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We All Belong: Indigenous Laws for Making and Maintaining Relations Against the Sovereignty of the State
by
Amar Bhatia
A thesis submitted in conformity with the requirements for the degree of Doctor of Juridical Science
Faculty of Law University of Toronto
© Copyright by Amar Bhatia 2018
ii
We All Belong: Indigenous Laws for Making and Maintaining
Relations Against the Sovereignty of the State
Amar Bhatia
Doctor of Juridical Science
Faculty of Law University of Toronto
2018
Abstract
This dissertation proposes re-asserting Indigenous legal authority over immigration in the face of
state sovereignty and ongoing colonialism.
Chapter One examines the wider complex of Indigenous laws and legal traditions and their
relationship to matters of “peopling” and making and maintaining relations with the land and
those living on it.
Chapter Two shows how the state came to displace the wealth of Indigenous legal relations
described in Chapter One. I mainly focus here on the use of the historical treaties and the Indian
Act to consolidate Canadian sovereignty at the direct expense of Indigenous laws and self-
determination. Conventional notions of state sovereignty inevitably interrupt the revitalization of
Indigenous modes of making and maintaining relations through treaties and adoption.
Chapter Three brings the initial discussion about Indigenous laws and treaties together with my
examination of Canadian sovereignty and its effect on Indigenous jurisdiction over peopling. I
review the case of a Treaty One First Nation’s customary adoption of a precarious status migrant
and the related attempt to prevent her removal from Canada on this basis. While this attempt was
iii
unsuccessful, I argue that an alternative approach to treaties informed by Indigenous laws would
have recognized the staying power of Indigenous adoption. Notwithstanding current Canadian
immigration law, this staying power would further the goals of Indigenous self-determination,
decolonization, and Canadian reconciliation.
The Conclusion reviews the preceding arguments and contends that state sovereignty remains a
significant, but not insurmountable, barrier to Indigenous self-determination and Canadian
reconciliation. Grudging legal developments and heightened societal expectations require
genuine, substantive reconciliation efforts. It seems only a matter of time before Indigenous
rights to extend membership and status to foreign nationals are recognized again. This
dissertation makes the original contribution that the best way of doing so would be through the
renewal of treaty relations informed by resurgent Indigenous laws and legal traditions.
iv
Acknowledgments
I have left the most important part of this dissertation too late and to the very end!
In terms of partially situating my scholarship, first and foremost, I am a Canadian citizen born in
Ottawa to parents who immigrated to Canada from India and the Philippines. I am neither
Indigenous nor do I live with precarious immigration status. Although I have been privileged
with opportunities to read and learn about Indigenous laws and legal traditions, I am obviously
no expert and am only beginning to understand these laws in conjunction with my greater
familiarity with the Canadian state’s Aboriginal, immigration & refugee, labour & employment,
and property laws. For example, I only learned much later in life that my birthplace, Ottawa, sits
on unceded Algonquin territory. I also later learned that the name of the place where I live and
work, Toronto, is derived from Tkaronto, which is a Mohawk or Kanienkehaka word (one of the
languages of the Six Nations that make up the Haudenosaunee Confederacy). Toronto and the
surrounding territories are also the traditional, treaty and current homes of the Wendat people,
the Seneca Nation, the Anishinaabe people, and the Metis, with the Six Nations, the
Mississaugas of New Credit and the Williams Treaty First Nations continuing to hold and assert
their sovereignty, rights, title and treaties (Two Row, Dish with Spoon, Niagara) to this day.
This personal history and the formal and political education that I’ve received over the years
have all brought me to the questions about making and maintaining relations explored in this
dissertation. As seen below, a lot of personal relationships have been made along the way.
First, I would like to thank Professor White for chairing my FOE and Professor Nedelsky for
serving as the internal external (and raising important questions about legitimacy in decision-
making that I will carry into the publication stage).
I would also like to thank the members of my supervising committee, Professor Rittich and
Professor Maracle, for all of your encouragement over the long years of this dissertation.
Professor Rittich: thank you again for supervising my LLM thesis and giving me the confidence
to continue on with the SJD (even if I did not work quickly, I know the result here is much
clearer from your efforts!). Thank you also for teaching, employing, and mentoring me over the
years, including introducing me to a community of critical international law scholars (who
you’ve guided in Toronto and beyond) that refuses to stop organizing things. Professor Maracle:
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thank you for teaching me in and out of your classes, for reading my scholarly and creative work,
and for mentoring my friends and me to think and act on the issues raised and repeated by
colonialism. Even though I know you’ve said in response to the question, “how can we help?”
that you “don’t know what we’re good at”, thanks again for your firm, kind leadership and
laughter that has helped so many of us to see what, in fact, we are good at. Kwas hoy for also
reminding me in the defense that a title is a promise!
I would like to thank my SJD supervisor, Professor Macklin, first for agreeing to supervise this
dissertation so many years ago (originally with Professor Johnston) and then for sticking with me
over all the years! Second, I would not be where I am today (at Osgoode and successfully
defended) without your perceptive criticism and guidance over the most difficult parts of this
dissertation. Thank you for insisting on clarity even as you championed the most innovative parts
of this dissertation. The combination of your scholarly work with deep engagement in refugee
litigation and advocacy is truly inspiring!
I would also like to thank my external examiner, Professor Borrows, for reading, testing and
challenging this dissertation in such a generous way. Your feedback on the need to further
address the potential scale, complexity, contradictions, and constraints of Indigenous authorities
over immigration and re-peopling is well-taken and I will strive to address it in future versions of
this work. As seen below, your work and the work of so many others in the revitalization of
Indigenous laws and wider Indigenous resurgence has been foundational in shaping my approach
to transnational migration in a settler-colonial context. Chi meegwetch also for all of the
inspiring work you’ve done in writing and in person to advance Indigenous law and life in
Toronto, Ontario, Canada, and wider Anishnaabe and Indigenous territories. The amazing
hospitality you’ve shown in welcoming others to these efforts, and the work of decolonization at
Neyashiinigmiing and beyond, exceeds both the English language and Canadian law.
In addition to my supervising and FOE committees, I also have the deepest gratitude for my
unofficial committee of Dawnis Minawaanigogiizhigok Kennedy, Shiri Pasternak, Kim Stanton,
and Sujith Xavier. We’ve seen each other through a lot and I’ve learned so much along the way –
I’m not sure how to thank you for what’s here and for all the other drafts and chapters that
inform this work but that aren’t directly included here. So, instead, I’m just going to say sorry for
all those block quotes and will thank you better in person!
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The wider communities and institutions that have supported, inspired and sustained me and this
work over the years include: the University of Toronto and the SSHRC and their respective
funding; the OJEN; the Catalyst Fellowship at Osgoode Hall; the Toronto Group folks (including
my SJD colleagues at Osgoode and U of T, like Michael, Umut, Amaya, Carolina, Claire,
Patricia (Pagu), Mazen, Irina, Derek, Zoran, Gail, Howie, Rayner, Rommel, Shanthi, Mai,
Charis, Stu, & Igor); the TWAIL network (including fellow Cairo organizers Usha, John, &
Sujith); the Indigenous Sovereignty week organizers & speakers (including Shiri, Dawnis,
Zainab, Crystal, Barb, Tannis, Corvin, Tyler, Ruth, Russ, and in memory of Randy Kapashesit
and Art Manuel); the migrant worker coalition organizers (including Adrian, Anna, Carolina,
Chris, Deena, Evelyn, Fay, Gabriel, Hussan, Jackie, Johnna, Kara, Nav, Senthil, Sonia, Tings, &
Tzazna); the teachers and care workers at our kids’ daycares and schools over the years; the
Graduate Program and other faculty at U of T law (including Julia Hall, Carla Serpe, Barbara
Langlois and Professors Dyzenhaus, Brunnée, Prado, Sanderson and Valverde); and my former
teachers and mentors - and now current & new colleagues - at Osgoode Hall (including Angela,
Harry, Sonia, Obi, & Peer; my first-time property law colleagues (Mary Jane, Philip, Stepan, &
Estair); my Aboriginal Intensive Program and Anishinaabe law camp colleagues (including
Andrée & Shin; Dayna, Signa, Deb, Kent, Jeff, Lisa, Lisa, Ben, Lindsay & Heidi); my PCLS
colleagues (especially Sean and Janet); and my dean, Lorne, and the Associate Deans (James,
Poonam, Trevor, Mary), Faculty Association exec. members (Gus, Cynthia, Sara, Janet, Eric),
and other colleagues (Obi, Carys, Doug, Hengameh, Francois, Robert, Ruth & Stephanie)
who’ve all supported me as a junior faculty member)).
As noted above, a lot of personal relationships have been made along the way! Many friends and
family have gotten us through the years, including those in Toronto, Montreal, Ontario, New
York, Vancouver, India, and the Philippines (especially Nancy & Christine; JEM is fantastic;
Tantes Claire & Marie Paule; Melissa, Steve, and the boys; Charn, Neeru, and the kids; the
Manila fam; the Syracuse Bhatias; KDB Uncle & family; and Aunt Nora, Uncle Alec and the
dozens of cousins). However, the most important of these relationships begin and end with my
immediate family.
vii
I started this degree as a son, brother, and a husband. I’m now finishing up with the additional
titles of father and uncle thanks to the children who are the greatest transformers in all of our
lives. To my sister, Ate Maya (Bua!), thanks so much for all of your love and support, and to you
and Ben for bringing Rowan and Fiona into this world for us to spoil.
To my wife, Meghan: This took so much longer than the three years I said it would take! This
dissertation is older than both of our children! After these acknowledgments, I promise I will
never write another word again (at least, I think that’s how this academic thing works…). Thanks
for reading every word in this dissertation, and for reading all of the ones that didn’t end up in
this final, hectic version, too! Literally and figuratively, this would never have gotten done
without you. I’m not sure what nosy strangers might read these words one day, so I’ll just
restrain myself and say thank you for always running ahead of me, for teaching me how to
breathe underwater, for believing I could finish this degree ‘on time’, for pushing me to finish
when I repeatedly didn’t, for carrying me in every way possible, for literally carrying our two
boys, and for teaching all three of us (every day) what love means! I never want this education to
end…
I would like to dedicate this dissertation to my parents (Ramesh and Pilar, now Dadaji and Lola),
to Meg’s parents (Katherine – now Grandma/Mama K – and to the memory of Robert), and to
our children, Kiran and Anil. To Dadaji and Lola: I would not have been able to start and finish
this journey of learning without all of your invaluable support (from your own forced and
voluntary migrations to my accidental birth through to endless learning, a star-crossed wedding
that expanded our family to include Mama K, and (now) all three of you spoiling your tireless
grandchildren). Speaking of which, to Kiran and Anil: I know you love stories and, while this
may not currently compare with Nanabozho and the ducks (or sponge bob), I hope that you read
this or some version of it one day and continue the work to make it part of our shared history.
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Table of Contents
Acknowledgments .......................................................................................................................... iv
Table of Contents ......................................................................................................................... viii
List of Images, Charts, and Figures .................................................................................................x
Introduction ......................................................................................................................................1
Chapter 1 Indigenous Legal Traditions for Making and Maintaining Relations ....................5
1.1 Introduction ..........................................................................................................................5
1.2 Indigenous Laws and Legal Traditions: A Spectrum of Nations and Sources ....................6
1.3 Indigenous Legal Systems for Making and Maintaining Relations ...................................11
1.3.1 Transnational Confederations and Treaties: Mi’kmaw and Blackfoot ..................12
1.3.2 Haudenosaunee Confederacy and Wampum Belt Treaties ....................................15
1.3.3 Anishinaabe Citizenship with the Land .................................................................20
1.3.4 Haudenosaunee and Anishinaabe Adoption and the Incorporation of Strangers ..23
1.4 Indigenous Control of Canadian Affairs ............................................................................30
1.5 Conclusion .........................................................................................................................35
Chapter 2 State Sovereignty and the Domestication of Indigenous Legal Relations ............36
Introduction ...............................................................................................................................36 2
State Sovereignty ......................................................................................................................37 3
3.1 A Working Definition of (State) Sovereignty ....................................................................37
3.2 The Capacity to Enter into International Relations ............................................................39
3.3 Government ........................................................................................................................46
3.4 A Defined Territory and a Permanent Population .............................................................52
3.5 A Precarious Population ....................................................................................................61
Conclusion ................................................................................................................................73 4
ix
Chapter 3 Precarious Migration in an Age of Reconciliation ..................................................74
Introduction ...............................................................................................................................74 5
A Brief Note on the Immigration and Refugee Protection Act .................................................75 6
Sister Juliana Eligwe .................................................................................................................78 7
Canadian Establishment ............................................................................................................81 8
Anishnaabe Adoption ................................................................................................................84 9
State Sovereignty ......................................................................................................................88 10
Treaties, Newcomers, and Land ................................................................................................94 11
Indigenous Mobility and Relations ...........................................................................................96 12
Conclusion ..............................................................................................................................105 13
Chapter 4 Conclusion ................................................................................................................107
Introduction .............................................................................................................................108 14
A Call to All Treaty People .....................................................................................................110 15
Losing Land, Negotiating Reconciliation ...............................................................................116 16
We Are All Here to Stay? .......................................................................................................122 17
Conclusion ..............................................................................................................................126 18
Bibliography ................................................................................................................................127
x
List of Images, Charts, and Figures
1. Coming of the White Faces Wampum Belt 17 2. Two Row (Guswhenta) Wampum Belt 17 3. The Migration of the Anishinabe 27 4. Pre-1975 Treaties and Treaty First Nations in Canada 40 5. Federation of Saskatchewan Indian Nations Treaty Implementation Principles 43 6. Historical Treaties of Canada 55 7. List of Numbered Treaties 63 8. Residential school enrolment, 1869-70 to 1965-66 63 9. Number of immigrants who landed annually in Canada, 1852-2014 63 10. Treaty of Niagara Wampum Belt 111 11. Twenty-Four Nations Wampum Belt 111 12. Settler-Treaty Card 112 13. Certificate of Settler Status 113
1
Introduction
Do Indigenous peoples have the authority to re-people themselves? I argue that they do and that
treaties with Indigenous peoples, and the laws of Indigenous nations, help to explain how and
why this must be the case.
