Corps de l’article


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 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 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.[11] 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 and we must not sign treaties amongst ourselves.”[20] Clearly, 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 belief 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 bureaucrats’ steadfast refusal to acknowledge Aboriginal peoples’ sovereignty 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 tenacious unwillingness to frame Aboriginal rights broadly (even though it has the ability to do so), still has not demonstrated the hostility and ignorance[21] that its American counterpart has shown in the past three decades, since Oliphant v. Suquamish Indian Tribe.[22] Furthermore, and perhaps most importantly, the bright-line limitation of the federal plenary power under Canada’s constitution is a real advantage not enjoyed by Indians in the United States—and 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 generis[23] 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.

I. Historical Starting Lines: Dissimilar Beginnings

With the birth of the fledgling United States, many Indian tribes[24] 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 territories 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 Americans they would be made to share the same fate.”[28] Further, in 1801, Thomas Jefferson referred to tribes in his first presidential annual message 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, Washington’s claim that Americans were a more “generous people” to Indians 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 British Crown in the Revolutionary War.[31] Many of those same tribes[32] 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 beginnings—September 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. Certainly, seeds planted early in fertile soil produce more desirable crops than those tossed on long-barren ground.

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 affairs 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 reservation 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 affirmed that the constitutional legitimacy to deal with Indians was provided solely to the federal government and that states could no longer interfere 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 regulating 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 imposed on this power, in the confederation, are discarded.”[38] The assumption 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 power to regulate commerce and enter into treaties with Indian tribes. Regardless, that is how the commerce clause has been interpreted since 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 clause[41] is one of only three places in the US Constitution that mention Indians[42] and is by far the most important of the three.[43] It is often referred to as the “foreign commerce clause”, the “interstate 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 Indians, Chief Justice Marshall coupled the commerce clause with the “treaty clause”[44] to provide Congress with “all that is required for the regulation of our intercourse ... with [tribes].”[45] But as noted by Professor Matthew Fletcher, because some Indian tribes had accepted the protection of the United States by way of treaties, Chief Justice Marshall’s supreme court improperly interpreted the word “protection” to mean “dependence”. It was this alleged dependence upon the federal government that supposedly authorized Congress to assume control over all tribes, “as if one tribe’s ‘dependence’ amounted to all tribes’ dependence.”[46]

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 determined[49] that Congress 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 plenary—like 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 history of the American Indian, the Indians’ Dred Scott decision.”[53] It remains a catalyst for much modern academic discourse[54] 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 government with a limited, enumerated list of powers, further refined by the Bill of Rights,[56] and which establishes the authoritative limits of Congress. 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 matters[58] because the commerce clause serves as a bar against state authority when Congress enacts legislation that expressly 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 firmly held in that case that state laws “can have no force”[61] on an Indian reservation without Congress’s 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 ignored Chief Justice Marshall’s Worcester decision and evicted the Cherokees 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 dependent 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 passed by Congress that permit the outright intrusion of state governments into Indian country: House Concurrent Resolution 108[67] 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 authorized five “mandatory states”[69] 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 result, 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 multiplepersonality disorder, has also handed down many decisions that have strongly favoured state over tribal interests.[71] This dilution of the Worcester approach has led to the use of two tests designed to identify and, when warranted, 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 state’s constitution or laws conflict with them. As discussed above, since the regulation of Indian 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] Further, 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 Supreme Court held that states may not infringe “on the right of reservation 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 Marshall’s original Worcester and Cherokee Nation understanding—that state law “can have no force” on “domestic dependent nations”. As such, since those decisions (1832 and 1831, respectively), there has been a three-way jurisdictional tug-of-war among tribal, federal, and state interests, predicated on interpretations of the constitutional framework, yet with consistent acknowledgement of three sovereigns.[78]

Unfortunately for tribes in the United States, their respective sovereignties 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 following section will describe how Canada’s early and enduring view of Aboriginal peoples differed from that of the United States and how this perception led directly to very damaging legislation and judicial interpretations.

