reserve or not.124 As parsed by
Kerry Wilkins, section 88 was ostensibly meant, almost certainly, to ad-
dress and acknowledge the widespread sense that provincial measures
should not constrict the exercise of Indians legitimate treaty rights.125
However, its darker intentions were based on the federal governments
belief that the provinces had a role to play in achieving the recognized
long-term goal of assimilation … of the Indian peoples into mainstream
society.126 This also facilitated the child welfare sixties scoop, where an
alarming rate of Aboriginal children were taken from their homes and
communities by provincial authorities and adopted out to non-Aboriginal
parents.127
Section 88 provides that any provincial legislation that merely has an
incidental effect on the federal power, including the powers in section
91(24) of the Constitution Act, 1867, is intra vires. Thus, any provincial
legislation is valid with respect to Aboriginals on reserves so long as its
pith and substance128 is couched within one of the classes of subjects as-
123 Leroy Little Bear co-edited an influential book on section 88, which held some sway in
policy circles in the 1980s: see J Anthony Long & Menno Boldt, in association with
Leroy Little Bear, eds, Governments in Conflict? Provinces and Indian Nations in Can-
ada (Toronto: University of Toronto Press, 1988).
124 For a useful article on the history, effects, and interplay of section 88, see Kent McNeil,
Aboriginal Title and Section 88 of the Indian Act (2000) 34:1 UBC L Rev 159.
125 Still Crazy After All These Years: Section 88 of the Indian Act at Fifty (2000) 38:2 Al-
ta L Rev 458 at 462.
126 Ibid at 463.
127 See generally Patrick Johnston, Native Children and the Child Welfare System (Toron-
to: Canadian Council on Social Development Series in association with James Lorimer
& Company, 1983); Suzanne Fournier & Ernie Crey, Stolen from Our Embrace: The
Abduction of First Nations Children and the Restoration of Aboriginal Communities
(Vancouver: Douglas & McIntyre, 1997).
128 See Cardinal v Alberta (AG), [1974] SCR 695 at 703, 40 DLR (3d) 553.
INDIGENOUS RIGHTS IN A NORTH AMERICAN CONSTITUTIONAL CONTEXT 633
signed to the provinces and not to the set of federal powers.129 For exam-
ple, provincial traffic laws fully apply on any Indian reserve within the
provinces borders because their effect on the federal governments inter-
est in Aboriginal affairs is deemed incidental and of little import.130 How-
ever, things get more complicated when Aboriginal and treaty rights are
involved because they strike at the heart of section 91(24): Indians, and
Lands reserved for the Indians.
After years of judicial back-and-forth on the issue of which provincial
laws applied to Aboriginals and which did not,131 in 1985, the Supreme
Court of Canada finally dug in its heels with Dick v. R, where it distin-
guished between two categories of provincial lawsfirstly, those that
could be applied to Aboriginals (Indians) without disturbing their Indi-
anness and, secondly, those that by their very nature regulated them
qua Indians.132 The first type of provincial law could apply to Aboriginal
people; the second could not. This approach was later reconfigured in Del-
gamuukw v. British Columbia, where Chief Justice Lamer provided an
inconsistent view. First, he held that Aboriginal rights (including treaty
rights) are within the core of Indianness which lies at the heart of s.
91(24) and, therefore, that [p]rovincial governments are prevented from
legislating in relation to [them].133 But he also held that provincial gov-
ernments can infringe upon Aboriginal rights if they meet the justification
test found in R v. Sparrow.134
129 See Four B Manufacturing v United Garment Workers of America (1979), [1980] 1 SCR
1031, 102 DLR (3d) 385 (the provincial labour law legislation did not deal with the sub-
ject matter of Indians and was therefore valid as applied to them).
130 See R v Francis, [1988] 1 SCR 1025, 51 DLR (4th) 418.
131 See e.g. R v Batisse (1978), 19 OR (2d) 145, 84 DLR (3d) 377 (Dist Ct) [cited to OR]
(Treaty No. 9 was … an agreement between the Indians and the federal Government
and … Ontario obtained no legislative rights vis–vis Indians because of the presence of
one of their nominees as a commissioner at 145); R v Kruger and Manuel (1975), 60
DLR (3d) 144, [1975] 5 WWR 167 (BCCA) (provincial laws of general application apply
uniformly throughout a jurisdiction and are thus applicable to Aboriginals); Natural
Parents v Superintendent of Child Welfare (1975), [1976] 2 SCR 751, 60 DLR (3d) 148
(the BC provincial Adoption Act is referentially incorporated and becomes federal legis-
lation, applicable to Aboriginals); R v White (1964), 50 DLR (2d) 613, 52 WWR 193
(BCCA) [cited to DLR] ([l]egislation that abrogates or abridges the hunting rights re-
served to Indians under treaties and agreements … is … legislation in relation to Indi-
ans because it deals with rights peculiar to them at 618).
132 [1985] 2 SCR 309 at 326, 23 DLR (4th) 33.
133 Delgamuukw v British Columbia, [1997] 3 SCR 1010 at para 178, 153 DLR (4th) 193
[cited to SCR].
134 Ibid at paras 165-69. The Sparrow justification test mandates that the government jus-
tify any legislation that infringes on Aboriginal rights that were in existence in 1982: R
634 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
That is where the law stands today in regard to the application of pro-
vincial governments laws on Aboriginal peoples reserves: provinces may
enforce their laws where it is found that the Indianness of Aboriginal
peoples, as determined by the Canadian courts themselves, is not being
inappropriately encroached upon. This judicial determination is focused
not so much on protecting or shielding Aboriginal peoples from wrongful
interference with their affairs by the provinces, but rather on protecting
the integrity of the federal-provincial distribution of powers scheme. This
primary focus on the distribution of powers was made clear in a pair of re-
cent Supreme Court of Canada decisions that dealt with overlapping Abo-
riginal and labour issues.135 The Courts analysis began and ended with a
traditional division of powers analysis, in which it was held that the pri-
mary function of Aboriginal child-welfare agencies related to labour rela-
tions and that these agencies should therefore be regulated by the prov-
inces. Thus, the Court saw no need for an inquiry into the core of Indian-
ness, despite the culturally appropriate nature of the Aboriginal child-
welfare services, the beneficiaries Aboriginal identity, and the existence
of federal funding.
To summarize what has been discussed so far, Indian tribes in the
United States have been, and continue to be, considered domestic de-
pendent nations, politically apart, but still a part of the country as a
whole. Over time, the rights held by Indian tribes have been consistently
chipped away, culminating in 1886, when Congress claimed that it had
plenary power over Indian tribes on the basis that the federal government
needed to provide protection to tribes from the states. Contrastingly, Abo-
riginal peoples in Canada had long been considered, without their con-
sent, to be subjects of Great Britain, and until 1973, any rights that Abo-
riginal peoples may have had existed by the will of the Crown. With the
patriation of Canadas constitution in 1982, Aboriginal peoples were
deemed to be a part of Canadas constitutional landscape with some pro-
tected, Aboriginal-specific rights.
But what rights did Aboriginals enjoy as subjects of the British
Crown? Prior to Calder, they held limited title to the lands of their ances-
tors, and this title depended upon the good will of the Crown.136 In 1929, it
was determined that Aboriginal peoples had no capacity to enter into
v Sparrow, [1990] 1 SCR 1075, 70 DLR (4th) 385 [Sparrow cited to SCR]. It is discussed
in greater detail in Part IV, below.
135 NIL/TU,O Child and Family Services Society v BC Government and Service Employees
Union, 2010 SCC 45, [2010] 2 SCR 696; Communications, Energy and Paperworkers
Union of Canada v Native Child and Family Services of Toronto, 2010 SCC 46, [2010] 2
SCR 737.
136 See Neylon, supra note 106 at 162-63.
INDIGENOUS RIGHTS IN A NORTH AMERICAN CONSTITUTIONAL CONTEXT 635
treaties and that those treaties that were already in existence were void
ab initio.137 Canada could bluntly interfere in internal tribal matters, even
using the law to dismantle complete governance systems that had been in
place for countless centuries.138 To nip Aboriginal peoples land claims in
the bud, federal legislation was passed that prohibited anyone from solic-
iting or receiving money from Indians for claims without express permis-
sion from the superintendent general of Indian affairs.139 Breaking that
law could lead to imprisonment and a fine.140
Thus, with the enactment of the Constitution Act, 1867, Aboriginal
peoples, viewed as subjects but non-citizens of the Crown in Canada, were
held captive by section 91(24). The passage of the Indian Act141 in 1876 on-
ly increased this legislative imprisonment, which endures to the present
day.
137 See R v Syliboy (1928), [1929] 1 DLR 307, 50 CCC 389 (NS Co Ct). Though merely a
case from a Nova Scotia county court concerning fourteen muskrat pelts, it remained
the law on treaties throughout Canada for fifty-six years, finally being overturned by
the Supreme Court of Canada in 1985, with Simon v. R ([1985] 2 SCR 387, 24 DLR
(4th) 390).
138 See Logan v Styres (1959), 20 DLR (2d) 416, 5 CNLC 261 (Ont HC) [Logan cited to
DLR] ([w]hile it might be unjust or unfair under the circumstances for the Parliament
of Canada to interfere with their system of internal Government by hereditary Chiefs, I
am of the opinion that Parliament has [by virtue of section 91(24) of the Constitution
Act, 1867] the authority to provide for the surrender of Reserve land at 424).
139 This legislation arose over concerns after some American lawyers solicited funds from
Oneida, St. Regis, Oka, and Lorette reserves to present a claim against the state of New
York for lands that they claimed belonged to the Iroquois Confederacy. It seems section
149(a) of the Indian Act was subsequently added to prevent indigenous peoples in Can-
ada from using the courts in such a manner. See Treaties and Historical Research Cen-
tre, PRE Group, Indian and Northern Affairs, The Historical Development of the Indian
Act (np: Indian and Northern Affairs, Treaties and Historical Research Center, 1978) at
120.
140 See Indian Act, RSC 1927, c 98, s 141. The legislative text read:
Every person who, without the consent of the Superintendent General
expressed in writing, receives, obtains, solicits or requests from any Indian
any payment or contribution or promise of any payment or contribution for
the purpose of raising a fund or providing money for the prosecution of any
claim which the tribe or band of Indians to which such Indian belongs, or of
which he is a member, has or is represented to have for the recovery of any
claim or money for the said tribe or band, shall be guilty of an offence and li-
able upon summary conviction for each such offence to a penalty not exceed-
ing two hundred dollars and not less than fifty dollars or to imprisonment for
any term not exceeding two months.