I argue that Indigenous peoples have the ability and authority to fully determine their own
membership, up to and including the admission of non-citizens of Canada into their communities
and onto their lands. Indigenous histories and living legal traditions warrant the acknowledgment
of such authority. Indigenous peoples have always had these abilities and authorities at societal
and familial levels. The most striking examples remain the treaty relationships struck between
different Indigenous peoples and, especially, between Indigenous peoples and imperial and
settler authorities. I reject unilateral state sovereignty in favour of adopting the lens of treaty
relations informed by Indigenous treaty interpretations and laws.
Unilateral treaty interpretations by the state were part and parcel of the dispossession of
Indigenous lands, the displacement of Indigenous peoples, and the re-peopling of these lands by
settlers. Currently, Indigenous peoples in Canada do not have the authority to fully determine
their own membership. Canada’s constitutional, Aboriginal, and immigration laws have since
eclipsed Indigenous sovereignty over the admission of non-members. Like other states, Canada
exercises control over the admission and membership of foreign nationals as an incident of its
sovereign status. As with other white settler-colonial states, Canada also claims a monopoly
power over the make-up of Indigenous peoples and nations. Even where this power has been
delegated to Indigenous peoples, it operates in the shadow of Canadian constitutional jurisdiction
2
over “Indians and lands reserved for Indians” and the state’s fiscal considerations. Currently,
Indigenous peoples lack the ability to extend membership by way of marriage, adoption, or
immigration to those without status under the Indian Act. Subject to significant exceptions,
procreation among parents with status remains the sole state-sanctioned means for transferring
this status.
Despite recent calls from the Supreme Court of Canada and the Truth and Reconciliation
Commission, the resolution of these problems is stymied by the unilateral assertion of
conventional Canadian sovereignty. This sovereignty is especially pronounced in relation to
Aboriginal law and immigration law. The cutting edge of state sovereignty emerges in relation to
jurisdiction over the re-peopling of Indigenous nations. True reconciliation requires the shift
away from a state-based tradition that domesticates Indigenous peoples to the lens of treaty
relations and the understanding that settlers have “a treaty right to be here”. Acknowledging this
fact should lead one to ask what the treaties are and what informs their interpretation. Indigenous
laws and legal systems are the answer to this question. Indigenous laws include sources and
systems for re-peopling their societies and welcoming others through treaty relations and
customary laws of adoption. This dissertation argues for the resurgence of these “peopling
powers” for the sake of Indigenous peoples’ self-determination and sovereignty. This resurgence
may also work towards the benefit of international migrants and foreign nationals, too.
3
Outline of Chapters
This dissertation proposes re-asserting Indigenous peoples' authority over re-peopling themselves
in the face of state sovereignty and ongoing colonialism.
Chapter One examines the wider complex of Indigenous laws and legal traditions and their
relationship to matters of “peopling” and making and maintaining relations with the land and
those living on it. These Indigenous legal systems comprised confederacies, treaty relations, and
citizenship with the land as well as hospitality and the ability to integrate newcomers. They set
down Indigenous legal principles of respect, reciprocity, and renewal meant to inform all treaty
relations, including those that followed with settlers and their governments.
Chapter Two shows how the state came to displace the wealth of Indigenous legal relations
described in Chapter One. First, I examine a brief definition of state sovereignty before turning
to the mechanisms of Canadian law deployed in the attempt to realize that definition on these
lands. These mechanisms include Canadian constitutional law and, especially, Canadian
Aboriginal law. The latter includes interpretation of the historical treaties, the Indian Act, the
common law of Aboriginal title, and the negotiation of modern treaties (among other areas). I
mainly focus here on the use of the historical treaties and the Indian Act to consolidate Canadian
sovereignty at the direct expense of Indigenous laws and self-determination. Conventional
notions of state sovereignty inevitably interrupt the revitalization of Indigenous modes of making
and maintaining relations through treaties and adoption.
4
Chapter Three brings the initial discussion about Indigenous laws and treaties together with my
examination of Canadian sovereignty and its effect on Indigenous jurisdiction over peopling. I
review the case of a Treaty One First Nation’s customary adoption of a precarious status migrant
and the related attempt to prevent her removal from Canada on this basis. While this attempt was
unsuccessful, I argue that an alternative approach to treaties informed by Indigenous laws would
have recognized the staying power of Indigenous adoption. Notwithstanding current Canadian
immigration law, this staying power would further the goals of Indigenous self-determination
and Canadian reconciliation.
The Conclusion reviews the preceding arguments and contends that state sovereignty remains a
significant, but not insurmountable, barrier to Indigenous self-determination and Canadian
reconciliation. These barriers remain in the interpretation of historical treaties, the litigation of
Aboriginal title, and the negotiation of modern treaties and political reconciliation. However,
grudging legal developments and heightened societal expectations will require more genuine,
substantive reconciliation efforts. It seems only a matter of time before Indigenous rights to
extend membership and status to non-citizens of Canada are recognized again. The best way of
doing so would be through a revitalized structure of treaty relations informed by resurgent
Indigenous laws and legal traditions.
5
Chapter 1 Indigenous Legal Traditions for Making and Maintaining Relations
“Through this Commission and through the constitutional discussions I have not yet seen the issue of citizenship addressed front and centre, because that’s in fact what we’re talking about. […]
But, they’ve always been in the interest of the state to have treaties and to have arrangements and agreements. We’ve never had the opportunity to work out our relationship with each other, within families, as individuals, between communities and beyond communities, nation-to-nation.”1
1.1 Introduction
Prior to the advent of colonialism, Indigenous nations always had the authority and ability to
determine their own identity and membership. They also had the related authority and ability to
make and maintain relations with other nations, families, groups, and individuals. The exercise
of these powers was in accordance with Indigenous laws, legal traditions, and legal systems. This
chapter briefly introduces the wide spectrum of these laws, traditions, and legal systems, with an
emphasis on Indigenous modes of making international relations and incorporating others within
their polities. This background is essential to understand before turning to the repression of
Indigenous peoples and their laws that took place in the establishment of state sovereignty.
Canadian assertions of conventional state sovereignty serve as the biggest obstacles to the
contemporary exercise of Indigenous jurisdiction over identity and membership. As seen in the
next chapter, these assertions are most pronounced in Canadian Aboriginal law (which includes
the Indian Act, the interpretation of historical treaties, and the negotiation of modern treaties and
self-government). The final chapter explores a case study at the intersection Anishinaabe
adoption, the Indian Act, and Canadian immigration and refugee law.
1 Canada. Royal Commission on Aboriginal Peoples. Transcripts of Public Hearings and Round Table Discussions, 1992-1993. Presentation by Chief Randy Kapashesit (June 9, 1992) in University of Saskatchewan Archives, Native Law Centre fonds, RCAP Vol. 30 (Box 4), part of Volume 2A (Moosonee) 368-380, online: University of Saskatchewan Archives <http://scaa.sk.ca/ourlegacy/permalink/29378> [Kapashesit].
6
1.2 Indigenous Laws and Legal Traditions: A Spectrum of Nations and Sources
Indigenous laws and legal traditions have existed as long as Indigenous peoples. These legal
systems are defined by their diversity, continuity, repression, survival, and adaptability.2 The
area is the subject of books on the general topic of Indigenous legal traditions in Canada and
beyond, as well as entire dissertations on specific Indigenous legal traditions in Canada.3
Canada’s only law journal focusing on Indigenous laws and peoples was inaugurated in 2002 and
has published over 14 volumes to date. There is also now at least one graphic novel dealing with
Indigenous law (Mikomosis and the Weitiko), specifically Cree law dealing with harm and
conflict through the figure of the Weitiko (Windigo).4 Recent conferences of the bar5 and
academy speak to the growing importance of these areas of law.6 And, most recently, Canada’s
first Indigenous law degree (JID) program has been approved to proceed at the University of
Victoria’s Faculty of Law7 (in part based on the previous Akitsiraq law program including Inuit
law).8
2 See, e.g., Val Napoleon and Hadley Friedland, “Indigenous Legal Traditions: Roots to Renaissance” in Markus D. Dubber and Tatjana Hornie, The Oxford Handbook of Criminal Law (Oxford: Oxford University Press, 2014) at 230-236 [Napoleon & Friedland]; John Borrows, “Tracking Trajectories: Aboriginal Governance as Aboriginal Right” (2005) 38(2) UBC L.R. 285 at 293-296. 3 See John Borrows, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010) [Borrows 2010a] and references therein. See also John Borrows, ed., “Special Issue: Indigenous Laws, Lands and Literature” (2016) 33(1) Windsor Yearbook of Access to Justice 1-219. 4 See, generally, Indigenous Law Research Unit, Resources, online: ILRU Resources <http://www.uvic.ca/law/about/indigenous/indigenouslawresearchunit>. See also Val Napoleon et al., Cree Law: Mikomosis and the Wetiko (Victoria: University of Victoria, 2013), online: UVic Bookstore <https://www.uvicbookstore.ca/general/browse/comix/9780000103147>. 5 See e.g.: Sonia Lawrence and Signa Daum Shanks, "Indigenous Lawyers in Canada: Identity, Professionalization, Law" (2015) 38:2 Dalhousie Law Journal 503-524. 6 For example, see: (2016) 61(4) McGill L.J. and (2016) 33(1) WYAJ. 7 See, e.g., Jeremy Webber, “Studying Law for a Postcolonial World: A Unique, Trans-systemic, Professional Degree Program in Indigenous Legal Orders and the Common Law” in 2013 National Aboriginal Law Conference: Working with and Within Indigenous Legal Traditions (Ottawa, ON: Canadian Bar Association, 2013); Borrows 2010a at 231-232. 8 Borrows 2010a at 228-238 (“Indigenous Legal Education”). For an extended discussion in the global context, see Kerry Sloan, A Global Survey of Indigenous Legal Education and Research. Report prepared for the Indigenous Law Research Unit, Indigenous Bar Association, Truth and Reconciliation Commission of Canada, 2013, online:
7
While the mainstream education system and curricula can both lag and lead in different
respects,9 there has been much recent work by legal scholars at law schools in the areas of
Indigenous law and legal traditions. Written work in English on Indigenous legal traditions is
especially striking given the rarity of published scholarship on state-based Aboriginal law in the
late sixties and early seventies.10 More specifically, this research and writing has been explicit in
recognizing and naming specific Indigenous legal traditions and communities as and where
available and appropriate (e.g. Mohawk nation of the Haudenosaunee Confederacy at the Grand
River). In part, this naming is a function of the wide diversity of Indigenous legal traditions that
span these lands and waters known variously as Great Turtle Island or Canada11.