B. Canada

1. Preconstitutional Canada

During the first half of the nineteenth century, comparable approaches in dealings with indigenous peoples were taken by American and Canadian courts.[79] Whereas Chief Justice Marshall saw tribes as “domestic dependent nations”,[80] the judiciary in Upper Canada saw them as a “distinct, 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 King’s 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 citizens 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 routinely discussed the notion of Indian lands and the rights of occupancy being protected and respected by the courts until extinguished via legal means.[85]

As discussed below, we shall see that the long delay on Canada’s part in recognizing aspects of inherent, indigenous rights even in part can be directly attributed to the fact that Aboriginal peoples in Canada were considered subjects, though not citizens, until 1960. Contrastingly, Indians in the United States were long considered neither subjects nor American citizens; 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 Canada’s subject-non-citizen approach and the United States’ nonsubject-non-citizen approach is highlighted by two events that occurred only two years apart—in 1868 and 1870. In 1868, the Fourteenth Amendment[86] was ratified as a means for the US Congress to overturn Scott v. Sanford,[87] the vile US Supreme Court decision 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 jurisdiction, they were not afforded citizenship. Simply put, they were not American; they were Indian.

Contrastingly, two years later—in 1870—Justice Dalton held, in R ex rel. Gibb v. White, that “[t]here is a marked difference between the position of Indians in the United States and in this Province. There, the Indian is an alien, not a citizen. ... In [Upper Canada] ... Indians are subjects.”[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 conferred 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 United States v. Nice[94] when it held that Indians remained subject to Congress’ plenary authority even after they became United States citizens. Therefore, 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 man’s land of pseudocitizenship. 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 Washington’s aforementioned social, ideological, and geographical lines of distinction between the two groups were invaluable to tribes in the United States in maintaining their sovereign indigenous status. The benefits enjoyed by tribes in the United States by being “them” were becoming evident, while the damages inflicted upon Aboriginal peoples by being a member of “us” in Canada were quite destructive to their sovereignty, which was never ceded, surrendered, or extinguished. Their inclusion in Canada’s first constitution would only exacerbate the problem.

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 politically 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 diminished, and the United States and Britain had reached an entente in America 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 peoples forcibly became a virtual constitutional footnote in section 91(24), 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] Unlike 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 English Crown and the First Nations.”[104] The court was off the mark by several decades because, in 1830, in light of the reduction in position of Aboriginal peoples from military allies to societal impediments, Britain changed “responsibility for Indian affairs from military to civil authorities.”[105] This signified a decisive change in policy toward Aboriginal peoples 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 Act[107] made no mention of them and made no provision for the Indian Department on the civil list; nor did it budget for the long-standing payment of annuities for Upper Canada treaties.

During the first half of the nineteenth century, there was scant political activism by Aboriginal peoples and perhaps no “pan-Indian” activism of any kind.[108] In ensuing decades, the political and societal clout of Aboriginal peoples in British North America continued to decline, notwithstanding the Métis’ Red River Rebellion of 1869-70 and the ill-fated Northwest Rebellion of 1885, which subsequently led to the Métis leader, Louis Riel, being executed by hanging. Even the eleven treaties[109] signed by the Aboriginal peoples and Canada between 1871 and 1921 were not enough to stave off Aboriginal peoples’ political and societal diminishment. 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. Catherine’s decision[110] that the position of tribes in Canada and their title rights to lands were even considered. As for the outcome regarding Aboriginal peoples’ interests, tellingly, Aboriginal peoples were not even a party in the case. A quick summary is in order.

St. Catherine’s was a federal-provincial dispute over lands within the borders of Ontario. In 1873, a treaty[111] was concluded between the Crown and the “Saulteaux Tribe of the Ojibbeway Indians.” The federal government later claimed that it had retained the right to issue commercial forestry licenses and that it did so to the St. Catherine’s 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 (“Indians” 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 not have the right to issue lumbering permits. The court[112] 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 directly from the Royal Proclamation of 1763.[114]

In some ways, St. Catherine’s was much in line with Chief Justice Marshall’s Johnson v. M’Intosh decision. Just as Indians in the United States maintained only a “right of occupancy”,[115] which could only be extinguished 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” resulted from their original ownership of the land, not on an external, foreign document. Ironically, and certainly a frustrating exercise in logic, the St. Catherine’s court held that the British document that stripped Aboriginal 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) inherent, sovereign powers by virtue of who they are—original possessors of the land—while 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, Canada 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. Catherine’s decision and well into modern times, Canadian society has grown atop this skewed view—a dubious foundation for the nation.