141 Indian Act, SC 1876, c 18 [Indian Act 1876].
636 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
II. Darkest Before the Dawn for Tribes in the United States
The Indian Act of 1876 was, and remains, a monolithically injurious
piece of legislation for Indians142 in Canada. It excluded Indians from the
definition of person143 and dictated the who, what, where, when, and
why of being Indian. To this day, it governs virtually every aspect of Indi-
ans lives on reserves. It was a consolidation of previous legislation passed
from 1850 to 1857 that defined who was an Indian; controlled land distri-
bution, land alienation, band membership and status determination, band
governance, and management of funds;144 excluded Aboriginals from gen-
eral exemptions from hunting and fishing regulatory schemes;145 and
called for the total assimilation of Aboriginals into white society.146 Until
the 1960s, Indian Affairs agents, present on most reserves and empow-
ered by the Indian Act, possessed an almost absolute regulatory power
over Aboriginals and were authorized to issue or deny passes that allowed
Aboriginals to leave the reserve, even temporarily.147
However, things were not so rosy for Indian tribes in the United
States during this time either. The theme of Indian policy for the re-
mainder of the nineteenth and first quarter of the twentieth century was
civilization and assimilation,148 a theme that was encapsulated by the
General Allotment Act149 (also known as the Dawes Act). Prior to the pas-
sage of that act, the allotment, or parcelling out, of tribal land was volun-
tary, but in 1887, it became mandatory. Tribal members were assigned a
parcel of land (usually 80 or 160 acres), and any remaining surplus
lands were sold to anyone who could afford them. Between the years 1887
142 It does not apply to Mtis or Inuit, thus the Indian moniker.
143 Indian Act 1876, supra note 141, s 3(12) ([t]he term person means an individual other
than an Indian, unless the context clearly requires another construction).
144 An Act for the better protection of the Lands and Property of the Indians in Lower Cana-
da, 1850 (UK), 13 & 14 Vict, c 42, s 5.
145 An Act to amend the Act prohibiting the hunting and killing of Deer and other game
within this Province, at certain seasons of the year, 1853 (UK), 15 & 16 Vict, c 171; An
Act for the protection of Fisheries in Lower Canada, 1855 (UK), 18 Vic, c 114.
146 An Act to encourage the gradual Civilization of the Indian Tribes in this Province, and
to amend the Laws respecting Indians, 1857 (UK), 20 Vict, c 26. It is commonly referred
to as the Gradual Civilization Act.
147 See Indian and Northern Affairs Canada, The Canadian Indian (Ottawa: Minister of
Supply and Services Canada, 1986) at 86.
148 Nell Jessup Newton et al, eds, Cohens Handbook of Federal Indian Law, 2005 ed
(Newark, NJ: LexisNexis Matthew Bender, 2005) at 77.
149 An act to provide for the allotment of lands in severalty to Indians on the various reser-
vations, and to extend the protection of the laws of the United States and the Territories
over the Indians, and for other purposes, c 119, 1-3, 24 Stat 388 at 388-89 (1887) (cod-
ified as amended at 25 USC 331-33 (1994)).
INDIGENOUS RIGHTS IN A NORTH AMERICAN CONSTITUTIONAL CONTEXT 637
and 1934, 118 reservations had lands that were allotted,150 and by 1920,
nearly 36 million acres had been transferred from communal to individual
ownership.151 By 1934, two-thirds (or 27 million acres) of the land allotted
to Indians had changed hands by sale to non-Indian ownership.152
Indeed, it was a dark time for indigenous peoples in North America.
However, it is at this point, in 1934, that the paths of indigenous peoples in
the United States and Canada began to diverge substantially. This diver-
gence was brought on by a seemingly perfect storm of bold, forward-
thinking bureaucrats, a responsive national leader, and a strong desire to
turn away from failed, antiquated approaches. The end result was the
passage of the Indian Reorganization Act (IRA).153
A. The Indian Reorganization Act
In the 1928 case of R v. Syliboy,154 Aboriginal peoples in Canada were
still seen by the judiciary, at least in Nova Scotia, as descended from
savages and were considered jurisdictional chattel held by the British
Crown by way of previous French possession. Just a few years after that
decision, the United States enacted the IRA. This would prove to be a de-
cisive turn for the nation, which veered away from its failed methods of
dealing with Indian tribes and, in doing so, embarked upon a more re-
spectful path for their mutual relations.155 The IRA was, by all accounts,
150 See US, American Indian Policy Review Commission, Final Report (Washington, DC:
US Government Printing Office, 1977) at 6.
151 See Prucha, Great Father, supra note 25 at 865.
152 See Wilcomb E Washburn, Red Mans Land / White Mans Law: The Past and Present
Status of the American Indian, 2d ed (Norman, Okla: University of Oklahoma Press,
1995) at 145.
153 An act to conserve and develop Indian lands and resources; to extend to Indians the right
to form business and other organizations; to establish a credit system for Indians; to
grant certain rights of home rule to Indians; to provide for vocational education for Indi-
ans; and for other purposes, Pub L No 73-383, 48 Stat 984 (1934) (codified as amended
at 25 USC 461-79 (2006)).
154 Supra note 137 at 313:
[T]he Indians were never regarded as an independent power. A civilized na-
tion first discovering a country of uncivilized people or savages held such
country as its own until such time as by treaty it was transferred to some
other civilized nation. The savages rights of sovereignty even of ownership
were never recognized. Nova Scotia had passed to Great Britain not by gift or
purchase from or even by conquest of the Indians but by treaty with France,
which had acquired it by priority of discovery and ancient possession; and the
Indians passed with it.
155 For a fascinating look at the history behind the IRA as well as the important players
involved in the drafting of the legislation, see Elmer R Rusco, A Fateful Time: The
638 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
one of the most significant single pieces of legislation directly affecting In-
dians ever enacted by the Congress of the United States.156 As Professor
Skibine notes, it represented the first comprehensive attempt at incorpo-
rating Indian tribes as political entities within the legal and political sys-
tem of the United States. The IRA embodied the endorsement of a policy
promoting tribal self-government and a government-to-government rela-
tionship between Indian tribes and the United States.157
With the advent of the IRA, fostered by President Franklin D. Roose-
velts administration, the allotment period officially came to an end, and
tribes were encouraged to adopt their own respective constitutions as well
as corporate charters for economic development. However, because the
process for adopting these documents was often foreign to tribes, as well
as being mainly uniform with little tribal input, there was, from the start,
much tribal resentment.158 As such, the IRA certainly was not perfect, and
it still has its fair share of detractors,159 but at least it was a start. At a
minimum, the IRA recognized and reaffirmed that tribes were still dis-
tinct from the United States body politic.
On the other side of that ever-widening gulf between the treatment of
indigenous peoples in Canada and the United States, the former contin-
ued full steam ahead with its destructive and untenable approach to its
relationship with Aboriginal peoples.160 The glaring distinction between
Background and Legislative History of the Indian Reorganization Act (Reno: University
of Nevada Press, 2000).
156 Tribal Self-Government and the Indian Reorganization Act of 1934, Legislative Com-
ment, (1972) 70:5 Mich L Rev 955 at 955.
157 Alex Tallchief Skibine, Redefining the Status of Indian Tribes Within Our Federal-
ism: Beyond the Dependency Paradigm (2006) 38:4 Conn L Rev 667 at 675.
158 See Dalia Tsuk Mitchell, Architect of Justice: Felix S. Cohen and the Founding of Amer-
ican Legal Pluralism (Ithaca: Cornell University Press, 2007) at 110-11.
159 For an initial discussion of the merits and faults of the IRA, see Robert B Porter,
Strengthening Tribal Sovereignty Through Government Reform: What Are the Is-
sues? (1997) 7:1 Kan JL & Pub Poly 72 at 76-78, 83-85; S Lyman Tyler, A History of
Indian Policy (Washington, DC: United States Department of the Interior, Bureau of
Indian Affairs, 1973) at 131-36; Richmond L Clow, The Indian Reorganization Act and
the Loss of Tribal Sovereignty: Constitutions on the Rosebud and Pine Ridge Reserva-
tions (1987) 7:2 Great Plains Quarterly 125.
160 See e.g. Logan, supra note 138 (where the forcible disruption of Mohawk tribal govern-
ance was upheld); R v Commanda, [1939] 3 DLR 635, 72 CCC 246 (Ont H Ct J) [cited to
DLR] (it does not matter whether Indians have any rights flowing from [a] … treaty or
not. [They] … may be taken away by the [provincial] … [l]egislature without any com-
pensation at 640); R v Smith, [1935] 3 DLR 703, [1935] 2 WWR 433 (Sask CA) [cited to
DLR] (regardless of the existence of a treaty, any Aboriginal right of access to a wildlife
preserve is merely the privilege accorded to all persons to enter the preserve without
carrying fire-arms at 707 [emphasis in original]); Point v Dibblee Construction Co,
INDIGENOUS RIGHTS IN A NORTH AMERICAN CONSTITUTIONAL CONTEXT 639
the old-school and new-school approaches is perfectly embodied by three
bureaucrats working from opposite sides of the borderJohn Collier and
Felix Cohen in the United States, and Duncan Campbell Scott in Canada.
A year after Scott retired from his long-standing position (1913-32) as su-
perintendent general of Indian affairs in Canada, Cohen began (1933-
1947) working in the Solicitors Office of the Department of the Interior
with Collier as the new commissioner of Indian affairs (1933-1945).
Whereas Scott obstinately clung to the abortive, destructive ideologies of
the previous century, Collier and Cohen were both highly progressive
thinkers.
The results of their divergent approaches are plainly evident today
and call deafeningly for comparable, high-level modern bureaucrats to
take the reins in Canada and break away from the failed policies and del-
eterious approaches of the past.