ILRU < http://indigenousbar.ca/indigenouslaw/wp-content/uploads/2012/12/kls_world_indigenous_legal_education_complete.pdf> at 44-65 (section on Canadian developments). See also Christine Chinkin, Shelly Wright & Hilary Charlesworth, “Feminist Approaches to International Law: Reflections from Another Century” in Doris Buss and Ambreena Manji, eds., International Law: Modern Feminist Approaches (Portland, OR: Hart Publishing, 2005) at 32-44 (detailing Wright’s work as Northern Director of Akitsiraq Law School in Iqaluit, Nunavut, in charge of a transnational Indigenous legal education in Inuit, Canadian, and international law, including required learning of Inuktitut language). 9 See e.g., Amar Bhatia, “What Happens to All of Us: Depictions and omissions of Indigenous peoples, nations, and laws in secondary school law textbooks approved for use in Ontario, 1930-2013” (unpublished manuscript on file with author). See also Eddie Benton Banai, “Shingwauk’s Teaching Lodge”, online: Youtube <https://www.youtube.com/watch?v=007d5QWBN0k>. Note also the growth of ‘Indigenous law camps’ across the country, including Osgoode Hall’s Anishinaabe law camp at Neyashiinigmiing (modelled after longer-running University of Victoria Law’s Aboriginal Awareness camp and experiential learning field schools in other disciplines, such as the Sto:lo Ethnohistorical Field School). Similar camps have been started at Windsor Law on Walpole Island, University of Toronto Law, Lakehead Law, Calgary Law, and related curricular developments at Ottawa Law, Western Law, McGill law, etc. (see John Borrows, “Outsider Education: Indigenous Law and Land-based Learning” in “Learning from the Land: Outdoor Indigenous Legal Education” (2016) 33(1) Windsor Yearbook of Access to Justice 1-27). 10 See Michael Jackson, “A Model of Scholarship” (2005) 38 U.B.C.L.Rev. 315 at 316 (reflecting on Kenneth Lysyk’s work); Kenneth Lysyk, “The Unique Constitutional Position of the Canadian Indian” (1967) 45 Can. Bar Rev. 513; Douglas Sanders, Native Rights in Canada (Toronto: Indian-Eskimo Association of Canada, 1970); Peter A. Cumming and Neil H. Mickenberg, eds., Native Rights in Canada (Toronto: Indian-Eskimo Association of Canada, 1972). 11 See also Napoleon & Friedland, supra note 2 at 226 (“Across Canada alone, there are eleven major linguistic groups and within these, there are sixty distinct Indigenous peoples with numerous regional dialects.”) and note 3 (“There are 500 distinct Indigenous societies in North America. See Canada, Royal Commission on Aboriginal Peoples, Looking Forward, Looking Back 1 (1996), 12, 15-17 ff.”)]
8
The point of diversity cannot be emphasized enough here; Indigenous legal traditions are neither
monolithic nor homogeneous. For two of the leading proponents of this revitalization, John
Borrows and Val Napoleon, it is especially important to underscore this point. For them, it is
equally important to avoid romanticizing (and thus misrepresenting and freezing) Indigenous
laws and legal traditions.12 Complex bodies of Indigenous laws and legal traditions have
dynamically interacted with one another, and with settler laws and traditions, to make and
maintain relations with diverse individuals, groups, nations, and states.
Borrows sets out some of this complexity and diversity:
The earliest practitioners of law in North America were its Indigenous inhabitants. […] They include, among others, the ancient and contemporary nations of the Innu, Mi’kmaq, Maliseet, Cree, Anishinabek, Hodinohso:ni, Dakota, Lakota, Nakota, Assinaboine, Saulteaux, Blackfoot, Secwepemec, Nlha7kapmx, Salish, Nuu-Chah-Nulth, Kwakwaka’wakw, Haida, Carrier, Tsimshian, Nisga’a, Gitksan, Tahltan, Tlingit, Gwichin, Dene, Inuit, and Métis. In relation to this diversity, I wrote in Recovering Canada: The Resurgence of Indigenous Law:
The traditions of these Indigenous peoples can be as historically different from one another as other nations and cultures in the world. For example, Canadian Indigenous peoples speak over 50 different Aboriginal languages from 12 distinct language families that have as wide a variation as those of Europe and Asia. The linguistic, genealogical, political and legal descent of these nations can be traced back through millennia to different regions or territories in northern North America. This explains the wide variety of laws found in Indigenous groups.13
In the Accessing Justice and Reconciliation (AJR) project between the Indigenous Bar
Association (IBA) and UVic’s Indigenous Law Research Unit (ILRU), Val Napoleon (Saulteau;
Gitanyow (Gitksan), House of Luuxhon, Ganada (Frog) clan)), Hadley Friedland, and a team of
12 See Borrows 2010a, supra note 3 at 10-11 (“There is no romantic time of pre-contact idyllic existence for Indigenous societies, at least over extended periods. Violence, tension, creation, destruction, harmony and tenuous peace have always been with us in varying degrees. Colonialism has compounded some of these problems. Thus, Indigenous laws incorporate certain deficiencies related to their societies’ imperfections, as is the case with the civil law and common law in their context. Therefore, we should not idealize Indigenous law in our attempts to constructively apply its precepts. Indigenous law remains relevant as long as there is discord and dissension in the world and the desire to address its consequences. […] Disputes within Indigenous communities and with other societies could potentially be reduced if their laws were more widely applied.”) (notes omitted). See also Val Napoleon, “Thinking About Indigenous Legal Orders” (2007) Research Paper for the National Centre for First Nations Governance, online FN Governance <http://fngovernance.org/ncfng_research/val_napoleon.pdf>. 13 Borrows 2010a, supra note 3 at 301, note 6 (citations omitted). For examples relating to Mi’kmaq, Haudenosaunee, Anishinabek, Cree, Metis, Carrier, Nisga’a, and Inuit legal traditions, see Borrows 2010a, supra note 3 at 59-104. See also: John Borrows, Law Commission of Canada, Justice Within: Indigenous Legal Traditions (Aug. 2006), online: Dalhouse Repository <http://dalspace.dal.ca/dspace/handle/10222/10229>[Borrows 2006].
9
researchers examined how various Indigenous legal traditions and partner communities address
harm and conflict within and between groups, including: Coast Salish law (e.g. Snuneymuxw
First Nation; Tsleil-Waututh Nation), Tsilhqot’in law (Tsilhqot’in National Government),
Northern Secwepemc law (T’exelc Williams Lake Indian Band), Cree law (Aseniwuche
Winewak Nation), Anishinabek law (Chippewas of Nawash Unceded First Nation #27), and
Mi’kmaq law (Mi’kmaq Legal Services Network, Eskasoni).14
Although I use different National and community names as and where available, this diversity
does not speak to the actual multiplicity at work within these laws and legal traditions. For
example, the teachings and writings of Basil Johnston and Edward Benton-Banai are both
influential and cited as authority by Anishinaabe legal scholars. However, they hail from
different local communities and, as one example, they naturally tell different stories and versions
of stories from one another.15 The diversity of National traditions is only the beginning of a
wider variety of interpretations that exist. Part of this wider variety stems from the different
sources of Indigenous legal traditions.
Borrows identifies numerous sources of Indigenous legal traditions, including natural law, sacred
law, deliberative law, positivistic law (e.g. band membership codes; National constitutions),
customary law, and treaties.16 Borrows notes that these distinctions are artificial and, in practice,
almost inseparable, but draws them in his book in order to demonstrate the sophistication and
14 See Hadley Friedland, Accessing Justice and Reconciliation - IBA Accessing Justice and Reconciliation Project: Final Report (February 4, 2014), online: Indigenous Bar Association <http://indigenousbar.ca/indigenouslaw/wp- content/uploads/2013/04/iba_ajr_final_report.pdf> at 5 [Friedland 2014]. Note Norman Zlotkin, “From Time Immemorial: The Recognition of Aboriginal Customary Law in Canada” in Catherine Bell and Robert Paterson, Protection of First Nations Cultural Heritage: Laws, Policy, and Reform (Vancouver: UBC Press, 2009) at 364-5 (cautioning against codification). 15 See generally John Borrows, Drawing out Law: a spirit’s guide (Toronto: UTP, 2010) [Borrows 2010b]; Borrows 2010a, supra note 3 at 274, 281. 16 See e.g. Borrows 2010a, supra note 3 at 23-58 (Borrows provides numerous examples of these different kinds of sources).
10
complexity of Indigenous laws.17 These different sources and examples are all different
interpretations, and different laws, without a single arbiter serving as the sole or highest
authority, or even an existing hierarchy among the different sources, examples, and
interpretations. This diversity is confirmed in the work of the IBA’s AJR project with UVic
law.18 All of these different sources and examples (many emphasizing oral transmission) can
serve as means for Indigenous societies to “keep their legal traditions alive and connected to
broader normative bases” through living communities.19 One of the most important aspects of a
community’s perpetuity is the ability to determine and maintain their own relations through
various mechanisms like treaties and migration. The next sections discuss the making and
maintenance of relations by Indigenous peoples with the earth, animal relations, other Indigenous
nations, groups, families, and individuals. These relations are made through confederacies,
federations, treaties, and various forms of Indigenous adoption of outsiders.
17 Borrows 2010a, supra note 3 at 55. 18 Renée McBeth, Revitalizing Indigenous Laws: Accessing Justice and Reconciliation. A report prepared for the Indigenous Law Research Unit, Indigenous Bar Association, Truth and Reconciliation Commission of Canada (2013), online: Indigenous Bar Association <http://indigenousbar.ca/indigenouslaw/wpcontent/uploads/2013/04/RM‐Final‐ Descriptive‐report‐Oct‐2012‐Lawsconf.pdf> at 5 (these included the use of knowledge from elders, families, clans, societies, stories, songs, practices and customs, knowledge-keepers, narratives, rituals, conventions, land, nature, dances, songs, ceremonies, pots, petroglyphs, scrolls, historical descriptive accounts by outsiders, witness testimony and trial transcripts, oral histories and collectively owned stories, personal memories and direct experiences, interviews, published anthropological and historical research, collections of stories, and written work by community members, including fiction, stories, poems or legends). 19 Borrows 2010a, supra note 3 at 56; for some of the methods for ensuring different legal traditions are accredited within communities, see 57-58 (“Memory aids which may record legal ideas can include wampum belts, masks, totem poles, medicine bundles, cluturally modified trees, brich bark scrolls, petroglyphs, button blankets, land forms, and crests [that…] can be supplemented by […] pre-hearing preparations, ceremonial repetition, the appointment of witnesses, dances, feasts, songs, poems, the use of testing, and the use and importance of place and geographic space.”).
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1.3 Indigenous Legal Systems for Making and Maintaining Relations
As noted above, the wide variety of Indigenous legal traditions, both between and within nations,
details a rich history of inter-Indigenous relations existing prior to encounters with Europeans.
These include treaties, inter-marriages, contracts of trade and commerce, mutual recognition for
peace, occupations of land to secure resources, and “wider systems of diplomacy in use to
maintain peace through councils and elaborate protocols.” Examples of this last point include
feasting, smoking the peace pipe, holding a potlatch, exchanging ceremonial objects, and
engaging in long orations.20
Although many examples are about making or maintaining relations, the particular subset of
treaty relationships, alliances, and confederacies is of particular relevance. This subset comprises
clear examples of Indigenous inter-National law and accepted modes of conducting nation-to-
nation relations. I focus here on just a few examples, including relations with the land and animal
nations, confederacy relations between Indigenous nations, and even relations within nations.21
The rich histories, competing norms, and multiple relations all signify the existence and
pertinence of Indigenous laws and legal traditions for contemporary communities. They speak to
20 Borrows 2006, supra note 13 at 171–72. 21 See Borrows 2010a, supra note 3 at 59-60 (Borrows notes the danger of “…focusing on discrete groups when trying to gain an understanding of Indigenous law. Care must be taken not to oversimplify Indigenous societies by presenting each group’s laws as completely isolated and self-contained. Law, like culture, is not frozen. Legal traditions are permeable and subject to cross-cutting influences. […] Some might label the contemporary and comparative nature of Indigenous law as revisionist, and thereby seek to undermine Indigenous governance and law by regarding these developments as inauthentic or potentially even non-Aboriginal. This criticism would be unfortunate and inaccurate. […] Law can become unjust and irrelevant if it is not continually reviewed and revised. Indigenous law is no different, and should not be held to unrealistic standards.”). On the point of oversimplification through inaccurately discrete and isolated groups, see also Robert Alexander Innes, “Multicultural Bands on the Northern Plains and the Notion of ‘Tribal’ Histories,” in Jarvis Brownlie and Valerie Korinek, eds., Finding a Way to the Heart: Feminist Writings on Aboriginal and Women’s History in Canada (Winnipeg: University of Manitoba Press, 2012) [Innes 2012].
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diverse articulations of citizenship, membership, and relations predicated on different sources of
authority than the Canadian state and its laws.
1.3.1 Transnational Confederations and Treaties: Mi’kmaq and Blackfoot
Mi’kmaq, Blackfoot and Haudenosaunee transnational confederacies are examples of relations
made and maintained. These confederacies highlight principles of mutual vulnerability and care
that bear resemblance to Anishinaabe legal principles mentioned later in this chapter.
“Transnational confederations” (Nikmanen) exist or existed between the Mi’kmaw Nation and
its Nikmaq (allies), comprising the Beothuk, Wulustukw keuwiuk (Maliseet-Passamaquoddy),
the Wabanaki Confederacy, Innu or Montagnais groups, Inuit, and even Saint Lawrence
Haudenosaunee (Mohawk) in the 1500s.22 Sákéj Henderson (Bear Clan, Chickasaw Nation;
Cheyenne) notes that the norms of peace and harmony required “the victor to give presents and
share with the losing party, to satisfy the reality that both parties had breached the law . . .
