Two roads diverged: a comparative analysis of indigenous rights in a North American constitutional context.

• Author: Vicaire, Peter Scott
• Position: II. Darkest Before the Dawn for Tribes in the United States through Conclusion, with footnotes, p. 636-662

2. 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 Indians (142) in Canada. It excluded Indians from the definition of "person" (143) and dictated the who, what, where, when, and why of being Indian. To this day, it governs virtually every aspect of Indians' lives on reserves. It was a consolidation of previous legislation passed from 1850 to 1857 that defined who was an Indian; controlled land distribution, land alienation, band membership and status determination, band governance, and management of funds; (144) excluded Aboriginals from general 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 empowered 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 remainder of the nineteenth and first quarter of the twentieth century was 'civilization and assimilation'," (148) a theme that was encapsulated by the General Allotment Act (149) (also known as the Dawes Act). Prior to the passage of that act, the allotment, or parcelling out, of tribal land was voluntary, 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 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 divergence 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)

   1. 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 decisive turn for the nation, which veered away from its failed methods of dealing with Indian tribes and, in doing so, embarked upon a more respectful path for their mutual relations. (155) The IRA "was, by all accounts, one of the most significant single pieces of legislation directly affecting Indians ever enacted by the Congress of the United States." (156) As Professor Skibine notes, it "represented the first comprehensive attempt at incorporating Indian tribes as political entities within the legal and political system of the United States. The IRA embodied the endorsement of a policy promoting tribal self-government and a government-to-government relationship between Indian tribes and the United States." (157)

      With the advent of the IRA, fostered by President Franklin D. Roosevelt's 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 distinct 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 continued full steam ahead with its destructive and untenable approach to its relationship with Aboriginal peoples. (160) The glaring distinction between the old-school and new-school approaches is perfectly embodied by three bureaucrats working from opposite sides of the border--John 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 superintendent general of Indian affairs in Canada, Cohen began (1933-1947) working in the Solicitor's 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 deleterious approaches of the past.

   2. John Collier

      Coinciding with President Roosevelt's New Deal, Collier implemented the "Indian New Deal" with the passing of the IRA. Before assuming his position, Collier had long criticized the American government's approach to Indian affairs, and in his first departmental annual report, he stated that "[n]o interference with Indian religious life or expression will hereafter be tolerated. The cultural history of Indians is in all respects to be considered equal to that of any non-Indian group." (161) His hardline approach did hot 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 unproductive attempts at some single, artificial permanent solution of the Indian problem. No longer can we naively talk of or think of the "Indian problem." Our task is to help Indians meet the myriad of complex, interrelated, mutually dependent situations which develop among them, according to the very best light we can get on those happenings--much as we deal with our own perplexities and opportunities. (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. Collier's mandate was further emboldened with the help of Felix Cohen.

   3. Felix Cohen

      Collier's right-hand man was Felix Cohen, the man credited with being 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 pragmatic 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 Indian cultures from the majority's dominance to be a serious ethical concern for which all Americans were morally responsible. (164) In fact, Cohen believed that

      the Indian plays much the same role in our American society, that the Jews played in Germany. Like the miner's canary, the Indian marks the shifts from fresh air to poison gas in our political atmosphere; and our treatment of Indians, even more than out treatment of other minorities, reflects the rise and fall in our democratic faith. (165) 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, Cohen's legal and ethical beliefs consisted 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 authority 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 "honoured" with the dubious distinction of being named one of the "most contemptible Canadians" in history, based on his role in the Department of Indian Affairs. (168)

   4. Duncan Campbell Scott

      Apart from his bureaucratic duties as superintendent general of Indian 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 significant historical figure had he...