B. John Collier
Coinciding with President Roosevelts New Deal, Collier implemented
the Indian New Deal with the passing of the IRA. Before assuming his
position, Collier had long criticized the American governments approach
to Indian affairs, and in his first departmental annual report, he stated
that [n]o interference with Indian religious life or expression will hereaf-
ter be tolerated. The cultural history of Indians is in all respects to be con-
sidered equal to that of any non-Indian group.161 His hardline approach
did not soften over the years, a fact made plainly evident in his annual
report for 1938, where he laid out the mandate for his department in no
uncertain terms:
Dead is the centuries-old notion that the sooner we eliminated this
doomed race, preferably humanely, the better. No longer can we,
with even the most generous intentions, pour millions of dollars and
vast reservoirs of energy, sympathy, and effort into any unproduc-
tive attempts at some single, artificial permanent solution of the In-
dian problem. No longer can we naively talk of or think of the Indi-
an problem. Our task is to help Indians meet the myriad of com-
plex, interrelated, mutually dependent situations which develop
among them, according to the very best light we can get on those
[1934] OR 142, [1934] 2 DLR 785 (H Ct J) (individual Aboriginal interest in land is a
limited right of occupation and does not include tort actions for recovery of land or for
the removal of trespassers); Sero v Gault (1921), 64 DLR 327, 50 OLR 27 (H Ct J) (the
Aboriginal right of self-government was not constituted at common law).
161 John Collier, Office of Indian Affairs in US, Annual Report of the Secretary of the Inte-
rior for the Fiscal Year Ended June 30 1934 (Washington, DC: United States Govern-
ment Printing Office, 1934) 78 at 90.
640 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
happeningsmuch as we deal with our own perplexities and oppor-
tunities.162
Having a commissioner of Indian affairs like John Collier representing
Indian tribes in the federal government was a bold new direction for the
United States and truly marked the beginning of a new era of Indian-
American relations. Colliers mandate was further emboldened with the
help of Felix Cohen.
C. Felix Cohen
Colliers right-hand man was Felix Cohen, the man credited with be-
ing the key legal designer of the Indian New Deal. Before assuming his
duties at the Department of the Interior, Cohen was a philosopher and
lawyer, having obtained an advanced degree in philosophy from Harvard
and in law from Columbia. Cohen
was a legal realist, [but] he differed from other legal realists in believing that
ethical and policy dimensions provide an external standard against which to
measure legal behavior and also provide a set of policy objectives toward
which the law should strive. He was therefore most associated with the prag-
matic instrumentalist school of legal realism. He was recognized as a leader
in reconstructing legal philosophy to better integrate penetrating thought and
just action.163
He was sympathetic to the concerns of Indian nations in protecting their
natural resources and land base, and he considered the protection of Indi-
an cultures from the majoritys dominance to be a serious ethical concern
for which all Americans were morally responsible.164 In fact, Cohen be-
lieved that
the Indian plays much the same role in our American society that
the Jews played in Germany. Like the miners canary, the Indian
marks the shifts from fresh air to poison gas in our political atmos-
phere; and our treatment of Indians, even more than our treatment
of other minorities, reflects the rise and fall in our democratic
faith.165
162 John Collier, Office of Indian Affairs in US, Annual Report of the Secretary of the In-
terior for the Fiscal Year Ended June 30 1938 (Washington, DC: United States Gov-
ernment Printing Office, 1938) 209 at 209-10.
163 Newton et al, supra note 148 at ix, citing Gerard R Moran, Dedication (1954) 9:1 Rut-
gers L Rev 343.
164 See Stephen M Feldman, Felix S. Cohen and His Jurisprudence: Reflections on Feder-
al Indian Law (1986) 35:2 Buff L Rev 479 at 491, 500-501.
165 Felix S Cohen, The Erosion of Indian Rights, 1950-1953: A Case Study in Bureaucra-
cy (1953) 62:3 Yale LJ 348 at 390.
INDIGENOUS RIGHTS IN A NORTH AMERICAN CONSTITUTIONAL CONTEXT 641
In 1941, Cohen published the Handbook of Federal Indian Law,166
which incorporated more than a century and a half of American Indian
law. As evidenced in the handbook, Cohens legal and ethical beliefs con-
sisted of the view that Indians had certain rights, including those of self-
governance and self-determination: Central to that analysis was the
long-standing tradition that Indian tribes were governments with author-
ity over both their members and their land, rather than being governed by
the state governments that surrounded them.167
When drawing straws for senior officials in Indian affairs in the early
twentieth century, Aboriginal peoples in Canada certainly pulled the
shortest one. They got Duncan Campbell Scott, who was recently hon-
oured with the dubious distinction of being named one of the most con-
temptible Canadians in history, based on his role in the Department of
Indian Affairs.168
D. Duncan Campbell Scott
Apart from his bureaucratic duties as superintendent general of Indi-
an affairs, Scott was also a much-revered poet and prose writer. When he
died in 1947, he was declared the unofficial poet laureate of Canada,169
as well as one of the ancestral voices of the Canadian imagination.170
But as one of his biographers has noted, Scott would have been a signifi-
cant historical figure had he never penned a stanza of poetry,171 due to
his role in Canadian politics. And while in his poetry and prose [h]e took
a romantic interest in native tradition, … living natives were another
matter.172 There is certainly a grim irony to be found in his lyrical mourn-
ing for what he saw as a vanishing culture and the fact that he and his
department were fervently working to hasten its demise. Whereas Collier
and Cohen moved their department away from the stark, earlier policies
of Indian assimilation, Scott ardently stuck to them and has since become
infamous for stating plainly in 1920, [My] object is to continue until there
166 Newton et al, supra note 148.
167 Ibid at ix.
168 See Will Ferguson, Duncan Campbell Scott (1862-1947): The Rhyming Racist, The
Beaver 87:4 (August-September 2007) 37.
169 Duncan Campbell Scott: The Poet and the Indians, 1995, DVD (Toronto: Vtape, 2009).
170 Northrop Frye, Conclusion to a Literary History of Canada in The Bush Garden: Es-
says on Canadian Imagination (Concord, Ont: House of Anansi Press, 1971) 213 at 245.
171 E Brian Titley, A Narrow Vision: Duncan Campbell Scott and the Administration of In-
dian Affairs in Canada (Vancouver: University of British Columbia Press, 1986) at vii.
172 Ronald Wright, Stolen Continents: The Americas Through Indian Eyes Since 1492 (Bos-
ton: Houghton Mifflin, 1992) at 321.
642 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
is not a single Indian in Canada that has not been absorbed into the body
politic and there is no Indian question and no Indian Department.173
While Scott was obviously not successful in his objective of absorbing
all Indians into the folds of Canadian society, neither was the United
States in its similar attempts during its allotment and assimilation era,
as discussed above. But the United States had one last hurrah in this ar-
ea. After Collier and Cohen, the political pendulum eventually swung the
other way with a vengeance in the middle of the twentieth century.
III. Termination and the Indian White Paper
Indigenous peoples in the United States and Canada have survived at-
tempts at forced assimilation, the most pointed of which occurred in the
United States from 1949 to 1968. This period was known as the termina-
tion era, a reference to the federal governments policy of simply termi-
nating the tribes trust relationship with the United States. Comparative-
ly, in Canada, the long-standing assimilationist policies perpetuated by
the Indian Act culminated in 1969 with the Indian White Paper, put forth
by Prime Minister Trudeau and Minister of Indian Affairs Jean Chrtien.
Both assimilative attempts will be looked at below, in the order in which
they occurred.
A. Termination
Soon after the dichotomous ideological split was played out by Collier
and Cohen in the United States and Scott in Canada, the United States
government again exhibited its disturbing multiple personality disorder.
Stemming from a 1949 report by the Commission on Organization of the
Executive Branch of the Government (Hoover Commission),174 there was a
clarion call for the complete integration of Indians into American society.
The policies of the IRA era were by then a bygone notion, and it was be-
lieved not only that total assimilation of Indians would save the United
States much money but that it was also in the best interests of the Indi-
ans themselves.175 The Hoover Commission found that
173 Evidence of DC Scott to the Special Committee of the House of Commons Examining
the Indian Act Amendments of 1920, cited in Treaties and Historical Research Centre,
The Historical Development of the Indian Act (np: PRE Group, Indian and Northern Af-
fairs, 1978) at 114.
174 US, Social Security and Education, Indian Affairs: Letter from the Chairman, Commis-
sion on Organization of the Executive Branch of the Government (HR Doc No 129)
(Washington, DC: US Government Printing Office, 1949). The report did not, however,
support abrupt discontinuation of services.
175 See Ibid.
INDIGENOUS RIGHTS IN A NORTH AMERICAN CONSTITUTIONAL CONTEXT 643
[t]he basis for historic Indian culture has been swept away. Tradi-
tional tribal organization was smashed a generation ago. Americans
of Indian descent who are still thought of as Indian are a handful of
people, not three-tenths of one percent of the total population. As-
similation cannot be prevented. The only questions are: What kind of
assimilation, and how fast?176
In response to these recommendations, in 1953, Congress adopted
House Concurrent Resolution 108,177 which stated that federal services
and other benefits to tribes should be ended at the earliest possible time.
Rather than tribes cultural histories being considered equal to any non-
Indian group in all respects, as Collier and Cohen had advocated, they
were simply to be terminated. Commissioner of Indian Affairs Dillon My-
er insisted that the implementation of termination be a co-operative effort
with tribal leaders, but if that co-operation was found to be lacking, the
Bureau of Indian Affairs (BIA) would forge ahead on its own.178 Ultimate-
ly, approximately 110 tribes lost all relations with the federal govern-
ment.179 A tribe has not been terminated since 1966, and since then, almost
all of them have had federal recognition restored.180 The same year that saw
House Concurrent Resolution 108 also saw Public Law 280,181 which
transferred criminal jurisdiction on Indian reservations to five states.182
To be sure, it was a dark time for Indians in the United States, and it was
not until 1968 that President Lyndon B. Johnson would provide some
much-needed respite.
The underlying rationale for the termination of the trust responsibility
toward Indian tribes has been attributed, by one scholar, to deeply-
embedded Western-based legal principles and ideals,183 such as equality.
An explicit example of this time-worn notion arose in 1983, when John
Roberts (now chief justice of the US Supreme Court) worked in the White
176 Ibid at 54-55.
177 Supra note 67.
178 See Prucha, Great Father, supra note 25 at 1033.
179 See Charles F Wilkinson & Eric R Biggs, The Evolution of the Termination Policy
(1977) 5:1 Am Indian L Rev 139 at 151-52; Michael C Walch, Terminating the Indian
Termination Policy, Note, (1983) 35:6 Stan L Rev 1181 at 1186.