[which] often confused English negotiators, who defined peace in terms of submission and
reparations from the defeated.”23 Similarly, Mi’kmaq treaties were “living agreements” that
“created a permanent, living relationship…expressed in terms of kinship—the English king as
‘father’ and the colonists as ‘brothers’” and requiring routine meetings “to renew friendships,
reconcile misunderstandings, and share each other’s understandings, experiences and
resources.”24 Sákéj asserts that most of these treaties were renewal ceremonies reflecting “the
flexible, kin-like nature of the confederation” conceptualized by the metaphor of the chain and
22 James (Sákéj) Youngblood Henderson, First Nations’ Legal Inheritances in Canada: The Mikmaq Model (1996) 23(1) Man. L.J. 1–31 [Henderson 1996]; James (Sákéj) Youngblood Henderson, The Mi’kmaw Concordat (Halifax: Fernwood, 1997) at 17 [Henderson 1997]. 23 Henderson 1996, supra note 22 at section D; Henderson 1997, supra note 22 at 17. 24 Henderson 1996, supra note 22. For further examples of kinship-making, see also J.R. Miller, Compact, Contract, Covenant: Aboriginal treaty-making in Canada (Toronto: University of Toronto Press, 2009) at 7–10, 38 [Miller 2009].
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combining the practices of all of the parties in a “sui generis” way.25 These transnational
confederations, treaty arrangements, and chain metaphors have some resonance with aspects of
Canadian law (such as the notion of the constitution as a ‘living tree’). However, they are also
distinguishable from other Canadian notions of how to give treaties life, what counts as a treaty,
and the ongoing rights and responsibilities that these entail.26 They exemplify Indigenous laws
aimed at making permanent, ‘kin-like’ transnational relations predicated on renewal,
reconciliation, and resource sharing.
Another example of different approaches to the land and sacred relations arises through
Indigenous international law. As mentioned above, these include treaties and wampum laws
between Nikmanaq (leading to the Great Convention Council) or wampum belts with
neighbouring Indigenous peoples, representing terms of peace with the Iroquois Confederacy,
the Wabanaki Confederacy and the Anishinaabe Confederacy of the Great Lakes. In the
Mi’kmaw Concordat, Marie Battiste writes that: “All spaces within Mikmaki have ancient
names in the Mikmaq language that bear witness to their continuous use. Every part of this
territory was sacred to the allied people. Every tree, every shore, every mist in the dark woods,
every clearing was holy in their memory and experience, recalling not only their lives but also
the lives of their ancestors”.27
These histories of pre-contact trade, peace and co-habitation are echoed with the various
alliances of the Cree, Assiniboine, Salish, Cheyenne, Shoshone, Nakoda (Stoney), Blackfoot,
25 Henderson, First Nations’ Legal Inheritances in Canada. For much more on the Mi’kmaq tradition, see Borrows 2010a Canada’s Indigenous Constitution at 61-72 as well as the cited works by Henderson. 26 See Borrows 2010a, supra note 3 at 61-72. 27 Henderson 1997, supra note 22 at 17. See also Canada, Royal Commission on Aboriginal Peoples. “Background Paper on Customary Adoption” by Anna De Aguayo. RCAP Research Reports (January 31, 1995) in For Seven Generations: An Information Legacy of the Royal Commission on Aboriginal Peoples [CD-ROM] (Ottawa: Libraxus, 1997) at 12 [De Aguayo] (Mi’kmaw adoption of non-members and government concerns over expanding citizenship).
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Bloods, Peigan, Sarcee, and Sioux that “covered virtually the whole continent” and, in the case
of peace alliances, were meant to be binding for all time.28 Indeed, in “all the alliances that were
made, the only ones broken were the ones with the newcomers” while the First Nations reaffirm,
celebrate, and teach the youth “to know and respect” such sacred alliances.29 Likewise, practices
of reciprocity, gift giving, and exchange were continued and blended with new approaches. In
treating with the Crown, the metaphorical use of language was also used to describe
responsibilities (e.g. Great Mother and her children) – though the Cree understanding is that “the
child has autonomy and freedom from the parents but the parents are obligated to provide aid in
time of need”.30 Treaty authorities contrast the official intention of Canada to ‘once and for all’
end Aboriginal rights and title versus the Indigenous view that the treaties mark the start of
mutual obligation: “Across the lands of the numbered treaties, it is evident that Aboriginal
leaders thought they would share the land with newcomers in return for the promise made on
behalf of the Queen ‘to grant me where-with to make my living’ – that is, ‘promises of kinship,
annuity, economic assistance, and clothing’.”31
These principles and authorities underscore the importance of the treaties as laws of adoption
between nations. These laws have not disappeared from the land or Indigenous legal discourse.
Rather than being limited to the adoption of individuals in narrow circumstances, these
28 Treaty 7 Elders and Tribal Council with Walter Hildebrandt, Dorothy First Rider and Sarah Carter, The True spirit and original intent of Treaty 7 (Montreal & Kingston: McGill-Queen's University Press, 1996) at 6-7 [Treaty 7 Elders]. 29 Ibid at 10-11. 30 Ibid at 302. 31 Ibid at 310. See also Harold Cardinal & Walter Hildebrandt, Treaty elders of Saskatchewan: our dream is that our peoples will one day be clearly recognized as nations (Calgary: University of Calgary Press, 2000). Note that the divisions in these cursory mentions here are themselves subject to critique and historiographical controversy (see: Innes 2012, supra note 21 at 124-126). See also Patricia A. McCormack, “’A World We Have Lost’: The Plural Society of Fort Chipewyan” in Jarvis Brownlie and Valerie Korinek, eds., Finding a Way to the Heart: Feminist Writings on Aboriginal and Women’s History in Canada (Winnipeg: University of Manitoba Press, 2012) [McCormack 2012].
15
Indigenous legal histories and ongoing assertions point to wider laws of immigration related to
sharing lands and resources. Perhaps the most famous example, the Haudenosaunee Confederacy
is characterized by expansive constitutional authority for international relations and practices of
adoption.
1.3.2 Haudenosaunee Confederacy and Wampum Belt Treaties
All of these Indigenous nations and their respective legal traditions are rich examples of the
inter-National making of relations. In helping to tell part of this story, legal scholar Robert A.
Williams, Jr. (Lumbee) has presented American Indian visions of law and peace, which cross
borders, cultures, languages, and are all about external relations in the law and governance of
political communities.32 Williams notes that:
The Encounter era treaty tradition recalls the long-neglected fact in American history that there was a time in our national experience when Indians tried to create a new type of society with Europeans on the multicultural frontiers of colonial North America. Recovering this shared legal world is crucial to the task of reconstructing our contemporary understandings of the sources and nature of the rights belonging to Indian peoples in present-day American society. . . . In countless reiterations, the Encounter era treaty literature affirms the sovereign capacity of Indian tribes to engage in bilateral governmental relations, to exercise power and control over their lands and resources, and to maintain their internal forms of self-government free from outside interference.33
Williams’ references to bilateral relations, the exercise of power and control over lands and
resources, and self-government form just the tip of an iceberg of Indigenous laws and legal
traditions.
32 See Robert A. Williams, Linking Arms Together: American Indian Treaty Visions of Law and Peace, 1600-1800 (New York: Oxford University Press, 1997) [Williams 1997]; Robert A. Williams, “Linking Arms Together: Multicultural Constitutionalism in a North American Indigenous Vision of Law and Peace” (1994) 82 Cal. L. Rev. 981. 33 Williams 1997, supra note 32 at 8–9. See also Karen J. Travers, “Empire Revisited: The Convenant Chain of Silver, Land Policy, and the Proclamation of 1763 in the Great Lakes Region, 1760–1800” in Karl S. Hele ,ed., The nature of empires and the empires of nature: Indigenous peoples and the Great Lakes environment (Waterloo, ON: Wilfrid Laurier University Press, 2013) at 85-110.
16
The Haudenosaunee Confederacy (People of the Longhouse) was originally comprised of the
Five Nations of Cayuga, Seneca, Onondaga, Mohawk, and Oneida. This Confederacy arose
through the Haudenosaunee Kaianerekowa (Great Law of Peace/Great Good Way), which dates
from the eleventh century.34 The Haudenosaunee Confederacy expanded from Five to Six
Nations when the Oneidas sponsored and adopted the Tuscarora Nation35 (under the
Kaianerekowa) following their migration from the Carolinas around 1714.36
In her recent doctoral work,37 Ruth Koleszar-Green (Mohawk, Tyendinaga (Turtle Clan); Seneca
Nation, SNGR) expands on these systems through pre- and post-contact examples of wampum:
the ‘Hospitality or Welcome Belt’; the ‘Coming of the People with White Faces’ record belt;
and, the ’Two Row Wampum’ or Guswhenta belt.38 While the first belt was a pre-contact
example of the responsibility of hosting chiefs and council to their visitors and guests, the second
belt records the Haudenosaunee promise made to “support the Guests and help them learn to live
and thrive on this land”.39 As also noted by Tehanetorens, it is a reminder of the Haudenosaunee
pledge to “hold them up so that they did not fall down, that is, showing them how to hunt, to
34 John Fadden, The great law of peace of the Longhouse people: Iroquois, League of Six Nations (Mohawk Nation via Rooseveltown, N.Y.: Akwesasne Notes, 1977) at 66–70, 72–78. See also Bruce Johansen, Forgotten Founders: Benjamin Franklin, the Iroquois and the Rationale for the American Revolution (Ipswich, Mass.: Gambit, 1982) at 21–22; Frank G. Speck & Alexander General (Deskáheh), Midwinter Rites of the Cayuga Long House (Philadelphia: Univ. of Pennsylania Press, 1949) at 16; Paul A.W. Wallace, The White Roots of Peace (Philadelphia: Univ. of Pennsylvania Press, 1946) at 41-42. But see Taiaike Alfred, Peace, Power, Righteousness: An Indigenous Manifesto (Don Mills, ON: Oxford University Press, 1999) at 126 (cautioning against misappropriation and reification of a reduced-to-text version of the Kaianerekowa). 35 Darlene M. Johnston, “The Quest of the Six Nations Confederacy for Self-Determination” (1986) 44 UTFLR 8 (Johansen, supra note 34 at 21). See also De Aguayo, supra note 27 at 20; Tehanetorens, Wampum Belts (Ohsweken, ON: Iroqrafts, 1983) at 13 (the Invitation to Enter the Confederacy Belt) and 49 (the Belt of the Six Nations: “This belt commemorates the admission of the Tuscaroras to take shelter under the Tree of Peace, the Iroquois United Nations.”) [Tehanetorens]. 36 See, e.g.: Oren Lyons, “Indian Self-Government in the Haudenosaunee Constitution” (1986) 55 Nordic J. Int’l L. 117–21. Six Nations Confederacy traditional territory spans the Northeastern United States and across the Canadian border in Quebec and Ontario. See also: Deskaheh, Last Speech of Deskaheh, Address on WHAM radio in Rochester, N.Y. (Mar. 10, 1925) in Basic Call to Consciousness (Akwesasne Notes, 1978) at 25-33. 37 Ruth Koleszar-Green, Understanding Your Education: Onkwehonwe and Guests Responsibilities to Peace, Friendship and Mutual Respect (OISE/University of Toronto, PhD thesis, 2016) at 29-36 [Koleszar-Green]. 38 Ibid. See also Tehanetorens, supra note 35 at 9-11. 39 Koleszar-Green, supra note 37 at 30.
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farm and teaching them how to survive and live in this country until they were strong enough to
support themselves.”40 Koleszar-Green notes that there remains much work for the
Haudenosaunee to “uphold our end of the bargain” but this need stems from “the structure of the
Canadian state… [and] has not been fully realized due to colonial engagement.”41 She also notes
the importance of settler (or Guest, to follow her terms42) responsibilities in these relationships.
The most famous example in Haudenosaunee law (and perhaps all settler-Indigenous relations) is
the Guswhenta or Two-Row Wampum belt. The parallelism directed by the Two-Row stands in
stark contrast to the status quo with Canadian control over both Canadian and Indigenous
affairs43:
As noted by Tehanetorens with respect to the Two-Row Wampum:
This belt symbolizes the agreement and conditions under which the Iroquois welcomed the white peoples to this land. ‘You say that you are our Father and I am your son.’ We say, ‘We will not be like Father and Son, but like Brothers.’ This wampum belt confirms our words. These two rows will symbolize two paths or two vessels, traveling down the same river together. One, a birch bark canoe, will be for the Indian People, their laws, their customs and their ways. The other, a ship, will be for the white people and their laws, their customs and their ways. We shall each travel the river
40 Tehanetorens, supra note 35 at 9-11. 41 Koleszar-Green, supra note 37 at 31. 42 Koleszar-Green, supra note 37 at 34 (courtesy of Lee Maracle). 43 Tehanetorens, supra note 35 at 9-10.
