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

AuthorVicaire, Peter Scott
PositionIntroduction through I. Historical Starting Lines: Dissimilar Beginnings, p. 607-635

Fuelled by contrasting political backdrops, indigenous tribes on opposite sides of what has become the Canadian-American border have travelled upon very different trajectories, receiving dissimilar treatment from the respective governments that have laid claim to their lands.

Indian tribes in the United States have sometimes 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 generally had to muddle through decade after decade of middling, indifferent, or occasionally even malicious bureaucrats who have continued to be too sheepish or backward-thinking to make any significant improvements. Further, the Canadian Parliament 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, substantial change have been largely ignored.

Alimentees par des contextes politiques divergents, les tribus autochtones de part et d'autre de la frontiere canado-americaine ont parcouru des trajectoires assez differentes, faisant l'objet de traitements dissimilaires de la part de leur gouvernement respectif ayant revendique leurs terres.

Les tribus amerindiennes aux Etats-Unis ont pu quelquefois profiter de la collaboration de legislateurs et de responsables gouvernementaux progressistes qui ont promulgue des lois et des politiques courageuses ayant contribue a l'avenement de changements positifs. A l'inverse, les peuples autochtones du Canada ont generalement eu a se debrouiller seuls, decennie apres decennie, devant des bureaucrates mediocres, indifferents, ou parfois meme malveillants et trop penauds ou regressifs pour apporter des ameliorations significatives. En outre, le Parlement canadien n'a toujours pas propose de legislation substantielle dans la meme veine et ampleur des textes americains, et ce meme a la lumiere de nombreuses sources independantes favorisant une telle approche. Plutot, des decennies de mesures legislatives fragmentaires n'ont servi que de timide tentative pour contrer les effets les plus odieux de l'archaique Loi sur les Indiens, alors que les voix gouvernementales louables, ayant fait appel a d'importantes et d'audacieuses ameliorations, ont ete largement iguorees.

Introduction I. Historical Starting Lines: Dissimilar Beginnings A. United States 1. Preconstitutional United States 2. Postconstitutional United States 3. States Versus Tribes B. Canada 1. Preconstitutional Canada 2. Subjects and Non-citizens Versus Nonsubjects and Non-citizens 3. Postconstitutional Canada 4. Provinces Versus Bands II. 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 III. 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 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 Indian 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 concerns of Indian (3) tribes over this transfer of power, King George III issued the Royal Proclamation of 1768, 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 III's 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 proclamation 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 Indian 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 William 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 assembled." (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 Niagara, 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 momentous gathering; their seven generations would be propelled on very different 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 analysis of the differing levels of recognition and denial of the inherent rights of indigenous peoples in North America by way of the Canadian and American constitutions, as well as the ensuing judicial and bureaucratic interpretations 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." Though the overarching power over indigenous collectives in North America ultimately exists because of military might and police force, the legal authority presumed to have been established is maintained by way of these constitutions--and often disfigured by slanted judicial interpretations or lack of access to the courts established by the newcomers. (12)

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 dealings 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 documents (15) have increasingly bound Aboriginal peoples to Canadian society to the detriment of their own distinct sovereignties. Aboriginal 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)

Contrastingly, it will be shown how the United States' claim of federal plenary power over Indian tribes (rather than Canada's 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 President Lyndon B. Johnson stated in 1968, to "affirm the right of the first Americans to remain Indians while exercising their rights as Americans." (18) It was around the same time as President Johnson made this distinction 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...

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