180 See e.g. 25 USC 903-903g (2006) (Menominee tribe); 25 USC 861-861c (2006) (Wy-
andotte, Peoria, and Ottawa tribes); 25 USC 761-68 (2006) (Paiute tribe); 25 USC
566-566h (2006) (Klamath tribe).
181 Supra note 68.
182 California, Minnesota (except the Red Lake Reservation), Nebraska, Oregon (except for
the Warm Springs Reservation), and Wisconsin (except for the Menominee Reserva-
tion).
183 N Bruce Duthu, American Indians and the Law (New York: Penguin Group, 2008) at
141.
644 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
House counsels office for the Reagan administration. Roberts, then twen-
ty-eight years old, was tasked with responding to the proposed congres-
sional policy statement to symbolically repudiate House Concurrent Reso-
lution 108. Roberts wrote in his memo that he was astonished at the trib-
al opposition to the principles protected in a resolution that reads like
motherhood and apple pie.184 Thus, those Western-based legal principles
and ideals that are often destructive of indigenous rights, are alive and
well in the US Supreme Court. Of course, views may change over time,
but considering Roberts Indian law opinions as chief justice of the US
Supreme Court,185 they apparently havent changed much at all.
Notwithstanding Chief Justice Roberts affinity for the apple-pie tasti-
ness of Indian termination, House Concurrent Resolution 108 was ex-
pressly repudiated by Congress in 1988, including any policy of unilateral
184 Memorandum from John G Roberts, Associate White House Counsel, to Fred F Field-
ing, White House Counsel (18 January 1983), Simi Valley, Cal, Ronald Reagan Presi-
dential Library (Indian Policy (3), Box 29, John G Roberts Files).
185 Of the nine Indian law cases Chief Justice John Roberts has ruled on, he has not once
found in favour of tribal interests: see Salazar v Raham Navajo Chapter, 567 US __,
132 S Ct 2181 (2012), Roberts CJ, dissenting [cited to US] (the Government must pay
each tribes contract support costs in full when it has sufficient funds to pay in full any
individual contractors contract support costs, but not enough funds to cover the aggre-
gate amount due every contractor at 1); Match-E-Be-Nash-She-Wish Band of Potta-
watomi Indians v Patchak, 567 US __, 132 S Ct 1877 (2012) (the Quiet Title Act (28
USC 2409a (2006)) did not apply because plaintiff did not assert that he was the right-
ful owner of the land in question, but rather that the federal acquisition of tribal land
taken into trust was unlawful); United States v Jicarilla Apache Nation, 564 US __, 131
S Ct 2313 (2011) (attorney-client privilege entitles the United States to withhold from
an Indian tribe confidential communications between the government and government
attorneys implicating the administration of statutes pertaining to property held in trust
for the tribe); United States v Tohono Oodham Nation, 563 US __, 131 S Ct 1723 (2011)
[cited to US] ([t]wo suits [making] … the same claim [are barred from the Court of Fed-
eral Claims] … if they are based on substantially the same operative facts, regardless of
the relief sought in each suit at 9); United States v Navajo Nation, 556 US 287, 129 S
Ct 1547 (2009) [cited to US] ([i]t is … conceivable, albeit unlikely, that some other rele-
vant statute, though invoked by the Tribe at the outset of litigation, might have gone
unmentioned by the Federal Circuit and unanalyzed by this court at 296; however,
[n]one of the sources of law cited … provide[d a] … sound … basis for its breach-of-trust
lawsuit at 302); Hawaii v Office of Hawaiian Affairs, 556 US 163, 129 S Ct 1436 (2009)
(substantive provisions and whereas clauses of congressional resolution did not strip
state of its authority to alienate ceded lands); Carcieri v Salazar, 555 US 379, 129 S Ct
1058 (2009) (the secretary of the interiors authority under the IRA to take land into
trust for Indians was limited to Indian tribes that were under federal jurisdiction when
the IRA was enacted in 1934); Plains Commerce Bank v Long Family Land & Cattle Co,
554 US 316, 128 S Ct 2709 (2008) (no exception applied to the banks sale of tribal land
to non-Indians, and the bank had not consented to tribal court jurisdiction); Wagnon v
Prairie and Potawatomi Nation, 546 US 95, 126 S Ct 676 (2005) (state tax on a non-
Indian distributor for fuel supplied to a gas station operated by a tribe on reservation
was valid and posed no affront to tribal sovereignty).
INDIGENOUS RIGHTS IN A NORTH AMERICAN CONSTITUTIONAL CONTEXT 645
termination of Federal relations with any Indian nation.186 Regardless of
the value placed on this symbolic act thirty-five years after the fact, the
memory of congressional committees and bureaucrats in Washington
terminating the existence of hundreds of tribes across Indian country
stands as a chilling reminder to Indian peoples that Congress can still
unilaterally decide to extinguish the special status and rights of tribes
without Indian consent.187
B. Self-Determination
However grim that outlook may have been, President Lyndon B.
Johnson began assuaging fears at least as early as 1968, with his congres-
sional message on Indian affairs entitled The Forgotten American.188 In
doing so, he set in motion the concept of Indian self-determination as we
know it today.189 That same year, a dramatic shift in national policy to-
ward Indians190 occurred when Congress prohibited states from gaining
any additional authority over Indian reservations via PL 280.191 President
Nixon built on his predecessors momentum with respect to advocacy of
self-determination for Indian tribes when he said to Congress in 1970 that
[i]t is long past time that the Indian policies of the Federal gov-
ernment began to recognize and build upon the capacities and in-
sights of the Indian people. Both as a matter of justice and as a mat-
ter of enlightened social policy, we must begin to act on the basis of
what the Indians themselves have long been telling us. The time has
come to break decisively with the past and to create the conditions
for a new era in which the Indian future is determined by Indian
acts and Indian decisions.192
186 Tribally Controlled Schools Act of 1988, supra note 67, 5203(f).
187 Getches et al, supra note 72 at 200. Though the United States has recently (as of De-
cember 16, 2010) endorsed the United Nations Declaration on the Rights of Indigenous
Peoples (GA Res 295, UNGAOR, 61st Sess, Supp No 53, UN Doc A/61/53, (2007)), it re-
mains unclear how much effect that non-legally binding political gesture will have on
protecting Indians from termination within the United States.
188 Supra note 18.
189 Rebecca L Robbins, The Forgotten American: A Foundation for Contemporary Ameri-
can Indian Self-Determination (1990) 6:1 Wicazo Sa Rev 27 at 27.
190 Rosebud Sioux Tribe v South Dakota, 900 F (2d) 1164 at 1174 (available on WL Can)
(8th Cir 1990), cert denied, 500 US 915, 1111 S Ct 2009 (1991).
191 See An act to prescribe penalties for certain acts of violence or intimidation, and for other
purposes, Pub L No 90-284, 402, 82 Stat 73 at 79 (1968) (codified as amended at 25
USC 1322 (2006)).
192 Indian Affairs: The Presidents Message to Congress, Weekly Compilation of Presiden-
tial Documents 6:28 (13 July 1970) 894 at 894.
646 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
That year, Congress developed an Indian Business Development Pro-
gram193 to stimulate business and employment and then, in 1974, enacted
both the Indian Financing Act of 1974194 and the Native American Pro-
grams Act of 1974195 in order to bolster Indian commercial opportunities.
Perhaps of most
importance, Congress passed the Indian Self-
Determination and Education Assistance Act in 1975,196 which established
procedures that enabled tribes to negotiate contracts (638 contracts
derived from the name of the law, Public Law 93-638) with various feder-
al agencies to administer their own education and social service programs.
In 1978, the Indian Child and Welfare Act of 1978197 provided Indian fam-
ilies with considerable protection against the removal of their children
from their homes by state courts and agencies. In the 1980s, the Indian
Mineral Development Act of 1982198 allowed tribes to enter into joint-
venture agreements with mineral developers, while the Indian Tribal
Government Tax Status Act of 1982199 extended tax advantages already
enjoyed by the states to tribes. In 1988, the Indian Gaming Regulatory
Act (IGRA)200 confirmed the tribes ability to operate casinos in order to
raise tribal revenue and support economic development.
In 1994, President Clinton issued an executive order that mandated
that all federal agencies interact with tribes on a government-to-
government basis, respectful of the tribes sovereignty.201 In an ensuing
2000 executive order, President Clinton reaffirmed the right of Indian
193 See Indian Financing Act of 1974, Pub L No 93-262, 401-404, 88 Stat 77 at 82-83
(codified as amended at 25 USC 1521-24 (2006)).
194 Supra note 193 (codified as amended at 25 USC 1451-1544 (2006)).
195 Pub L No 93-644, 11, 88 Stat 2291 at 2323-27 (codified as amended at 42 USC 2991-
94 (2006)).
196 Pub L No 93-638, 88 Stat 2203 (1975).
197 Pub L No 95-608, 92 Stat 3069 (codified as amended at 25 USC 1901-63 (2006)).
198 Pub L No 97-382, 96 Stat 1938 (codified as amended at 25 USC 2101-108 (2006)).
199 Pub L No 97-473, 96 Stat 2605 at 2607 (codified as amended in scattered sections of 26
USC).
200 Pub L No 100-497, 102 Stat 2467 (codified as amended at 25 USC 2701-21 (2006)).
The IGRA was enacted on the heels of the Supreme Court decision in California v Cab-
azon Band of Mission Indians, 480 US 202 (1987), 107 S Ct 1083 [Cabazon] (because
California did not prohibit all gambling but rather regulated it, the state was not al-
lowed to enforce its regulations on the tribe). Nine years after Cabazon, the Supreme
Court of Canada held that tribes in Canada could not operate gaming businesses be-
cause they were deemed to be not Aboriginal enough of an activity. That case, R v.
Pamajewon, will be discussed in greater detail below, in Part IV ([1996] 2 SCR 821, 138
DLR (4th) 204 [Pamajewon]).
201 Memorandum from William J Clinton to the Heads of Executive Departments and
Agencies, Government-to-Government Relations with Native American Tribal Gov-
ernments (24 April 1994) in 3 CFR 1007 (1995).