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together, side by side, but in our own boat. Neither of us will make compulsary [sic] laws or interfere in the internal affairs of the other. Neither of us will try to steer the other’s vessel.44
These laws of care, respect and responsibility are authorized by the Great Law (which is also the
Confederacy’s constitution) and are a few important examples of different relationship-making
that are possible on these lands in relation to welcoming others.45
As with the Mi’kmaq and Blackfoot, the Haudenosaunee also pursued treaties with other
Indigenous nations outside of their Confederacy. Borrows describes the 1701 treaty between the
Haudenosaunee and the Anishinabek near Sault Ste. Marie, which was transacted orally and
recorded on wampum with the image of a “bowl with one spoon.46” This wampum signified that
that “both nations would share their hunting grounds in order to obtain food,” with the spoon
guaranteeing that there would be neither knives nor bloodshed on the shared land.47 Writing on
the treaty, Leanne Simpson (Mississauga of Nishnaabeg Nation) argues for the need to focus on
the treaty’s purpose of maintaining good relationships as a basis for lasting peace. These good
relations are characterized by Bimaadiziwin (living the good life) and being in balance with the
natural world, family, clan, and nation through the Seven Grandfather teachings of Anishinaabe
44 Tehanetorens, supra note 35 at 10-11.
45 See also the Emigration Belt (Tehanetorens, supra note 35 at 55). 46 See Leanne Simpson, “Looking after Gdoo-naaganinaa: Precolonial Nishnaabeg Diplomatic and Treaty Relationships” (2008) 23(2) Wicazo Sa Rev. 29 at 37-42 [Simpson 2008] (only taking as much as needed, sharing everything, and not wasting any part of the animal in accordance with Nishnaabeg environmental ethics, which required decision making cognizant of impact upon “the plant and animal nations, in addition to the next seven generations of Nishnaabeg,” in turn providing “an ancient template for realizing separate jurisdictions within a shared territory”). See also Amar Bhatia, “In A Settled Country, Everyone Must Eat: Four Questions About Transnational Private Regulation, Migration, and Migrant Work” (2012) 13(12) German LJ 1282 at 1296 (citing Lee Maracle on host law) [Bhatia 2012a]. More generally, see Koleszar-Green, supra note 37. 47 Borrows 2010a, supra note 3 at 172 (Borrows also describes the Feast of the Dead conducted with the Wendat in order to ease tensions and celebrate ancestors at 173). In the context of the Haudenosaunee, see also Wallace, supra note 34 at 31-32 (Deganawidah and “one dish” principles with common access, sharing, and the avoidance of bloodshed).
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law.48 Simpson emphasizes the open, ongoing, reciprocal, and dynamic relationships requiring
nurturing, maintenance, and respect. This respect entailed “waiting in the woods” to build a fire
before crossing to another’s territory to be met with wampum, a feast, and the exchange of gifts.
Generally, visitors were treated with “the utmost respect to promote peaceful diplomatic
relations between nations.49” Simpson underscores the relevance of such relationships today,
since the “Common Dish” relationship between the Haudenosaunee Confederacy and
Anishinaabe peoples sets “forth terms for taking care of a shared territory while maintaining
separate, independent sovereign nations.”50 Citing Borrows and Grassy Narrows elder Judy
DaSilva, Simpson also notes how the diplomatic agreements and treaty relationships included
attendant rights and responsibilities to respect the animal nations or risk their departure from the
territory.51 Simpson emphasizes that the dish was practiced through responsibilities that included
“taking care of the dish” by only taking as much as needed, sharing everything, and not wasting
any part of the animal in accordance with Anishinaabe environmental ethics.52 These ethics
required decision making cognizant of impact upon “the plant and animal nations, in addition to
the next seven generations of Nishnaabeg,” in turn providing “an ancient template for realizing
separate jurisdictions within a shared territory.”53 As seen below, these wider confederacies of
care and responsibility are important to Anishinaabe identity and the extension of it to others,
including settlers and more recent immigrants and migrants.
48 Simpson 2008, supra note 46 at 31-32. Borrows poignantly evokes these teachings in John Borrows, Seven Generations, Seven Teachings: Ending the Indian Act (May 2008), Research Paper for the National Centre for First Nations Governance, online: FN Governance <http://www.fngovernance.org/research/john_borrows.pdf>. 49 Simpson 2008, supra note 46 at 31-32. 50 Ibid. 51 Ibid at 34–36. 52 Ibid at 37. 53 Ibid at 37, 42.
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1.3.3 Anishinaabe Citizenship with the Land
In a manuscript dealing with the litigation of Aboriginal land claims, Anishinaabekwe legal
scholar Darlene Johnston (Chippewas of the Nawash (Marten)) examines the pre-contact
continuity of Anishinaabe people and worldviews through the primary spiritual, cosmological
and totemic identity connections between people and place.54 This type of ethical attachment to
land is one that is deeply grounded and in high contrast to dominant view of relationships to land
and place imported and imposed by Christian European traders, missionaries, corporations, and
colonial governors and administrators. In research prepared for the Ipperwash Inquiry into the
murder of Dudley George, Johnston examines ways of “Respecting and Protecting the Sacred”
from an “intercultural perspective” in order to show the need for increased protection of sacred
lands by the province of Ontario and increased understanding from non-Aboriginals in the face
of a history of violence.55 Because comprehending “traditions [of sacredness] within their own
frame of reference is key to establishing a respectful relationship”, Johnston uses oral traditions,
archival history, and linguistics to promote an intercultural understanding of the Anishnaabeg
relationship to their sacred lands.56
She recounts an origin story about the creation of “particular groups of people” through the
creation of the island of Michilimakinac between Lake Huron and Lake Michigan by animal
ancestors, such as the beaver, otter, muskrat, and fox who are led by the Great Hare.57 Johnston
notes that the story relates values about Anishnaabeg notions of leadership (with persuasive
54 Darlene Johnston, Litigating Identity: The Challenge of Aboriginality (manuscript on file with author). 55 Darlene Johnston, Respecting and Protecting the Sacred. Ipperwash Inquiry research paper (Toronto, ON: Ipperwash Inquiry, 2006) online: Attorney General <http://www.attorneygeneral.jus.gov.on.ca/inquiries/ipperwash/policy_part/research/pdf/Johnston_Respecting-and-Protecting-the-Sacred.pdf> at 1 [Johnston 2006]. 56 Ibid at 2. 57 Ibid at 3.
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rather than coercive authority) and land. These values are especially pertinent in the context of
migration, where a shared dilemma of landlessness is solved by cooperation for mutual
sustenance.58 Johnston notes that listeners to the story are indebted not only for “a terrestrial
environment in which humans could survive” but also because “the Great Hare caused the birth
of men” from the corpses of the other animals who withdrew to find the place most suited to
them and further shape the landscape for sustenance.59 Johnston concludes the story by asserting:
“For the Anishnaabeg, the Great Lakes region is more than geography. It is a spiritual landscape
formed by and embedded with the regenerative potential of the First Ones who gave it form and
to whom they owe their existence.”60 It is also a place where creation story landmarks (such as
First Ones’ burial places) are especially important, with Anishinaabe burial practices
strengthening and maintaining the “ongoing relationship between the Dead and the Living” in
Anishnaabe culture.61 This ongoing relationship was characterized by respect for the remains of
the dead, their spiritual essence, and care, protection, and feasting of these remains.62 Apart from
ancestral burial grounds, Johnston also writes of the recognition of other Anishnaabeg lands as
sacred due to the geographically or seasonally specific presence of other spiritual beings known
as Manitous. This sacred status of land countered Christian assumptions that “all other elements
of the natural world [were] devoid of spirit,” if not divinely cursed and under human dominion.63
58 Ibid at 4. 59 Ibid at 4-5. For the connection between the ‘Great Hare’ in Ojibway story (aka Nanabush) and in Cree story (Wisahkecahk/Elder Brother), see Robert Alexander Innes, Elder Brother and the Law of the People: Contemporary Kinship and Cowessess First Nation (Winnipeg: University of Manitoba Press, 2013) at 36 (stories as part of the law of the people and impacting questions of contemporary customary kinship) [Innes 2013]. 60 Johnston 2006, supra note 55 at 5. 61 Ibid at 5-6. 62 Ibid at 8-9. 63 Ibid at 10-11. While she notes other cultural traditions sharing conceptions of landscape embodying or associated with spirits, she contrasts these with the dominant narrative and creation story accompanying Europeans to ‘the so-called New World’, specifically the creation of humans in God’s image (not animals), with their ‘dominion over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth,’ but with man being the only one with a living soul due to God’s breath of life and the ability to know good and evil (13-14). The
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John Borrows has made one of the most expansive arguments in this regard with respect to the
Anishinaabe legal (and spiritual, linguistic, cultural, and political) principle of the earth’s
sentience, agency, and legal personality as a living being.64 In line with Johnston’s work,65 the
nuance of this approach to the earth is one that either introduces a new sense of scale to questions
of migration or an alternative articulation of one’s relationship to the existing scales.66 In
sketching the complexity of membership sensitive to local formations of the earth, Borrows notes
that the “ability to relate to the earth on different scales feeds a multiplicity of citizenship rights
and responsibilities for Anishinaabe people and the earth. A person could be simultaneously a
Clan (dodem) member, Anishinabek, Canadian, American, and a world citizen. Likewise, the
earth can concurrently be a planet, geological plate, continent or small rock”.67 As much for
Anishinaabe people as for Canadians, Borrows’ conclusion on this point seems apposite: “There
Christian creation story continues with the expulsion of Adam from Eden due to an animal (the serpent) and his female companion, with all three punished for the first sin and the earth consequently cursed, too (15). Perhaps reflecting this attitude, Johnston cites Jacques Cartier’s 1534 record of the first voyage to North America and his reaction to seeing the coast of Labrador: ‘a place fit for wilde beastes […] nothinge else but mosse and small thornes scattered here and there, withered dry. To be short, I believe that this was the land that God allotted to Caine’ (15; citing “The First Relation of Jacques Cartier of S. Malo, 1534,” as reproduced in H.S. Burrage, Early English and French Voyages chiefly from Hakluyt 1534-1608 (New York: Barnes & Noble Inc., 1967) at 8). See also Marie Battiste in Henderson, 1997 supra note 22 at 13.
64 Borrows 2010a, supra note 3 at 308-314 (story of the powwow/alvar). In a different context regarding the legal personality of a national park and a river in Aotearoa New Zealand, see Jacinta Ruru, “A Treaty in Another Context: Creating Reimagined Treaty Relationships in Aotearoa New Zealand” in John Borrows and Michael Coyle, eds., The right relationship: reimagining the implementation of historical treaties (Toronto: University of Toronto Press, 2017) and Craig Linkhorn, “Legislation – Te Awa Tupua (Whanganui River Claims Settlement) Bill – Selection Committee report on Bill – Whiringa-a-rangi 2016 (Dec. 2016) Maori L.R., online: Maori LR < http://maorilawreview.co.nz/2016/12/legislation-te-awa-tupua-whanganui-river-claims-settlement-bill-select-committee-report-on-bill-whiringa-a-rangi-2016/>. For a related development in India, see: “Ganges and Yamuna rivers granted same legal rights as human beings” (Indian court cites the Whanganui in New Zealand as example), online: The Guardian <https://www.theguardian.com/world/2017/mar/21/ganges-and-yamuna-rivers-granted-same-legal-rights-as-human-beings>. 65 Johnston 2006, supra note 55. 66 From a different perspective, see Michael Blake & M. Risse, “Immigration and Original Ownership of the Earth” (2009) 23 Notre Dame J.L. Ethics & Public Policy 133, online <http://scholarship.law.nd.edu/ndjlepp/vol23/iss1/5Cf Risse>. See also Mariana Valverde, Jurisdiction and Scale: Legal ‘Technicalities’ as Resources for Theory” (2009) 18(2) Social & Legal Studies 139-157. 67 Borrows 2010a, supra note 3 at 311.
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are clear and contrasting alternatives for how Canadians might construe their relationships to the
land. Whether the earth is thought of as living or dead, our laws have some distance to travel
before they fully understand or potentially embrace some of these alternatives”.68 This respect for
wider relations, including to other Indigenous peoples and to the land, spurs the ability and need
to further expand Indigenous circles through mechanisms such as adoption.
1.3.4 Haudenosaunee and Anishinaabe Adoption and the Incorporation of Strangers
In a far-ranging background report on customary adoption prepared for the Royal Commission
on Aboriginal Peoples (RCAP), anthropologist Anna De Aguayo, reviewed the existing
ethnographic literature on point. She defined adoption as a broad institution (beyond parentage)
that involves change in, or the creation of, kinship ties, often termed by anthropologists as
‘transactions in kinship’ in existing contexts of ‘generalized reciprocity’.69 De Aguayo notes at
least five main types of customary adoption: 1) jural adoption; 2) fosterage; 3) mourning
adoption; 4) economic adoption; and 5) political adoption.70 The first three types can be
separated into their own category as ‘transactions in parenthood’, with jural adoption
characterized by (among other things) its intended permanence versus the temporariness of
fosterage and mourning adoption.71 De Aguayo divides the final two types into their own
categories: economic adoption as ‘transactions in siblingship’ and political adoption as
68 Ibid at 331 (on implications for acknowledging the earth’s agency for 21st century North American economic organization and development). 69 De Aguayo, supra note 27 at 4. 70 Ibid at 1 (prepared in the context of RCAP’s review of social services law and policy for Aboriginal families and children). Following the field, she defines ‘adoption’ as an economic ‘method of moving people to resources’, which is similar to some discourses around migration and immigration. De Aguayo also notes the increasing importance in the literature of the social, symbolic and kinship aspects of adoption, especially non-Western adoption, describing it more as ‘one more bridge between families over which resources can flow’ (21-22). 71 Ibid at 7-8. Depending on the nation, mourning adoption spanned from ceremonial adoption of the dead through the living for therapeutic purposes to, due to kinship structures, the replacement of population and leadership following warfare and other deaths (e.g. 19-20). See also Tehanetorens, supra note 35.