It was not until the Calder[116] decision of 1973 that Canada acknowledged 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] In Calder, the Supreme Court of Canada overruled St. Catherine’s 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, Canada’s 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 interpreters of the law today. In this vein, Professor Brian Slattery discussed what he calls the “Imperial Model”, which “has had a remarkable influence 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 Constitution.”[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 discussed, by virtue of section 91(24), the federal government has sole jurisdiction over “Indians, and Lands reserved for the Indians.” Regardless, just as American states have tried for generations to assume more jurisdictional control in Indian country, so too have Canadian provinces been trying to extend their jurisdiction over Aboriginal peoples’ lands and resources. 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 provincial law to Aboriginals, whether on the reserve or not.[124] As parsed by Kerry Wilkins, section 88 was ostensibly “meant, almost certainly, to address 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 government’s 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 substance[128] is couched within one of the classes of subjects assigned to the provinces and not to the set of federal powers.[129] For example, provincial traffic laws fully apply on any Indian reserve within the province’s borders because their effect on the federal government’s interest in Aboriginal affairs is deemed incidental and of little import.[130] However, 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 distinguished between two categories of provincial laws—firstly, those that could be applied to Aboriginals (Indians) without disturbing their “Indianness” 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 Delgamuukw 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 governments can infringe upon Aboriginal rights if they meet the justification test found in R v. Sparrow.[134]

That is where the law stands today in regard to the application of provincial 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 recent Supreme Court of Canada decisions that dealt with overlapping Aboriginal and labour issues.[135] The Court’s analysis began and ended with a traditional division of powers analysis, in which it was held that the primary function of Aboriginal child-welfare agencies related to labour relations and that these agencies should therefore be regulated by the provinces. Thus, the Court saw no need for an inquiry into the “core of Indianness”, 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 dependent 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, Aboriginal peoples in Canada had long been considered, without their consent, to be subjects of Great Britain, and until 1973, any rights that Aboriginal peoples may have had existed by the will of the Crown. With the patriation of Canada’s constitution in 1982, Aboriginal peoples were deemed to be a part of Canada’s constitutional landscape with some protected, 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 ancestors, 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 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 soliciting or receiving money from Indians for claims without express permission 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 Act[141] in 1876 only increased this legislative imprisonment, which endures to the present day.

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 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]

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 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.

B. 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 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 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.

C. 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 our 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]

D. 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 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 mourning 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 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 area. 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 attempts at forced assimilation, the most pointed of which occurred in the United States from 1949 to 1968. This period was known as the “termination era”, a reference to the federal government’s policy of simply terminating the tribe’s trust relationship with the United States. Comparatively, 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 Chrétien. 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 believed 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 Indians themselves.[175] The Hoover Commission found that

[t]he basis for historic Indian culture has been swept away. Traditional 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. Assimilation 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 Myer 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] Ultimately, approximately 110 tribes lost all relations with the federal government.[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 House counsel’s office for the Reagan administration. Roberts, then twenty-eight years old, was tasked with responding to the proposed congressional policy statement to symbolically repudiate House Concurrent Resolution 108. Roberts wrote in his memo that he was astonished at the tribal 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 haven’t changed much at all.

Notwithstanding Chief Justice Roberts’ affinity for the apple-pie tastiness of Indian termination, House Concurrent Resolution 108 was expressly repudiated by Congress in 1988, including “any policy of unilateral 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 congressional 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 toward Indians”[190] occurred when Congress prohibited states from gaining any additional authority over Indian reservations via PL 280.[191] President Nixon built on his predecessor’s 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 government began to recognize and build upon the capacities and insights of the Indian people. Both as a matter of justice and as a matter 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]

That year, Congress developed an Indian Business Development Program[193] to stimulate business and employment and then, in 1974, enacted both the Indian Financing Act of 1974[194] and the Native American Programs Act of 1974[195] 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 federal agencies to administer their own education and social service programs. In 1978, the Indian Child and Welfare Act of 1978[197] provided Indian families 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 1982[198] allowed tribes to enter into joint-venture agreements with mineral developers, while the Indian Tribal Government Tax Status Act of 1982[199] 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 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 President Clinton’s 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 Act[205] 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 under their own constitutions, administer their own judicial systems, and implement self-managed tax and regulatory regimes. Vis-à-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 governments.[207]

We’ll 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 Chrétien. 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 ourselves ... We can’t 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 Canadian.