INDIGENOUS RIGHTS IN A NORTH AMERICAN CONSTITUTIONAL CONTEXT 647
tribes to self-government and required federal agencies to work with
tribes to protect their tribal trust resources, and Indian tribal treaty and
other rights.202 In 2009, President Obama issued a memorandum on tribal
consultation, which mandated federal agency heads to submit a detailed
plan of action that their agency would adopt in order to implement Presi-
dent Clintons Executive Order 13175.203 President Obama signed into law
the Tribal Law and Order Act of 2010,204 which among other beneficial
changes, provides tribes with enhanced capabilities to combat reservation
crime and for tribal courts to impose greater fines and criminal sentences.
Most recently, on March 7, 2013, the reauthorization and expansion of the
Violence Against Women Act205 was signed into law, allowing tribal courts
jurisdiction over non-Indians in crimes involving domestic violence. At the
signing ceremony, President Obama stated that [t]ribal governments
have an inherent right to protect their people, and all women deserve the
right to live free from fear.206
In summary, Indian tribes in the United States have made great
strides forward since the ending of the termination era and the advent of
the self-determination era in 1968. Even though their sovereignty is still
limited, their jurisdictional powers are relatively on par with those of the
fifty states. Tribes enjoy sovereign immunity from suit and
[l]ike a U.S. state, tribes are subject to federal law, but operate un-
der their own constitutions, administer their own judicial systems,
and implement self-managed tax and regulatory regimes. Vis–vis
other federal, state and municipal governments, tribes in the current
era of self-determination expect and demand government-to-
government relations, rather than assuming the earlier role of a
[dependent] subject to paternalistic management by non-Indian gov-
ernments.207
202 US, Exec Order No 13175, Consultation and Coordination with Indian Tribal Govern-
ments, 3 CFR 304 (2001).
203 Memorandum from Barack Obama to the Heads of Executive Departments and Agen-
cies, Tribal Consultation (5 November 2009) in 3 CFR 406 (2010).
204 Pub L No 111-211, 124 Stat 2258 at 2261 (codified at 25 USC 2801-15 (Supp 2011)).
205 42 USC 13925-4045d (2006), as amended by Violence Against Women Reauthoriza-
tion Act of 2013 (supra note 22).
206 The President, Remarks by the President and the Vice President at Signing of the Vio-
lence Against Women Act (Address delivered at Washington, DC, 7 March 2013),
online: The White House
207 Stephen Cornell & Joseph P Kalt, American Indian Self-Determination: The Political
Economy of a Successful Policy, Joint Occasional Papers on Native Affairs Working
Paper No 1 (November 2010) at 3, online: Native Nations Institute
648 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Well now turn our attention north, and the clock back, to 1968.
C. The Indian White Paper
It is interesting to note that, in the same year that the United States
was officially wiping its hands clean of its termination-era approach and
opting instead for the encouragement of tribal self-determination, Canada
was jumping head first into assimilationist policies. It did so by way of the
Indian White Paper,208 advocated by Prime Minister Pierre Trudeau and
introduced by his Minister of Indian Affairs (and future Canadian Prime
Minister) Jean Chrtien. Whereas John Roberts, in 1983, was astonished
at Indian resistance to being assimilated into the United States, Trudeau
thought it
inconceivable … that in a given society, one section of the society
have a treaty with the other section of the society. We must all be
equal under the laws and we must not sign treaties amongst our-
selves … We cant recognize aboriginal rights because no society can
be built on historical might-have-beens.209
This dissimilarity in the opinions of Roberts and Trudeau illustrates a
grave, underlying difference, again harking back to the us and them
dichotomy; Roberts was flummoxed as to why Indians did not want to be
Americans while Trudeau saw Aboriginal peoples as already being Cana-
dian.
Much like the United States termination-era policies and Duncan
Campbell Scotts mindset from earlier in the century, Trudeaus Indian
White Paper called for the complete elimination of the Department of In-
dian Affairs and Northern Development, as well as Aboriginal reserves. It
espoused the notion that, instead of the century and a half of maltreat-
ment and dispossession at the hands of the Canadian government, it was
rather the special status that Aboriginal peoples had received that was
the cause of their social and economic dilemmas. Therefore, it was logical-
ly deduced that to remove Aboriginal peoples special status would also
remove the problems that they faced. Federal responsibilities for Indian
affairs would be cauterized, and any previously recognized treaty or Abo-
riginal rights would become legally irrelevant.
208 Minister of Indian Affairs and Northern Development, Statement of the Government of
Canada on Indian Policy, 1969 (Ottawa: Queens Printer, 1969). The irony of the docu-
ments name is not lost on many Aboriginal people.
209 The Right Honourable Pierre Elliot Trudeau, Remarks on Indian Aboriginal and Trea-
ty Rights (delivered at the Aboriginal and Treaty Rights Meeting, Vancouver, 8 August
1969), reprinted in Miller, supra note 33 at 329.
INDIGENOUS RIGHTS IN A NORTH AMERICAN CONSTITUTIONAL CONTEXT 649
Not surprisingly, Aboriginal opposition to the Indian White Paper was
fast and fierce. It raised awareness among Aboriginal peoples of their
shared common backgrounds and living conditions and, in effect, ended
the fragmentation of hundreds of isolated Aboriginal communities, trig-
gering a propagation of pan-Indian organizations.210 Resistance was so fo-
cused, and ultimately so successful, that the Indian White Paper was
permanently abandoned in 1971. Regardless, there are still relatively re-
cent voices that continue to express the desire to assimilate the Aboriginal
peoples of Canada.211 Fortunately for Aboriginal peoples in Canada, this is
not constitutionally permissible.
But is this a question of a bird in the hand being worth two in the
bush? Is it better for indigenous peoples to enjoy more rights without con-
stitutional protection or is it preferable to enjoy fewer, better protected
rights? Notwithstanding the longevity and the benefits of the self-
determination era, the symbolic repudiation of House Concurrent Resolu-
tion 108, and Congresss stated aversion to any policy of unilateral ter-
mination of Federal relations with any Indian nation,212 tribes in the
United States are still technically at the mercy of Congresss claimed ple-
nary power. Conversely, Aboriginal peoples in Canada have their existing
treaty and Aboriginal rights entrenched in section 35 of the Canadian
constitution; it is not possible to terminate them, though as we shall see
below, this end can still be achieved if rights are simply not recognized
from the beginning. This difference between having constitutionally pro-
tected rights in lesser quantities versus greater amounts of rights that are
not constitutionally protected will be discussed in the next section.
210 See Menno Boldt, Surviving as Indians: The Challenge of Self-Government (Toronto:
University of Toronto Press, 1993) at 85-86.
211 See e.g. Tom Flanagan, First Nations? Second Thoughts (Montreal: McGill-Queens
University Press, 2008) at 4-5 (exploring Aboriginal orthodoxy as a point of view shared
by a small but vocal elite that benefits this elite of activists, politicians, administrators,
and entrepreneurs, to the detriment of the majority of Aboriginal people); Melvin H
Smith, Our Home or Native Land: What Governments Aboriginal Policy Is Doing to
Canada (Victoria, BC: Crown Western, 1995) (arguing that policies of large-scale trans-
ferring of land and authority to Aboriginal groups are problematic due to a lack of ac-
countability). See also Cairns, supra note 19 (arrangements that recognize [Canadians]
and give us our own space and simultaneously bind us to each other at 212).
212 25 USC 2501(f) (2006).
650 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
IV. Modern Challenges
A. Canada and the Charter
Since 1982, the rights of Aboriginal peoples recognized and affirmed
by the Canadian government have been inextricably linked to the same
document that serves the general Canadian populacethe Constitution
Act, 1982. When enacted, it introduced fundamental changes to Canadas
constitutional landscape. Perhaps most important was the protection of
individual rights by way of the Canadian Charter of Rights and Free-
doms,213 which created an unprecedented role for courts in the oversight of
the legality of government action.214
Section 35(1) of part II of the Constitution Act, 1982which is not in-
cluded in the Charteris the primary section of the Canadian constitu-
tion dealing with Aboriginal issues. That section reads simply: The exist-
ing aboriginal and treaty rights of the aboriginal peoples of Canada are
hereby recognized and affirmed. Thus, section 35(1) provides for constitu-
tional protection of existing Aboriginal and treaty rights of Aboriginals,
even though the constitution neither defines these rights nor provides an
enumerated list of them. It has fallen to the judiciary to interpret them or
for further clarification to emerge through agreements negotiated by Abo-
riginal peoples and Canadian governments.
The placement of the meat of Aboriginal rights outside the Charter is
considered significant by many. Professor Kent McNeil has opined that it
could suggest that section 35 allows for Aboriginal self-government since
the Charter (sections 1 to 34) is more concerned with individual rights.215
Professor Peter Hogg has argued that excluding section 35 from the Char-
ter has both negative and positive effects. On the positive side, section 35
cannot be limited by section 1216 or the section 33 notwithstanding
213 Part I of the Constitution Act, 1982, supra note 3 [Charter].
214 See Patrick Macklem et al, eds, Canadian Constitutional Law, 4th ed (Toronto: Emond
Montgomery, 2010) at 7.
215 See Aboriginal Governments, supra note 16 at 67.
216 Peter W Hogg, Constitutional Law of Canada, looseleaf (consulted on 10 April 2013),
(Toronto: Carswell, 2007) ch 28 at 46. Section 1 is known as the reasonable limits
clause because it authorizes governments to limit individual Charter rights. When a
government infringes on a protected right, the onus is placed on the Crown to show two
things on a balance of probabilities: first, that the limitation was prescribed by law,
and second, that it is justified in a free and democratic society. In other words, the
government must have a justifiable purpose, and its actions must be proportional to the
desired end. The primary test to determine whether the purpose is demonstrably justi-
fiable in a free and democratic society is known as the Oakes testtaken from R v.
Oakes ([1986] 1 SCR 103, 26 DLR (4th) 200).