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‘transactions in membership’.72 Both economic adoption and political adoption were usually the
only two types of customary adoption to be practiced with respect to ‘strangers to the
community’.73 From her review, De Aguayo states the following: “Political and economic
adoption seem to have suffered the greatest pressure to disappear by new government and
religious institutions. These two institutions have been replaced by more bureaucratized social
institutions, such as Band membership lists or citizenship and legal contracts.”74 While jural
adoption and fosterage continue, she concludes that “… the practices of political and economic
adoption, due to pressure from government, missions and legal institutions have almost
completely disappeared.”75
The Haudenosaunee Great Law includes ‘Laws of Adoption’ applicable within the member
nations and outside the member nations as well:76
68. Should any member of the Five Nations, a family or person belonging to a foreign nation submit a proposal for adoption into a clan of one of the Five Nations, he or they shall furnish a string of shells, a span in length, as a pledge to the clan into which he or they wish to be adopted. The Chiefs of the nation shall then consider the proposal and submit a decision.
72 De Aguayo, supra note 27 at 9. 73 Ibid at 9 (“The first, Economic Adoption, can be described as a "transaction in siblingship" whereby an individual is adopted into the role of a younger or older sibling, usually a brother, to facilitate trade or resource harvesting. This is not just a trapping partner but someone with whom you use kinship terms after some form of public ceremony. Economic Adoption is frequently noted in historic records of Plains trading practices and will be discussed in more detail below. The last category of Customary Adoption, Political Adoption, is a form of "transaction in membership" whereby adoption allows for the incorporation of strangers into the existing kinship structure. The adoptees are usually captives, refugees from war or survivors of a disaster.”). 74 Ibid at 23. 75 Ibid at 25 (emphasis added). For recent work on the elimination of “competing forms of adoption” in the context of state-directed assimilation and the trans-racial adoptions of the ‘Sixties Scoop’, see also Allyson Stevenson, “The Adoption of Francis T: Blood, Belonging, and Aboriginal Transracial Adoption in Twentieth Century Canada” (2015) 50.3 Canadian Journal of History 470-491 [Stevenson 2015]. See also Allyson Stevenson, Intimate Integration: A Study of Transracial Adoption in Saskcatchewan, 1944-1984 (Toronto: University of Toronto Press, forthcoming). 76 Cf Borrows 2010a, supra note 3 at 73 (“its primary authority continues to reside in its spoken version”).
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69. Any member of the Five Nations who through esteem or other feeling wishes to adopt an individual, a family or number of families may offer adoption to him or them and if accepted the matter shall be brought to the attention of the Chiefs for confirmation and the Lords must confirm adoption.
70. When the adoption of anyone shall have been confirmed by the Chiefs of the Nation, the Lords shall address the people of their nation and say: "Now you of our nation, be informed that such a person, such a family or such families have ceased forever to bear their birth nation's name and have buried it in the depths of the earth. Henceforth let no one of our nation ever mention the original name or nation of their birth. To do so will be to hasten the end of our peace.77
These three short clauses illustrate a living tradition characterized by complex relations that do
not reflect the dismissive sentiment with which they have been met by Canada. Tehanetorens
also mentions another wampum, the ‘Ransom Belt’, which “was used by the women of the
nation to symbolize their authority for adopting a prisoner of war. The belt removed the cloud of
the women’s mourning and made a son of the captive. It could save a life if presented by a
woman.”78 The women’s authority in the context relates to the Government of Canada’s
argument against the Six Nations’ 1920’s appeal for recognition at the League of Nations. The
Government of Canada stated that Six Nations had “in no way conducted or maintained any
separate courts or legal machinery of their own,” and that the hereditary Council’s method of
selecting chiefs was a “primitive matriarchal form where the oldest women of the clans hold
voting power.”79 This interpretation is belied by the Six Nations’ overarching goal of peace, the
Women’s Nominating Belt, and the possibility of political adoption into specific Confederacy
relations.80 Neither absent nor primitive, the principles and practices of adopting individuals,
77 See Tehanetorens, supra note 35 at 14-15. 78 Ibid at 27 (“Ransom Belt”). Tehanetorens also metions the Penobscot Nation-Onondaga invitation belt at 29 (noting that: “Iroquois territory, especially after the white man came, became the great asylum of many Indian peoples. It became a great ‘melting pot’ of dispossessed Indian peoples. A system of unity was created which would have been impossible under any European system.”). 79 See Statement of Government of Canada respecting the “Appeal of the ‘Six Nations’ to the League” (June 1924) 5 League of Nations Official Journal 829 [Dec. 27, 1923]. Sent from Joseph Pope, Canada’s Under-Secretary of State for External Affairs but written by Duncan Campbell Scott. 80 See Tehanetorens, supra note 35 at 20-21 (Women’s Nominating Belt).
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families, and nations demonstrates the formal, public, binding, and transformative nature of
Haudenosaunee peoples and their legal traditions.81
Both migration and adoption also emerge at the core of Anishinaabe law, society, prophecy and
traditions.82 For instance, and following from the stories shared by Edward Benton-Banai
(Bawdwaywidun), Grand Chief of the Three Fires Midewiwin Lodge (Ojibwe-Anishinabe of the
Fish Clan from Wisconsin), the story of the Anishinaabe is one that centers a 500-year process of
migration.83 As noted by Benton-Banai, at the heart of the Seven Fires or Prophecies that shape
and track the path of the Anishinaabe peoples and nation is the prophecy of Anishinaabe
migration from the northeastern coast of North America to “a turtle-shaped island” on the
western edges of Lake Superior, with “seven stopping places along the way”.84 These
prophecies included Anishnaabe encounters and relations with European settlers and, among
other things, the loss of children the “boarding school era of ‘civilizing’ Indian children”.85 As
seen in Benton-Banai’s map below, the seven stopping places included points near or at
Montreal, Ottawa, Niagara Falls, the Detroit River, Manitoulin Island, Sault Ste. Marie, Spirit
Island, and, finally, Madeline Island.86
81 See De Aguayo, supra note 27 at 17-18 (“The Iroquoian-speaking societies that lived and live around the resource-rich Great Lakes have made use of the full repertoire of Customary Adoption forms. Fosterage according to mother's lineage and Clan, jural adoption into positions of authority, political adoption of entire nations and outsiders, and mourning adoption were all prevalent”). 82 For a comparative approach to mobility focused on jurisprudence in different states and regions, see John Borrows, “Physical Philosophy: Mobility and the Future of Indigenous Rights” in Benjamin J Richardson, Shin Imai & Kent McNeil, eds, Indigenous Peoples and the Law: Comparative and Critical Perspectives (Oregon: Hart Publishing, 2009). 83 See, e.g., Edward Benton-Banai, The Mishomis book: the voice of the Ojibway (St. Paul, Minn.: Indian Country Press, 1979) at 1 [Benton-Banai 1979]. See especially Chapter 13, The Seven Fires (89-93) and Chapter 14, The Migration of the Anishinaabe (94-102). See also Johnston 2006, supra note 55 at 4. 84 Benton-Banai 1979, supra note 83 at 89. 85 Ibid at 90-91. For a description of the migration, see Chapter 14, The Migration of the Anishinabe at 94-102. 86 Ibid at 99.
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As detailed by Benton-Banai, the centuries-long migration also included such major events as
conflicts and peace-making with the Haudenosaunee Confederacy and the formation of the Three
Fires Confederacy between three confederate Anishinabe nations: the Potawatomi, Odawa, and
Ojibway.87 The Three Fires Confederacy stands as another example of Indigenous laws and
legal traditions dealing with issues of inter-National relations and, as relevant here, migration,
87 Ibid at 98-99.
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too.88 The focus on the migration of peoples here also echoes Borrows’ comparative work on the
physical and philosophical mobility (and settler immobilizing) of Indigenous peoples89.
Equally important to the place of migration and mobility is the role of adoption. As noted by the
late Anishinaabe elder and authority, Basil Johnston, adoption is at the core of the Anishinaabeg
peoples and their legal traditions90. Indigenous studies scholar Damien Lee (Zoongde) notes as
much in his examination of Anishinaabe adoption as an anti-colonial order of Indigenous
citizenship and law. Referring to Basil Johnston’s telling of part of the Anishinaabeg creation
story, he notes the time “where animal nations adopted the first humans when they were new and
helpless… the weakest beings on Earth [who] needed help in order to survive”:91
In the first year, the animal beings nourished and nurtured the infants and the spirit woman. For all their needs the spirit woman and her children depended upon the care and goodwill of the animals. ...
The first winter in the life of the Anishnabeg was an ordeal. Food was scarce; the winds were harsh. The infants grew sick and lost strength daily. It seemed that they would not survive... With bear’s sweet flesh, the infants survived. The death of the bear encompassed life for the new beings. Thereafter, the other animals sacrificed their lives for the good of [humans]. ... In gratitude and fondness they dedicated a prayer to the other animals, “I had need.” Men and women survive and live because of the death of their elder brothers.
88 The Three Fires Confederacy (the Ojibway, the Ottawa, and the Powtawatomi) is one of the major Indigenous confederacies already long extant before the time of settlement and colonization. See, e.g., Phil Bellfly, Three Fires Unity: The Anishnaabeg of the Lake Huron Borderlands (Lincoln: University of Nebraska Press, 2011); Karl Hele, Lines Drawn Upon the Water: First Nations and the Great Lakes Borders and Borderlands (Waterloo, ON: Wilfrid Laurier University Press, 2008). 89 See also Borrows 2009, supra note 82. The migration that is at the heart of the Anishinaabe story also relates to how migration and relations are at the heart of Anishinaabe law, as discussed by historian Alan Corbiere in tracing the trade and circulation of wampum from the east coast to the polished and carved quahog beads strung as wampum belts providing the basis for inter-Indigenous and, later, settler-Indigenous treaty-making and wampum constitutionalism (see, e.g., Alan Ojiig Corbiere, “Their own forms of which they take the most notice: Diplomatic metaphors and symbolism on wampum belts” in Coribiere et al., Anishinaabewin Niiwin: Four Rising Winds 2013: a selection from the proceedings of the 2013 Anishinaabewin Niiwin multidisciplinary culture conference, held in Sudbury, Ontario (M’Chigeeng, ON: Ojibwe Cultural Foundation, 2014) at 49 [Corbiere]). 90 The government sought to challenge transracial adoption by (rather than of) Indigenous peoples in an effort to seek the elimination of competing forms of adoption in the lead-up to the Sixties Scoop (see Stevenson 2015, supra note 75). 91 On this point, see the previously mentioned ‘Coming of the People with White Faces’ belt at Tehanetorens, supra note 35 and Koleszar-Green, supra note 37 at 30.
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The infants relied on the animals, and in turn the animals made the choice to bring the humans into their families.
It is the obligation to care for others that drives Anishinaabeg citizenship orders.92
[…]
Kegedonce’s concept of dibenjigaazowin—or “he or she who owns, is responsible for, or controls their associations”—twins with the concept of adoption to produce a citizenship order based on making relatives and citizens through the sharing of resources and responsibilities. Sharing in this way creates bonds and reciprocal relationships. In both, self-determination remains intact: choosing who to care for at the family level is the same type of self-determination needed in discerning citizenship at the national level, namely, a self-determination based on controlling our associations that includes all those who rightfully belong.93
This story of vulnerability, adoption, sharing, responsibility, control and care echoes earlier
examples discussed above, including the One Dish Wampum Belt. It also reflects themes from
the Haudenosaunee Welcoming and Two Row wampum belts dealing with the pledge to
welcome and hold up newcomers so they would not fall down. Darlene Johnston recounts similar
values through the creation story of the island of Michilimakinac by the animal ancestors and
relations of the Anishinaabe.94 These values are especially pertinent in the context of migration,
where a shared dilemma of landlessness is solved by cooperation for mutual sustenance.95
92 Damien Lee, “Adoption is (not) a Dirty Word: Towards an Adoption-centric Theory of Anishinaabeg Citizenship” (2015) 10(1) First Peoples Child & Family Review 86 at 92-93 (citations omitted, citing Basil Johnston, Ojibway Heritage (2008 [1976]) at 13-16) [Lee 2015]. On this point, see also Innes 2013, supra note 59 at 33 (citing Skinner’s collection of Elder Brother stories from elders, including the adoption of Elder Brother by the wolves and assuming of accepted kinship roles and responsibilities), 34 (on community understanding of need to adhere to Elder Brother story principles of easily incorporating others into the band in order for society to be self-perpetuating), and 43 (family/kinship ties are of greater importance for identity than place of residence, gender, cultural affiliation, or notions of race). 93 Lee 2015, supra note 92 at 94 (citing Borrows 2011 at 79; 2014 email from Borrows to Lee) and at 89 (“This emphasis on behaviour is key to Anishinaabeg citizenship. John Kegedonce Borrows (2011, p. 79) has argued that Anishinaabeg citizenship is not based on race, but on the concept of daebinaewiziwin, or duty and rights, where the highest goal is to maintain balance. The emphasis on maintaining balance by carrying responsibilities supports the claim that citizenship in Anishinaabeg nations is based on more than just blood. […] In an email to me, he wrote that the term dibenindizowin resonates with the idea that a person possesses self- determination within themselves and their relationships, and how this liberty connects self-determination to Anishinaabe citizenship law. “Freedom has sui generis, property-like connotations in the Ojibwe language,” he wrote. “It implies that a free person owns, is responsible for, and controls how they interact with others. The same root word can be used to describe someone who is member of a group; thus the Anishinaabe term for citizen is dibenjigaazowin: he or she who owns, is responsible for, or controls their associations” (Borrows, personal communication, 2014).”). 94 Johnston 2006, supra note 55 at 3. 95 Ibid at 4.