Much like the United States’ termination-era policies and Duncan Campbell Scott’s mindset from earlier in the century, Trudeau’s Indian White Paper called for the complete elimination of the Department of Indian Affairs and Northern Development, as well as Aboriginal reserves. It espoused the notion that, instead of the century and a half of maltreatment 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 logically deduced that to remove Aboriginal people’s special status would also remove the problems that they faced. Federal responsibilities for Indian affairs would be cauterized, and any previously recognized treaty or Aboriginal rights would become legally irrelevant.

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, triggering a propagation of pan-Indian organizations.[210] Resistance was so focused, and ultimately so successful, that the Indian White Paper was permanently abandoned in 1971. Regardless, there are still relatively recent 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 constitutional 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 Resolution 108, and Congress’s stated aversion to “any policy of unilateral termination of Federal relations with any Indian nation,”[212] tribes in the United States are still technically at the mercy of Congress’s claimed plenary 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 protected rights in lesser quantities versus greater amounts of rights that are not constitutionally protected will be discussed in the next section.

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 populace—the Constitution Act, 1982. When enacted, it introduced fundamental changes to Canada’s constitutional landscape. Perhaps most important was the protection of individual rights by way of the Canadian Charter of Rights and Freedoms,[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, 1982—which is not included in the Charter—is the primary section of the Canadian constitution dealing with Aboriginal issues. That section reads simply: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” Thus, section 35(1) provides for constitutional 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 Aboriginal 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 Charter has both negative and positive effects. On the positive side, section 35 cannot be limited by section 1[216] or the section 33 notwithstanding 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. Sparrow[218] limits section 35 in a manner comparable 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 justification. The way in which a legislative objective is to be attained must uphold the honour of the Crown and must be in keeping with the unique contemporary relationship, grounded in history and policy, between the Crown and Canada’s aboriginal peoples.”[220] Regardless of its placement in the constitution, Professors F.L. Morton and Rainer Knopff, in their criticisms 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 Canada’s most salient racial minority – rights that are enforceable in the courts—it has become an important part of the Charter revolution.”[221]

Finally, Jack Woodward has opined that “Canada stands in a distinguished position among the nations of the common law world with aboriginal populations as the only country with aboriginal rights unconditionally 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]

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, logging[224] 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 attempts[229] made in respect of Aboriginal self-government in Canada continue to produce relatively meager advances.[230]

This disappointing lack of progress, however, is not for want of direction. At least as far back as 1973, there have been numerous studies, reports, and findings that point in the same, simple direction—more substantive recognition by Canada of Aboriginal sovereignty means stronger Aboriginal societies.[231] In 1973, the National Indian Brotherhood (NIB) released 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 delivered 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 identity; security from want and full access to options available in Canadian society; purposeful lives through education and political equality; and possession of land to the fullest extent possible.[233]

One year later, the Berger Report[234] of 1977 provided a look at the importance of history, land, culture, and self-determination to Aboriginal peoples. Next, in 1979, Jack Beaver gave his final report (the Beaver Report)[235] of the National Indian Socio-economic Development Committee to the NIB and the Department of Indian Affairs and Northern Development. 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 elements—access to land and natural resources, better access to education, increased capital, and a political dedication to real development. The Penner Report of 1983 subsequently recommended that the provinces be removed from any jurisdiction in Aboriginal 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 federal government for paying little attention to development strategies identified by Aboriginal peoples themselves.