INDIGENOUS RIGHTS IN A NORTH AMERICAN CONSTITUTIONAL CONTEXT 651
clause.217 On the negative side, however, section 24, which allows personal
remedies for rights violations, is not available. To make matters worse for
Aboriginal peoples, R v. Sparrow218 limits section 35 in a manner compa-
rable to the section 1 Oakes test,219 which allows reasonable limitations on
rights and freedoms. Aboriginal rights can be infringed if the Canadian
government can justify that infringement: Implicit in [the] constitutional
scheme is the obligation of the legislature to satisfy the test of justifica-
tion. The way in which a legislative objective is to be attained must up-
hold the honour of the Crown and must be in keeping with the unique
contemporary relationship, grounded in history and policy, between the
Crown and Canadas aboriginal peoples.220 Regardless of its placement in
the constitution, Professors F.L. Morton and Rainer Knopff, in their criti-
cisms of Charter case law and emergent judicial discretion, considered
section 35 as if it were part of the Charter. They stated that [s]ection 35
is technically outside of the Charter, but as a declaration of the special
rights of Canadas most salient racial minority rights that are enforcea-
ble in the courtsit has become an important part of the Charter revolu-
tion.221
Finally, Jack Woodward has opined that Canada stands in a distin-
guished position among the nations of the common law world with aborig-
inal populations as the only country with aboriginal rights unconditional-
ly entrenched in the constitution.222 However, he quickly follows this
laudatory statement with an ominous precaution that the constitutional
wording of section 35 has been a source of uncertainty.223
217 Hogg, supra note 216, ch 28 at 46. Section 33 allows the federal Parliament or a provin-
cial legislature to declare a law or part of a law to apply temporarily notwithstanding
the fact that it might violate certain sections of the Charter, thereby preventing judicial
review on these grounds. Such an override of Charter protections must be for a limited
period of timenamely, five years or less.
218 Supra note 134. The Sparrow decision is discussed in further detail below: see infra
notes 239-42 and accompanying text.
219 Hogg, supra note 216, ch 28 at 46.
220 Sparrow, supra note 134 at 1110.
221 The Charter Revolution and the Court Party (Toronto: Broadview Press, 2000) at 42.
222 Native Law, loose-leaf (consulted on 9 November 2012), (Toronto: Carswell, 1994), ch 2
at 26.
223 Ibid. In fact, the extent of section 35 protection was so uncertain that the drafters felt it
necessary to enact subsections 37(1) and 37(2) of the Constitution Act, 1982 and proceed
with the resulting constitutional conferences; see Bryan Schwartz, First Principles, Sec-
ond Thoughts: Aboriginal Peoples, Constitutional Reform and Canadian Statecraft
(Montreal: Institute for Research on Public Policy, 1986) at xv. See also David C
Hawkes, Aboriginal Peoples and Constitutional Reform: What Have We Learned?
(Kingston: Institute of Intergovernmental Relations, 1989) at 3-8. The conferences pro-
652 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Despite these concerns, since 1982, section 35 has been successfully
used by Aboriginal peoples to protect those rights that existed or were
recognized by 1982, namely, logging224 and fishing rights,225 access to
land,226 and the right to the enforcement of treaties.227 There still remains
a major debate, however, over the breadth of the right to self-government,
and for thirty years, the Supreme Court of Canada has treaded guardedly
in this area.228 Lacking the bold mandate and support set forth by the
Roosevelt administration in 1934, there has been no Canadian equivalent
to the American IRA, and the nearsighted, cautious attempts229 made in
duced very little change, however. The March 1983 conference produced a minor
amendment to section 25, entrenching a clause that protected rights and freedoms ac-
quired through land claims from abrogation or derogation by the Charter (section 35(3)
of the Constitution Act, 1982). That same conference also produced a provision that
specified that at least three additional first ministers conferences were to be held in
1984, 1985, and 1987. Those subsequent conferences produced no additional amend-
ments (section 37.1 of the Constitution Act, 1982, which was repealed following the con-
ferences).
224 See e.g. R v Sappier; R v Gray, 2006 SCC 54, [2006] 2 SCR 686.
225 See e.g. Sparrow, supra note 134.
226 See e.g. R v Adams, [1996] 3 SCR 101, 138 DLR (4th) 657; R v Ct, [1996] 3 SCR 139,
138 DLR (4th) 385.
227 See e.g. R v Marshall, [1999] 3 SCR 456, 177 DLR (4th) 513; R v Marshall, [1999] 3
SCR 533, 179 DLR (4th) 193.
228 See Senwung Luk, Confounding Concepts: The Judicial Definition of the Constitution-
al Protection of the Aboriginal Right to Self-Government in Canada (2009-10) 41:1 Ot-
tawa L Rev 101 (applying the Van der Peet in practice results in indeterminacy in the
scope of Aboriginal self-government rights).
229 In 1996, Bill C-79 proposed numerous interim modifications regarding the system of
band governance, bylaw authority, and the regulation of reserve land and resources (An
Act to permit certain modifications in the application of the Indian Act to bands that de-
sire them, 2nd Sess, 35th Parl, 1996-97 (first reading 12 December 1996)). It was op-
posed by Aboriginal peoples because it was seen as a flawed, piecemeal initiative based
on inadequate consultation that ignored the recently completed Royal Commission on
Aboriginal Peoples. The bill was never passed. In 2002, the federal government tried to
overhaul the Indian Act with Bill C-7, known as the First Nations Governance Act (An
Act respecting leadership selection, administration and accountability of Indian bands,
and to make related amendments to other Acts, 2nd Sess, 37th Parl, 2002-2003 (commit-
tee report presented in House of Commons 28 May 2003)). This bill called for bands to
develop both a system by which to choose their leaders and rules concerning how band
money is spent. Contentious to most bands was the fact that they would no longer be
exempt from the Charter. Again, this bill was opposed by Aboriginal peoples and was
never passed. See also Stephen Cornell, Miriam Jorgensen & Joseph P Kalt, The First
Nations Governance Act: Implications of Research Findings from the United States and
Canada, Report to the Office of the British Columbia Regional Vice-Chief Assembly of
First Nations (np: Native Nations Institute for Leadership, Management, and Policy,
2002), online: Native Nations Institute
INDIGENOUS RIGHTS IN A NORTH AMERICAN CONSTITUTIONAL CONTEXT 653
respect of Aboriginal self-government in Canada continue to produce rela-
tively meager advances.230
This disappointing lack of progress, however, is not for want of direc-
tion. At least as far back as 1973, there have been numerous studies, re-
ports, and findings that point in the same, simple directionmore sub-
stantive recognition by Canada of Aboriginal sovereignty means stronger
Aboriginal societies.231 In 1973, the National Indian Brotherhood (NIB) re-
leased its Statement on Economic Development of Indian Communities,232
which called for Aboriginal peoples to be treated on par with the provinces
within the federal system, with transfer and equalization payments deliv-
ered directly to Aboriginal governments to be used at their discretion. In
1976, the NIB went on to release a set of three documents (of which the
first report was a joint effort between NIB and the Department of Indian
Affairs) that called for stronger Indian constitutional and cultural identi-
ty; security from want and full access to options available in Canadian so-
ciety; purposeful lives through education and political equality; and pos-
session of land to the fullest extent possible.233
One year later, the Berger Report234 of 1977 provided a look at the im-
portance of history, land, culture, and self-determination to Aboriginal
peoples. Next, in 1979, Jack Beaver gave his final report (the Beaver Re-
230 The Mikmaq Education Act (SC 1998, c 24) provided for the transfer of jurisdiction over
education, in that certain sections of the Indian Act ceased to apply to the signatory
communities within Nova Scotia. The First Nations Land Management Act (SC 1999, c
24) granted First Nations control over reserve lands and resources, and ended some
ministerial discretion under the Indian Act over land-management decisions on re-
serves. Signatories were required, however, to enact a land code consistent with the act.
Only 20 First Nations communities (out of 614) have ratified land codes in place. The
First Nations Fiscal and Statistical Management Act (SC 2005, c 9) allowed signatories
to opt out of several Indian Act land provisions and allowed for the collection of the
goods and services tax (GST) to help fund First Nation governments. Only 58 of the 614
First Nations are participants, and critics see the act as imposing expensive accounta-
bility guidelines and as an attempt by the federal government to lessen its fiduciary ob-
ligations.
231 For an in-depth look at the ill-fated strategies and recommendations provided over the
years to the Canadian government to develop First Nations societies, see Peter Douglas
Elias, Development of Aboriginal Peoples Communities (North York, Ont: Captus Press,
1991).
232 National Indian Brotherhood, Statement on Economic Development of Indian Com-
munities, Prepared for the Western-Federal-Provincial Conference on Economic Op-
portunities, July 24, 25 and 26, 1973 (Ottawa: The Brotherhood, 1973).
233 National Indian Brotherhood, A Strategy for the Socio-economic Development of Indian
People: National Report (Ottawa: National Indian Brotherhood, 1977).
234 Northern Frontier, Northern Homeland: The Report of the Mackenzie Valley Pipeline In-
quiry (Ottawa: Minister of Supply and Services Canada, 1977).
654 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
port)235 of the National Indian Socio-economic Development Committee to
the NIB and the Department of Indian Affairs and Northern Develop-
ment. His three conclusions were that self-government has to be defined
at the community level; planning must be community-based; and Canada
must provide the necessary elementsaccess to land and natural re-
sources, better access to education, increased capital, and a political dedi-
cation to real development. The Penner Report of 1983 subsequently rec-
ommended that the provinces be removed from any jurisdiction in Aborig-
inal affairs and reiterated that a viable economic base for Aboriginal
communities could only be created under effective Aboriginal control of
governments at the community level.236 This report also blamed the feder-
al government for paying little attention to development strategies identi-
fied by Aboriginal peoples themselves.
Lastly, the Royal Commission on Aboriginal Peoples (RCAP) was es-
tablished in 1991 to address the issues faced by Aboriginal peoples across
the country. The RCAP final report, released in 1996, was over four thou-
sand pages in length and gave 440 recommendations that called for
sweeping changes.237 While a few of these proposed changes (e.g., the In-
dian Health Transfer Policy) somewhat echoed the United States at-
tempts at nurturing tribal self-determination in 1975 (through the Indian
Self-Determination and Education Assistance Act), several others were
markedly Canadian in form and function (e.g., an Aboriginal parliament
and order of government, subject to the Charter). In the sixteen years
since the RCAP report was completed, however, the federal government
235 JW Beaver, To Have What Is Ones Own, Report from the President, National Indian
Socio-economic Development Committee (np: National Indian Socio-economic Develop-
ment Committee, 1979).
236 Special Committee on Indian Self-Government, Indian Self-Government in Canada (Ot-
tawa: Queens Printer, 1983) (Chair: Keith Penner).