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1.4 Indigenous Control of Canadian Affairs
How do these Indigenous legal orders, treaty relations, Confederacies, and adoption laws and
stories relate to Indigenous peoples’ contemporary context? Borrows’ work is highly suggestive
in this regard. He has proposed “Aboriginal control of Canadian affairs” (in contrast to the call of
an earlier generation for ‘Indian control of Indian affairs’ and the current reality of Canadian
control of Indian Affairs).96 Borrows premises such control in part on his notion of ‘landed’
citizenship or being in citizenship with the land:
My grandfather was born in 1901 on the western shores of Georgian Bay, at the Cape Croker Indian reservation. Generations before him were born on the same soil. Our births, lives, and deaths on this site have brought us into citizenship with the land. We participate in its renewal, have responsibility for its continuation, and grieve for its losses. As citizens with this land, we also feel the presence of our ancestors, and strive with them to have the relationships of our polity respected. Our loyalties, allegiance, and affection is related to the land. The water, wind, sun, and stars are part of this federation. The fish, birds, plants, and animals also share this union. Our teachings and stories form the constitution of this relationship, and direct and nourish the obligations this citizenship requires. The Chippewas of the Nawash have struggled to sustain this citizenship in the face of the diversity and pluralism that has become part of the land. This has not been an easy task. Our codes have been disinterred, disregarded, and repressed. What is required to reinscribe these laws, and once again invoke a citizenship with the land?”97
The prospect and reality of “citizenship with the land” raised by Borrows brings together notions
of inclusivity, care and relations that extend beyond humans to a confederacy with the land, life,
and waters. Such landed citizenship echoes the obligations and relations described in Johnston’s
work with respect to the land, the dead, the life, and the waters.
96 John Borrows, “`Landed` Citizenship: Narratives of Aboriginal Political Participation” in Alan C. Cairns et al., Citizenship, Diversity & Pluralism: Canadian and Comparative Perspectives (Montreal & Kingston: McGill & Queen’s University Press, 1999) 326-347 at 328 [Borrows 1999]. See also: Bonita Lawrence, “Real” Indians and Others: Mixed-Blood Urban Native Peoples and Indigenous Nationhood (Lincoln, NB & London: University of Nebraska Press, 2004); Rose Cuison Villazor, “Blood Quantum Land Laws and the Race Versus Political Identity Dilemma” (2008) 96 California L Rev 801; Larry Chartrand, “Metis Identity and Citizenship” (Nov. 2001) 12 W.R.L.S.I. 5.; Harold Johnson, Two families: Treaties and Government (Saskatoon: Purich Publishing Ltd, 2007) at 104 (on individual adoption) [Johnson 2007]. 97 Borrows 1999, supra note 96 at 326 (emphasis added). See also: Lee Maracle, I Am Woman: A Native Perspective on Sociology and Feminism (Vancouver: Press Gang Publishers, 1999) at 36-42 (regarding spiritual and traditional qualities as political and legal ones that prescribe, in part, caretaking of the land). See also George Manuel and Michael Posluns, The Fourth World: An Indian Reality (Don Mills, ON: Collier-Macmillan Canada, 1974) at 11, 37, 41-44.
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Asking about once again invoking ‘a citizenship with the land’ echoes Val Napoleon’s later
question: “who are we beyond colonialism?”98 The answers – as with the traditions – do not lie
in insularity. Instead, Borrows concludes that to “preserve and extend our participation with the
land […] Aboriginal people must work individually and as groups beyond their communities to
enlarge and increase their influence over matters that are important to them”.99 In the context of
identity, the pursuit of interdependence rather than autonomy leads Borrows to move beyond
current limits on Aboriginality based on blood or genealogy.100 He articulates a broader basis for
belonging that leaves room for others, where it could be “appropriate to have rigorous citizenship
requirements based on other grounds (much more than kin-based groups)” due to the “social,
political, legal, economic, and spiritual ideologies and institutions that are transmitted through
cultural systems not exclusively dependent on ethnicity”.101 The possibility that others can learn
and adopt these ideologies and institutions is raised, as is the potential for “implementing laws
consistent with these traditions to extend citizenship in Aboriginal communities to non-
Aboriginal people”.102 This possibility is compelling and worth dwelling on here in anticipation
of later chapters on the antimony between Canadian state sovereignty and Anishinaabe adoption.
Indigenous legal traditions, and Anishinaabe laws here, are capable of governing relations
between strangers in ways that make peoples familiar to one another and their surroundings in
the widest possible sense (from the recognition of relations with the earth and land, to the dead,
to sacred and fictive kinship with animal nations103). These real and fictive kinship ties arise
98 Napoleon 2007, supra note 12 at 20. 99 Borrows 1999, supra note 96 at 328-9. 100 Ibid at 339. More recently, and on the complex multiplicity of relations, see Innes 2013, supra note 59; Michael Asch, On Being Here to Stay: Treaties and Aboriginal Rights in Canada (Toronto: University of Toronto Press, 2014) at 138. 101 Borrows 1999, supra note 96 at 340. 102 Ibid at 340. 103 See, e.g., Johnston 2006, supra note 55 at 2-9.
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through treaties informed by Indigenous laws, but they are not simply due to the largesse of
Indigenous host law. They form part of the strategy for Aboriginal control of Canadian affairs in
the face of ongoing oppression. When Borrows describes the struggles of the Chippewas of the
Nawash to sustain their citizenship, he puts it mildly that these struggles take place “in the face
of the diversity and pluralism that has become part of the land.” This ‘diversity and pluralism’
surely includes British and then Canadian colonialism.104 Combating the structure of such
colonialism will require meaningful treaty relations and treaty people who are actually aware of
their rights and responsibilities from the perspective of Indigenous legal traditions. At minimum,
these responsibilities include recognizing all of the relations authorized by Indigenous law (with
the land, the water, the living, and the dead). Rather than coming at the cost of the ‘special bond’
between Indigenous peoples and traditionally occupied lands,105 Indigenous laws that extend
“citizenship with the land” will actually serve to preserve Anishinaabe participation with the
land. Instead of simply justifying the presence of some people, the goal is actual transformation
of relations to one another and the land.106 Borrows argues for a reconfiguration of Canadian
affairs that fits the breadth and depth of Indigenous relations:
Why should an artificial line drawn around my reserve prevent me from participating in the vast areas my ancestors revered? This focus could prevent the acknowledgment and strengthening of the continuing Aboriginal reliance, participation, and citizenship with lands they use outside these lines. Aboriginal peoples still honour the places made meaningful by an earlier generation’s encounters. They still travel through these places and rely on them for food, water, medicine, memories, friends, and work. Many are hesitant to relinquish their relationship with them in the name of Aboriginal self-government merely because non-Aboriginal people now live there and also rely on this land. Aboriginal control of Canadian affairs provides a discourse which simultaneously recognizes the meaningful participation of Aboriginal people with one another, and with their non-Aboriginal neighbours. It contains a deeper commitment to preserve and extend the special relationship Aboriginal peoples have with the land. It does not abandon age-old
104 See for example: “Lake Huron site is best suited for nuclear wast bunker: OPG report”, online: The Toronto Star <https://www.thestar.com/news/canada/2017/05/30/lake-huron-site-is-best-suited-for-nuclear-waste-bunker-opg-report.html>. 105 Borrows 1999, supra note 96 at 342 (citing Delgamuukw v. The Queen [1997] 153 D.L.R. 193). 106 See, e.g., Adam Gaudry, “The Metis-ization of Canada: The Process of Claiming Louis Riel, Metissage, and the Metis Peoples as Canada’s Mythical Origin” (2013) 2(2) Aboriginal Policy Studies 64-87 (criticizing J.R. Saul’s A Fair Country).
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territorial citizenships merely because non-Aboriginal people are now necessary to preserve the land’s ancient relations. […] Aboriginal culture is not static and, at least in southern Ontario, develops and redevelops through a wider variety of interactions than is recognized in conventional narratives of citizenship. Narratives of Aboriginal political participation should be transformed to reflect this fact.107
This dynamic vision of Aboriginal landed citizenship, and the potential expansion of
membership to others, works against the premature division of labour worked out by the settler
constitutionalism. Instead, Indigenous law presents the possibility of working with robust treaty
notions of shared authority over shared territories in the context of newcomers to the land. It also
presents the power to work against colonial structures that perpetuate a host of problems
discussed in the next chapter. If narratives of Indigenous political participation will transform to
inform and change matters seen to be non-Indigenous, then this will also result in the
transformation of Canadian laws and politics. Beyond the Anishinaabe admission to membership
of individuals and families mentioned above, the larger scale adoption of groups, communities,
and nations via treaty relationships also occurs under Nihiyow (Cree) law.108 These examples
also resonate with the political adoption and widening confederacy practiced by the Mi’kmaw
Nation, the Blackfoot Confederacy, and the Haudenosaunee Confederacy under the
Kairenekowa.109 This deep commitment to preserve and extend the special relationship with the
land – the openness of landed citizenship – speaks to the backdrop of treaty relations then and
now.
Revisiting the question of extending Anishinaabe citizenship in a later discussion of the clan
system, Borrows writes in passing that: “Persons who are not Anishinabek by birth may be
granted citizenship and legal standing to participate in community life through an adopted
107 Borrows 1999, supra note 96 at 342 (emphasis added). See also Rauna Kuokkanen, Reshaping the University: Responsibility, Indigenous Epistemes, and the Logic of the Gift (Vancouver: University of British Columbia Press, 2007). 108 See, e.g., Johnson 2007, supra note 96. 109 Cf. Alfred 1999, supra note 34 at 126 (cautioning against reifying this law in a version reduced to text).
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clan.”110 In a longer discussion in the context of the territorial applicability of Anishinaabe law to
citizens and non-members, Borrows notes the potential to extend citizenship to those who
regularly reside on reserve, thus becoming dual citizens of Canada and a First Nation.111 Borrows
notes the authority under recent treaties recognizing Indigenous authority to make citizenship
decisions pursuant “to the community acceptance process in the constitution”.112 In fact, he
argues that non-citizens living permanently on reserve should be made citizens “if they desire to
associate themselves with us in accordance with our community’s self-determining criteria”.113
Although only provisional in the passage in question, Borrows’ initial formulation is that “…
Indigenous laws are best administered within Canada’s constitutional framework on a territorial
basis, giving strict heed to its broader democratic basis”.114 The ‘broader democratic basis’ is
interesting here, since it potentially refers to the broader democratic basis of Canada and its
constitution as much as it applies to Indigenous nations and their laws (Borrows mentions both
bases earlier in his book). The administration of Indigenous laws ‘within Canada’s constitutional
framework’ is not yet settled. Things remain unsettled due to the abandonment of constitutional
conferences for that purpose, the extension of Canadian citizenship without negotiation,115 and
the inherent limitations within the Canadian framework.116 Since the treaties (informed by
Indigenous laws) underpin the Constitution, the question of what constitutes the supreme ‘law of
110 Borrows 2010a, supra note 3 at 77. 111 Ibid at 157. 112 Ibid at 158. 113 Ibid at 159. 114 Ibid at 162. Borrows also discusses the applicability of Indigenous legal traditions ‘off-reserve’ in wider traditional territories at 163-4. 115 See Heidi Bohaker and Franca Iacovetta, “Making Aboriginal People ‘Immigrants Too’: A Comparison of Citizenship Programs for Newcomers and Indigenous Peoples in Postwar Canada, 1940s– 1960s” (Sep 2009) 90(3) The Canadian Historical Review 427-461 [Bohaker & Iacovetta]. See also Kapashesit, supra note 1. 116 On this last point dealing with importing of s. 1 analysis to s. 35, see, e.g., Jeffery G. Hewitt, “Options for Implementing UNDRIP without Creating Another Empty Box” in UNDRIP Implementation: Braiding International, Domestic and Indigenous Laws (CIGI Special Report, 2017), online: CIGI <https://www.cigionline.org/publications/undrip-implementation-braiding-international-domestic-and-indigenous-laws> at 56-62 [Hewitt 2017].