Lastly, the Royal Commission on Aboriginal Peoples (RCAP) was established in 1991 to address the issues faced by Aboriginal peoples across the country. The RCAP final report, released in 1996, was over four thousand pages in length and gave 440 recommendations that called for sweeping changes.[237] While a few of these proposed changes (e.g., the Indian Health Transfer Policy) somewhat echoed the United States’ attempts 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 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 Queen’s 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 result.”[238] This take on existing Aboriginal rights was confirmed by the Supreme 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 Constitution Act, 1982 came in to effect;[239] these rights are “unextinguished”[240] and any extinguished rights are not revived. One might visualize a frozen lake with two air holes placed centuries apart—the Canadian government forcibly submerged all Aboriginal rights for centuries, and only those rights that were fortunate enough to make it to the second hole have been recognized by the government as valid. All others are dead in the water. This judicial shell game of “now you see them now you don’t” has proven to be an effective method of denying Aboriginal peoples in Canada their inherent rights, while affording Canadian governments the ability to simultaneously profess to the world (and itself) that the rights of Aboriginal peoples living within Canada’s borders are secure, entrenched safely within the nation’s constitution. Thus, while the constitution does entrench Aboriginal 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] Adopting 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 Aboriginal rights must be interpreted in a contemporary form appears, however, to have been built on an unstable foundation, with the risk of crashing down soon after it was built. The question of how existing Aboriginal rights are recognized and affirmed by section 35 was addressed only six 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 rights—mooring them to the distant past—while tethering them to 1982. Professor John Borrows aptly summed up the test’s inherently 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 community, not necessarily about what is central, significant, and distinctive 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 modern-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] Pamajewon 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 Aboriginal appellants could not show, as required by Van der Peet, that gaming was “an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group,” they could not own or operate casinos on reserves. As Professor Bradford Morse observed, “The [Pamajewon] Court has articulated legal standards replete with subjective elements, lacking in clear enduring principles to guide the effort, and based upon a museum-diorama vision of aboriginal rights.”[247]

Pamajewon’s American sister case, California v. Cabazon Band of Mission Indians,[248] provides an illuminating snapshot comparison. Aboriginal litigants in Canada, in 1996, could not legally operate gaming facilities on reserves because they could not prove to the outsider Canadian court that the act of gaming was culturally distinctive at the time of contact. 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 prejudices, biases, and misconceptions of Canadian judges. This takes from Aboriginal peoples the right to identify who and what they and their societies are—and, much more importantly, what they want them to be in the future—that is the core of self-determination.

Unlike section 35, section 25 of the Constitution Act, 1982[249] is part of the Charter—and 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 Tassé, 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 application to the rights of aboriginal peoples.”[250] Its placement was a direct response to the opposition of many Aboriginal groups to the idea of a constitutionally based Charter, stemming from the belief that the Charter’s focus on individual rights would threaten Aboriginal and treaty rights.[251] Therefore, in theory, section 25 provides a barrier so that the constitutional rights of non-Aboriginal Canadians cannot impinge upon Aboriginal-specific rights. In practical terms, however, since the Charter was introduced, 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 remained relatively consistent since 1787 and have already been discussed in detail above. In short, Indian tribes continue to contend with the incessant erosion of early, relatively empowering interpretations of tribal sovereignty and to struggle for self-determination against impinging state and federal interests.


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 peoples in Canada were simply subjects of the Crown. Indian tribes in the United States have maintained inherent rights based on their historical traditions and culture—rights they have possessed “from time immemorial”[253] and into present day—while 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 nonrecognition 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 United States are at least able to receive protection from their own tribal governments 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 suit] absent a clear waiver by the tribe or congressional abrogation,”[258] while tribal governments in Canada still answer directly to Aboriginal Affairs and Northern Development Canada[259] and enjoy no such fundamental sovereign right. The rights of Aboriginal peoples in Canada have, however, been entrenched within the Canadian constitution and would therefore no longer be susceptible to an aggressive government looking to legally 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. Aboriginal peoples in Canada have had to muddle through decade after decade 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 effects 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 recently (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 Attawapiskat First Nation Chief Spence’s 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 developed a robust “duty to consult” doctrine.[261] The latter requires governments to consult with First Nations when proposed changes that would affect them are being considered. Regardless, as stated by Ontario Regional 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 Nations—this bill breaches Canada’s 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 Canada.

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 attending 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 electors 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 surrender” of the band’s territory.[264] This harkens back to the previously discussed US Dawes Act, from a hundred and twenty-five years ago, by which over twenty-seven million acres of lands left tribal control and resulted 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 lands—even lands protected under treaties.

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 aboriginal and treaty rights);[269] Bill S-212, the First Nations Self-Government Recognition Act;[270] and Bill C-428, the Indian Act Amendment and Replacement 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 Canadian 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 egregious 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 up—or if they even want to.