237 Canada, Report of the Royal Commission on Aboriginal Peoples (Ottawa: Supply and
Services Canada, 1996). Some of the major recommendations included a new royal proc-
lamation stating Canadas commitment to a new relationship, treaty process, and
recognition of Aboriginal nations and governments; the recognition of an Aboriginal or-
der of government (though subject to the Charter), with authority over matters related
to the welfare of Aboriginal peoples and their territories; the replacement of the federal
Department of Indian Affairs and Northern Development with two departments, one to
implement the new relationship with Aboriginal nations and the other to provide ser-
vices for non-self-governing communities; the creation of an Aboriginal parliament; the
expansion of the Aboriginal land and resource base; the recognition of Mtis self-
government, provision of a Mtis land base, and recognition of Mtis rights to hunt and
fish on Crown land; initiatives to address social, education, health (Indian Health
Transfer Policy), and housing needs; the establishment of an Aboriginal peoples uni-
versity; and the recognition of Aboriginal nations authority over child welfare: see Re-
port of the Royal Commission on Aboriginal Peoples: Renewal; A Twenty-Year Commit-
ment, vol 5 (Ottawa: Supply and Services Canada 1996), appendix A.
INDIGENOUS RIGHTS IN A NORTH AMERICAN CONSTITUTIONAL CONTEXT 655
has not implemented the recommendations, and Aboriginal peoples have
therefore been left with the unhurried approach of the Canadian courts to
defining their constitutional rights as identified in section 35.
As noted by the Alberta Court of Queens Bench, Section 35 … refers
to the protection of [Aboriginal] rights as of April 17, 1982; the insertion of
the word existing [was] … deliberately [inserted] to achieve that re-
sult.238 This take on existing Aboriginal rights was confirmed by the Su-
preme Court in R v. Sparrow, which held that the scope of the section is
restricted to only those rights that were in existence when the Constitu-
tion Act, 1982 came in to effect;239 these rights are unextinguished240 and
any extinguished rights are not revived. One might visualize a frozen lake
with two air holes placed centuries apartthe Canadian government for-
cibly submerged all Aboriginal rights for centuries, and only those rights
that were fortunate enough to make it to the second hole have been rec-
ognized by the government as valid. All others are dead in the water. This
judicial shell game of now you see them now you dont has proven to be
an effective method of denying Aboriginal peoples in Canada their inher-
ent rights, while affording Canadian governments the ability to simulta-
neously profess to the world (and itself) that the rights of Aboriginal peo-
ples living within Canadas borders are secure, entrenched safely within
the nations constitution. Thus, while the constitution does entrench Abo-
riginal rights recognized by the Canadian government, it also effectively
serves as a kind of statute of limitation for claiming those rights, with no
tolling allowed. Where before it was the Crown, now, it is the constitution
that giveth and the constitution that taketh away.
The Court in Sparrow also held that existing Aboriginal rights must
be interpreted flexibly so as to permit their evolution over time.241 Adopt-
ing the expression used by Professor Slattery, the Court held that existing
Aboriginal rights are affirmed in a contemporary form rather than in
their primeval simplicity and vigour.242 This judicial assurance that Abo-
riginal rights must be interpreted in a contemporary form appears, how-
ever, to have been built on an unstable foundation, with the risk of crash-
ing down soon after it was built. The question of how existing Aboriginal
rights are recognized and affirmed by section 35 was addressed only six
238 R v Steinhauer (1985), 63 AR 381, 15 CRR 175 at 180 (QB).
239 Sparrow, supra note 134.
240 Ibid at 1092.
241 Ibid at 1093.
242 Brian Slattery, Understanding Aboriginal Rights (1987) 66:4 Can Bar Rev 727 at 781-
82.
656 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
years after Sparrow, in R v. Van der Peet.243 This decision provided a test,
incorporating ten key components, to succinctly define an Aboriginal right
as an activity [that] must be an element of a practice, custom or tradition
integral to the distinctive culture of the aboriginal group claiming the
right.244
The problem with the Van der Peet test is obvious: it effectively freezes
Aboriginal rightsmooring them to the distant pastwhile tethering
them to 1982. Professor John Borrows aptly summed up the tests inher-
ently faulty nature:
With this test, as promised, Chief Justice Antonio Lamer has
now told us what Aboriginal means. Aboriginal is retrospective. It is
about what was, once upon a time, central to the survival of a com-
munity, not necessarily about what is central, significant, and dis-
tinctive to the survival of these communities today. His test has the
potential to reinforce troubling stereotypes about Indians.245
Indeed, the Van der Peet test mandates that modern (post-1982) rights be
analyzed through a centuries-old lens and triggered only when the mod-
ern-day, non-Aboriginal courts deem an Aboriginal activity Aboriginal
enough.
A year after Van der Peet, the Supreme Court of Canada deepened the
constitutional hole in which Aboriginal peoples in Canada suddenly found
themselves when it handed down the R v. Pamajewon decision.246 Pa-
majewon was the first time that the Aboriginal right of self-government
was asserted, but by following the recently established Van der Peet
framework, a terrible outcome for Aboriginals was already written on the
wall.
The case involved casinos and gaming on reserves. Because the Abo-
riginal appellants could not show, as required by Van der Peet, that gam-
ing was an element of a practice, custom or tradition integral to the dis-
tinctive culture of the aboriginal group, they could not own or operate ca-
sinos on reserves. As Professor Bradford Morse observed, The [Pa-
majewon] Court has articulated legal standards replete with subjective
243 [1996] 2 SCR 507, 137 DLR (4th) 289 [Van der Peet cited to SCR]. This is the first of
three cases now known as the Van der Peet trilogy, which also includes R v. N.T.C.
Smokehouse Ltd. ([1996] 2 SCR 672, 137 DLR (4th) 528) and R v. Gladstone ([1996] 2
SCR 721, 137 DLR (4th) 648).
244 Van der Peet, supra note 243 at para 46.
245 Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto
Press, 2002) at 60.
246 Supra note 200.
INDIGENOUS RIGHTS IN A NORTH AMERICAN CONSTITUTIONAL CONTEXT 657
elements, lacking in clear enduring principles to guide the effort, and
based upon a museum-diorama vision of aboriginal rights.247
Pamajewons American sister case, California v. Cabazon Band of
Mission Indians,248 provides an illuminating snapshot comparison. Abo-
riginal litigants in Canada, in 1996, could not legally operate gaming facil-
ities on reserves because they could not prove to the outsider Canadian
court that the act of gaming was culturally distinctive at the time of con-
tact. Yet Indian tribes in the United States, in 1987, were recognized as
having the ability to do so because, returning to the year 1832 and the
Worcester v. Georgia decision, state laws had no force in Indian country.
Therefore, the constitutional protection of Aboriginal rights in Canada via
section 35 can be rendered quite impotent because the determination of
what is Aboriginal and what is not is subject to contemporary prejudic-
es, biases, and misconceptions of Canadian judges. This takes from Abo-
riginal peoples the right to identify who and what they and their societies
areand, much more importantly, what they want them to be in the fu-
turethat is the core of self-determination.
Unlike section 35, section 25 of the Constitution Act, 1982249 is part of
the Charterand was placed there to ensure that the Charter shall not
be construed so as to abrogate or derogate from any aboriginal, treaty or
other rights or freedoms that pertain to the aboriginal peoples of Canada.
According to Roger Tass, the deputy minister of justice at the time of the
adoption of the Charter, section 25 was designed as an interpretation
clause that comes as a rule of construction for the charter in its applica-
tion to the rights of aboriginal peoples.250 Its placement was a direct re-
sponse to the opposition of many Aboriginal groups to the idea of a consti-
247 Bradford W Morse, Permafrost Rights: Aboriginal Self-Government and the Supreme
Court in R. v. Pamajewon, Case Comment (1997) 42:4 McGill LJ 1011 at 1030. This ar-
ticle provides a helpful comparison of Indian gaming in Canada and the United States,
as well as a much more in-depth look at the troubling Pamajewon decision.
248 Cabazon, supra note 200.
249 Charter, supra note 213, s 25:
The guarantee in this Charter of certain rights and freedoms shall not
be construed so as to abrogate or derogate from any aboriginal, treaty or oth-
er rights or freedoms that pertain to the aboriginal peoples of Canada includ-
ing
(a) any rights or freedoms that have been recognized by the Royal
Proclamation of October 7, 1763; and
(b) any rights or freedoms that now exist by way of land claims agree-
ments or may be so acquired.
250 Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and
of the House of Commons on the Constitution of Canada, 32nd Parl, 1st Sess, No 49 (30
January 1981) at 93 (Roger Tass).
658 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
tutionally based Charter, stemming from the belief that the Charters fo-
cus on individual rights would threaten Aboriginal and treaty rights.251
Therefore, in theory, section 25 provides a barrier so that the constitu-
tional rights of non-Aboriginal Canadians cannot impinge upon Aborigi-
nal-specific rights. In practical terms, however, since the Charter was in-
troduced, section 25 has never been used as a shield by an Aboriginal
person or tribe. Though courts have had many occasions to address this
function of section 25, not one has yet done so.252
B. The United States and Its Constitution
This part serves more as a placeholder for conceptual symmetry in
this article than as an offering of substantive material. To be sure, tribes
in the United States face modern-day challenges, but these have re-
mained relatively consistent since 1787 and have already been discussed
in detail above. In short, Indian tribes continue to contend with the inces-
sant erosion of early, relatively empowering interpretations of tribal sov-
ereignty and to struggle for self-determination against impinging state
and federal interests.
Conclusion
In summary, indigenous peoples in Canada enjoy significantly fewer
indigenous-specific rights than their counterparts in the United States.
This discrepancy stems from the earliest notions that, while Indian tribes
in the United States were domestic, dependent nations, Aboriginal peo-
ples in Canada were simply subjects of the Crown. Indian tribes in the
United States have maintained inherent rights based on their historical
traditions and culturerights they have possessed from time immemori-
al253 and into present daywhile tribes in Canada, at least until 1973,
maintained rights only insofar as these rights were accorded by the
Crown. Today, this long-embedded view remains the tacit matrix for
much legal thinking about the [Canadian] Constitution.254 Aboriginal
peoples in Canada today, however, continue to counter this nonrecogni-
251 Ibid at 32-33.
252 For an interesting comment on judicial analysis of section 25, see Celeste Hutchinson,
An Analytical Framework for Section 25 of the Charter, Case Comment on R v Kapp,
(2007) 52:1 McGill LJ 173.
253 Worcester, supra note 37 at 558.
254 Slattery, The Organic Constitution, supra note 120 at 103
INDIGENOUS RIGHTS IN A NORTH AMERICAN CONSTITUTIONAL CONTEXT 659
tion and assert their inherent rights through international human rights
standards and norms.255
Despite the somewhat limited nature of tribal governments and their
quasi-American court systems, Indians living on reservations in the Unit-
ed States are at least able to receive protection from their own tribal gov-
ernments and by their own tribal courts, which are empowered by their
own constitutions. In contrast, since 1982, Aboriginal peoples in Canada
have theoretically had the right to self-government, but over thirty years
later, very few governmental structures have materialized:256 there are no
tribal courts and only one Aboriginal-created constitution.257 Moreover,
tribal governments in the United States enjoy sovereign immunity [from
255 See e.g. United Nations Declaration on the Rights of Indigenous Peoples, supra note 187.
On November 12, 2010, Canada endorsed the declaration but did so against the frame-
work of the already existing constitution and laws: see Aboriginal Affairs and Northern
Development Canada, Canadas Statement of Support on the United Nations Declara-
tion on the Rights of Indigenous Peoples (12 November 2010), online: Aboriginal Affairs
and Northern Development Canada
256 The James Bay and Northern Qubec Agreement ((Quebec: diteur officiel du Qubec,
1976) s 26) allows band corporations to possess bylaw powers similar to those of munic-
ipal governments under provincial legislation. The Sechelt Indian Band Self-
Government Act (SC 1986, c 27) grants the Sechelt band the authority to exercise dele-
gated powers and negotiate agreements concerning specific issues. The Yukon First Na-
tions Self-Government Act (SC 1994, c 35) is perhaps the most promising development,
but its mandate is limited by the fact that self-government must be exercised within the
existing Canadian constitutional structure and that the Charter still fully applies to
Aboriginal governments. The Nunavut territory and government, whose population is
eighty-five per cent Inuit, was established in 1999 and has jurisdictional powers and
bodies similar to the Northwest Territories government. The Nisgaa Final Agreement
((27 April 1999), online: Aboriginal Affairs and Northern Development Canada
ernment and that federal and provincial laws apply to the Nisgaa and their lands, but
the final agreement and settlement legislation prevail to the extent of any inconsistency
between them and provisions of any federal or provincial law. Further, if a Nisgaa law
has an incidental impact on an area over which Nisgaa government has no authority
and that law is inconsistent with a federal or provincial law, the federal or provincial
law will prevail to the extent of the inconsistency. Further limitations severely limit the
ability to call the Nisgaa arrangement a true self-government. For a breakdown of the
actual agreement, see Library of Parliament, Parliamentary Information and Research
Service, Law and Government Division, The Nisgaa Final Agreement by Mary C Hur-
ley, PRB 99-2E (24 September 2001), online: Parliament of Canada
257 Namely, the Constitution of the Nisgaa Nation ((October 1998), online: Nisgaa Lisims
Government
256, ss 33-37) but have not yet done so.
660 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
suit] absent a clear waiver by the tribe or congressional abrogation,258
while tribal governments in Canada still answer directly to Aboriginal Af-
fairs and Northern Development Canada259 and enjoy no such fundamen-
tal sovereign right. The rights of Aboriginal peoples in Canada have, how-
ever, been entrenched within the Canadian constitution and would there-
fore no longer be susceptible to an aggressive government looking to legal-
ly and politically extinguish them. Indian tribes in the United States are
still technically vulnerable to such an attack.
Indians in the United States have had several progressive legislators
and high-ranking government officials make bold moves in their favour
and enact policies that were instrumental in creating positive change. Ab-
original peoples in Canada have had to muddle through decade after dec-
ade of middling, indifferent, or sometimes even malicious bureaucrats
who are either too sheepish or too backward-thinking to make any real,
significant improvements. Likewise, the Parliament of Canada has yet to
offer any substantive legislation in the vein and magnitude of a modern
day Indian Reorganization Act, even though numerous sources have
pointed to that type of solution. Rather, decades of piecemeal legislation
have served as only a half-hearted attempt to counter the more odious ef-
fects of the Indian Act, while those laudable governmental voices that
have called for substantial change have been largely ignored.
At the time of the writing of this article, the Canadian government re-
cently (on December 14, 2012) pushed several pieces of legislation through
Parliament including Bill C-45, the Jobs and Growth Act,260 a 457-page
omnibus bill containing (among other disparate legislation) elements of
serious concern to Aboriginal peoples. These concerns, coupled with the
very visible Idle No More indigenous grassroots movement and Atta-
wapiskat First Nation Chief Spences hunger strike (in order to have a
meeting with the prime minister and Governor General), amply illustrate
the high degree of frustration and resentment experienced by Aboriginal
peoples in Canada today. This sense of agitation is further aggravated by
the fact that Aboriginal peoples were not consulted about these profound
legislative changes even though the Supreme Court of Canada has devel-
258 Oklahoma Tax Commission v Citizen Band Potawatomi Indian Tribe of Oklahoma, 498
US 505 at 509, 111 S Ct 905 (1991) [cited to US] (the Tribe did not waive its sovereign
immunity merely by filing an action for injunctive relief at 510).
259 In June 2011, the Government of Canada changed the name of the Department of Indi-
an Affairs and Northern Development (DIAND) to Aboriginal Affairs and Northern De-
velopment Canada (AANDC).
260 SC 2012, c 31.
INDIGENOUS RIGHTS IN A NORTH AMERICAN CONSTITUTIONAL CONTEXT 661
oped a robust duty to consult doctrine.261 The latter requires govern-
ments to consult with First Nations when proposed changes that would
affect them are being considered. Regardless, as stated by Ontario Re-
gional Chief Stan Beardy, [a]t no time in the nine months that Bill C-45
was being considered did the Government of Canada discuss any matters
related to it with First Nationsthis bill breaches Canadas own laws on
the fiduciary legal duty to consult and accommodate First Nations. The
Canadian government just gave birth to a monster.262 Thus, antiquated,
nineteenth-century paternalism still appears to be alive and well in Can-
ada.
By way of Bill C-45, for instance, changes to the Indian Act now allow
First Nations to surrender lands to the Crown even if a mere majority at-
tending a meeting vote to do so; it no longer matters whether or not there
is actually a majority of the electors of the band at such a meeting. The
pertinent section reads: If … the proposed absolute surrender is assented
to at the meeting or referendum by a majority of the electors voting, the
surrender is deemed … to have been assented to by a majority of the elec-
tors of the band.263 To add insult to injury, the minister of Indian affairs
and northern development now also has the authority to call such a band
referendum for the purpose of considering a proposed absolute surren-
der of the bands territory.264 This harkens back to the previously dis-
cussed US Dawes Act, from a hundred and twenty-five years ago, by
which over twenty-seven million acres of lands left tribal control and re-
sulted in patchwork, checkerboard reservations. To exacerbate the land
issue, Bill S-2, the Family Homes on Reserves and Matrimonial Interests
or Rights Act,265 now also allows for the transfer of property rights to non-
Aboriginals on First Nations landseven lands protected under treaties.
261 See Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 SCR
511; Taku River Tlingit First Nation v British Columbia (Project Assessment Director),
2004 SCC 74, [2004] 3 SCR 550; Mikisew Cree First Nation v Canada (Minister of Ca-
nadian Heritage), 2005 SCC 69, [2005] 3 SCR 388.
262 Chiefs of Ontario, News Release, Bill C-45, Jobs and Growth Act Not to Be Recognized
or Enforced by First Nations in Ontario (14 December 2012), online: Chiefs of Ontario
cy went on to say that Aboriginal Senator Patrick Brazeau [who voted in favour of Bill
C-45] is a traitor to all First Nations people in Canada, including the future genera-
tions (ibid).
263 Indian Act, supra note 3, s 39(3).
264 Ibid, s 39(1)(b)(ii).
265 Bill S-2, An Act respecting family homes situated on First Nations reserves and matri-
monial interests or rights in or to structures and lands situated on those reserves, 1st
Sess, 41st Parl, 2011.
662 (2013) 58:3 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
In addition to the Bill C-45 legislation discussed above, other recent
bills have also raised the ire of Aboriginal peoples in Canada: Bill S-6, the
First Nations Elections Act;266 Bill S-8, the Safe Drinking Water for First
Nations Act;267 Bill C-27, the First Nations Financial Transparency Act;268
Bill S-207, An Act to amend the Interpretation Act (non-derogation of abo-
riginal and treaty rights);269 Bill S-212, the First Nations Self-Government
Recognition Act;270 and Bill C-428, the Indian Act Amendment and Re-
placement Act.271 Forcing this slew of laws upon First Nations in Canada
without consultation once again mires the possibility of true government-
to-government relationships in a centuries-old myopia and baldly ignores
the many reports, commissions, and studies that point to the direction
that the United States had already started to take in the mid-1930s.
In conclusion, while the entrenchment of Aboriginal rights in the Ca-
nadian constitution is commendable, Canada would be wise to look to its
southern neighbour for much-needed guidance on the recognition of the
inherent rights of Aboriginal peoples. As shown, governments in the
United States are by no means infallible and have committed many egre-
gious violations of indigenous rights throughout the centuries; compared
to Canada, however, the United States is still many decades ahead. Only
time will tell if governments in Canada will ever catch upor if they even
want to.
266 Bill S-6, An Act respecting the election and term of office of chiefs and councillors of cer-
tain First Nations and the composition of council of those First Nations, 1st Sess, 41st
Parl, 2011-12 (first reading 4 May 2012).
267 Bill S-8, An Act respecting the safety of drinking water on First Nations lands, 1st Sess,
41st Parl, 2011-12 (first reading 19 June 2012).
268 Bill C-27, An Act to enhance the financial accountability and transparency of First Na-
tions, 1st Sess, 41st Parl, 2011-12 (committee report presented in the Senate 7 March
2013).
269 1st Sess, 41st Parl, 2011 (committee report presented in the Senate 28 February 2013).
270 Bill S-212, An Act providing for the recognition of self-governing First Nations of Cana-
da, 1st Sess, 41st Parl, 2011-12 (first reading 1 November 2012).
271 Bill C-428, An Act to amend the Indian Act (publication of by-laws) and to provide for its
replacement, 1st Sess, 41st Parl, 2011-12 (second reading and referral to committee in
House of Commons 5 December 2012).