35
the land’ remains an open one, too. Different nations and Confederacies, such as the
Haudenosaunee, have also continually contested the incorporation and administration of their
laws within Canadian law and constitutionalism.117
1.5 Conclusion
Living Indigenous legal traditions that emphasize treaties as laws of adoption (that are also the
supreme laws of the land) can no longer be ignored in the context of immigration. These
different sources and examples of making and keeping relations can serve as the means for
Indigenous societies to “keep their legal traditions alive and connected to broader normative
bases” through living communities.118 As seen in the next chapter, Canada has worked very hard
to destroy these legal traditions and the Indigenous communities to whom they belong. This
work has been particularly pointed in the context of Canadian Aboriginal law in conjunction with
mass immigration to Canada. Despite Canada’s attempts to usurp the role of host, Indigenous
peoples have persevered and preserved their laws of sharing and caring for the land and one
another. However, it will take the full cooperation of both treaty partners to overcome
conventional notions of state sovereignty. Canadian state sovereignty stymies the full
revitalization of Indigenous legal principles with respect to both entrenched settler society and
more recent newcomers to these lands.
117 See e.g. Rick Monture, We Share Our Matters: Two Centuries of Writing and Resistance at Six Nations of the Grand River (Winnipeg: University of Manitoba Press, 2014). 118 See Borrows 2010a, supra note 3 at 56.
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Chapter 2 State Sovereignty and the Domestication of Indigenous Legal
Relations The simple fact is that, without the treaty, no one other than Indigenous Peoples has the right to live in our land. The International Court of Justice in the Western Sahara case stated that the only way for non-indigenous people to live in the lands of Indigenous Peoples is through a treaty. Everyone who has come to live on Great Turtle Island since contact is living here as a result of a treaty. To discount the treaty or deny the treaty rights of non-Indigenous people is to make illegitimate foreign people’s occupancy of Great Turtle Island. […]
Without the treaties, what legitimate law can the colonizers use to occupy our lands? If Canada gets rid of the treaties, what happens to the treaty rights of the non-indigenous people? Those rights to live in peace in our lands and share our resources become null and void. The logical conclusion to terminating our treaties - if that were legally possible - is that the non-indigenous people would have to vacate our territories. […] Instead, the successor state and its institutions are complicit in trying to downgrade the treaties and the treaty-making process; government officials refer to them as ‘domestic’ treaties119.
Introduction 2What happened to the spectrum of Indigenous legal authority and multiplicity of relations
described in the previous chapter? In short, state sovereignty.
Chapter Two builds on the last chapter by answering how the state came to displace the wealth
of Indigenous legal relations described there. First, I examine a brief definition of state
sovereignty before turning to the mechanisms of Canadian law deployed in the attempt to realize
that definition on these lands. These mechanisms include Canadian constitutional law and,
especially, Canadian Aboriginal law. The latter includes the historical treaties, the Indian Act,
the common law of Aboriginal title, and the negotiation of modern treaties (among other areas). I
mainly focus here on the use of the historical treaties and the Indian Act to consolidate Canadian
sovereignty at the direct expense of Indigenous laws and self-determination. Conventional
notions of state sovereignty inevitably interrupt the revitalization of Indigenous modes of making
119 Sharon Venne, “Treaties Made in Good Faith” in Paul W. DePasquale, ed., Natives & Settlers, Now & Then: Historical Issues and Current Perspectives on Treaties and Land Claims in Canada (Edmonton: University of Alberta Press, 2007) at 5, 10 [Venne 2007].
37
and maintaining relations through treaties and adoption. The final chapter then assesses the
aspirations of Canadian reconciliation through a case study of adoption simultaneously subject to
both Anishinaabe and Canadian law. Canadian sovereignty still dominates the overlap of these
laws through the combined forces of Canadian Aboriginal and immigration law.
State Sovereignty 3
3.1 A Working Definition of (State) Sovereignty
How did settler colonialism and state sovereignty displace Indigenous peoples and the authority
of their laws and legal systems? Following European colonization and settlement, these laws and
systems were severely repressed during the establishment of state sovereignty. Although not
developed in accordance with Indigenous laws, state sovereignty overlaps with key functions
like population powers and treaty-making. The Montevideo Convention on the Rights and Duties
of States (1933) is a convenient shorthand for comparing these powers. Article 1 of the
Convention defines statehood as follows:
The state as a person of international law should possess the following qualifications:
a) a permanent population;
b) a defined territory;
c) government; and
d) capacity to enter into relations with other states.120
Clearly, state sovereignty may not be a useful or appropriate concept for articulating the
demands of Indigenous peoples and nations, either generally or in the context of treaty relations.
120 Convention on the Rights of and Duties of States, Montevideo, 26 Dec. 1993, 165 LNTS 19 (online: http://www.oas.org/juridico/english/treaties/a-40.html). See also, e.g., James Crawford, The Creation of States in International Law (Oxford: Clarendon, 2007) (obviously, Crawford goes into much more detail (including with respect to the aspects of capacity dealing with control, independence, and recognition) but I am using the attributes of statehood here as a shorthand for state sovereignty and a heuristic to compare what Canada has accumulated in order to maintain itself in contrast to what it has taken or negotiated away from Indigenous nations to their detriment).
38
Some have referred to it as an inappropriate concept.121 But sovereignty can be useful as a
comparative aid to understanding minimum factors that allow a political community to exist and
reproduce itself in seeming perpetuity. As asserted by Chief Justice Lamer: “we are all here to
stay”.122 But how, exactly, is a nation here to stay?123 Lands and people are necessary parts of
the answer.124 In a landmark UN study on treaties, Special Rapporteur Martinez noted that
Indigenous peoples:
… have been deprived of (or saw greatly reduced) three of the four essential attributes on which their original status as sovereign nations was grounded, namely their territory, their recognized capacity to enter into international agreements, and their specific forms of government. Not to mention the substantial reduction of their respective populations in many countries around the world, due to a number of factors, including assimilationist policies.125
In the sections that follow, I look briefly at aspects of the statist reduction of these attributes. I
argue that the return or expansion of these attributes turns on the revitalization of Indigenous
laws for making and maintaining relations discussed in the last chapter (i.e. treaties & adoption).
If we are truly all treaty people, then the permanence of Canadian presence and its immigrant
future is tied to the permanence of the treaties and Indigenous peoples.
121 See e.g. Alfred, supra note 34 at at 78-81. More recently, on recognition and the politics of refusal, see: Glen Coulthard, Red Skin, White Masks: Rejecting the Colonial Politics of Recognition (Minneapolis: University of Minnesota Press, 2014); Audra Simpson, Mohawk interruptus: political life across the borders of settler states (Duke University Press: London, 2014). 122 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 at para 186. See also Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (CanLII) online, CanLII <http://canlii.ca/t/g7mt9> at para. 82. 123 See also Asch, supra note 100. See also generally: Christopher Tomlins, Freedom Bound: Law, Labor, and Civic Identity in Colonizing English America, 1580-1865 (New York: Cambridge University Press, 2010) (on ‘manning, planting, & keeping’). 124 See also Martha Stiegman, Honour Your Word (Montreal: Productions Multi-Monde, 2013) (documentary film depicting the struggles of the Algonquins of Barriere Lake on these two fronts and Marylynn Poucachiche’s words on the same). 125 Martinez 1999 UN at para. 105 (emphasis added; citation omitted). Miguel Alfonso Martinez, Study on Treaties, Agreements and Other Constructive Arrangements Between States and Indigenous Populations. Final Report by Miguel Alfonso Martinez, Special Rapporteur. UN Doc. E/CN.4/Sub.2/1999/20, online: UN OHCHR < https://documents-dds-ny.un.org/doc/UNDOC/GEN/G99/137/73/PDF/G9913773.pdf?OpenElement> at para. 105 [Martinez 1999]. As noted by the Special Rapporteur, this Study itself grew out of the earlier, ‘monumental’ work and recommendations of Special Rapporteur José Martinez Cobo in his Study of the Problem of Discrimination Against Indigenous Populations (E/CN.4/Sub.2/1983/21/Add.8), online: UN DESA < https://www.un.org/development/desa/indigenouspeoples/publications/2014/09/martinez-cobo-study/> at paras. 388-392. See also the preliminary report by Special Rapporteur Martinez (E/CN.4/Sub.2/1991/33) at paras. 4 and following.
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3.2 The Capacity to Enter into International Relations
How did treaties go from regulating relations within, between, and beyond Indigenous nations to
“grey law”126 seen as having no force at international law? In short, they were “domesticated” by
the empires and states seeking to benefit from them. Domestication entails efforts by the
Canadian state and society to reduce ongoing, nation-to-nation treaty relations guided by
Indigenous laws to one-time land cessions interpreted solely by state laws and policies.127
In this vein, historian Jim Miller set out three main types of treaty-making traditions with
settlers128:
1) early commercial compacts between Indigenous peoples and chartered corporations that had been granted monopolies and exclusive trade rights by their sponsoring sovereigns, including for the purposes of the fur trade, from the 17th century onwards;
2) treaties of peace, friendship, and alliance, situated within ‘rival networks’ of imperial European powers, from the late 17th century and especially the 18th century; and,
3) territorial treaties governing settlers’ “access to and use of” Indigenous lands, from the later 18th century to the early 20th century, along with the related but distinct formal agreements pursued from the 1970s to now (the so-called “modern treaties”)129.
By starting with the early commercial compacts, Miller marks the beginning of time somewhat
earlier than most accounts. Other examples usually proceed from the Maritime treaties of peace,
friendship, and alliance, to the pre-Confederation treaties in Upper Canada, to the post-
Confederation numbered treaties in the Prairies and beyond (from 1871 to 1923), to the so-called
126 See e.g. Ben Saul, Indigenous peoples and human rights: international and regional jurisprudence (Portland, OR: Hart Publishing, 2016) at 19-21. 127 See, e.g., Isabelle Schulte-Tenckhoff, “Reassessing the Paradigm of Domestication: The Problematic of Indigenous Treaties” (1998) 4(2) R.C.S 239 [Schulte-Tenckhoff 1998]; Isabelle Schulte-Tenckhoff, “Treaties, peoplehood, and self-determination: understanding the language of indigenous rights” in Elvira Pulitano, ed., Indigenous Rights in the Age of the UN Declaration (New York: Cambridge University Press, 2012) at 64-86; John Borrows, “Domesticating doctrines: aboriginal peoples after the Royal Commission” (2001) 46(3) McGill L.J. 615 [Borrows 2001]. See also Martinez 1999, supra note 125 at paras. 191-194; Aimée Craft, Breathing life into the Stone Fort Treaty: an Anishinabe understanding of Treaty One (Saskatoon: Purich Pub., 2013) at 14 [Craft 2013]. 128 Miller, supra note 24 at 4-5. 129 Note Janna Promislow’s criticism of Miller’s typology for excluding epoch-crossing events and adhesions that took place after the 1923 Williams treaties and before the 1975 James Bay Northern Quebec Agreement (e.g. the 1944 and 1956 adhesions to Treaty 6 and the 1930 adhesions to Treaty 9), see: Janna Promislow, “Treaties in History and Law” (2014) 47 UBCLR 1085-1183 at para. 41 (QL).
40
“modern treaties” of comprehensive land claims agreements (e.g. 1975 James Bay and Northern
Quebec Agreement and following).130 Most accounts do not mention the rich history of inter-
Indigenous treaty-making discussed in Chapter One. Aboriginal Affairs and Northern
Development Canada (now “Indigenous and Northern Affairs”) displays the following map:131
Historian Ken Coates tracks the standard trajectory of domestication:
Treaty-making with indigenous peoples began, in the first decades of contact, as accords between nations, designed largely to prevent conflict and to solidify alliances. Over the decades, treaties took on a new role, that of clearing the way for settlements and development and of formalizing the subordination of tribal peoples to the will of the colonial powers or nation-states. Once signed, and despite being assigned central importance by the indigenous leaders and communities, the treaties typically played little practical role.132
130 See e.g. Aboriginal Affairs and Northern Development Canada, Treaty-Making in Canada, “Summaries of Pre-1975 Treaties,” online INAC <http://www.aadnc-aandc.gc.ca/eng/1370362690208/1370362747827>. 131 See “Pre-1975 Treaties and Treaty First Nations in Canada Infographic”, Aboriginal Affairs and Northern Development Canada, online: INAC <online: http://www.aadnc-aandc.gc.ca/eng/1380223988016/1380224163492>. 132 Ken S. Coates, A global history of indigenous peoples: struggle and survival (New York: Palgrave Macmillan, 2004) at 173.
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The transformation takes place across all three of the main treaty types; from being seen as
“accords between nations,” they turn to agreements “formalizing the subordination” of
Indigenous peoples to colonial powers in the interpretation of settler states.133 As noted by
Manitoba historian Jean Friesen, “The negotiators viewed the treaties as finalizing, once and for
all, the clearing of title while, for the Anishinabe, it was ‘the beginning of a continuing relation
of mutual obligation’”.134
The implications of this divergence are far-reaching. At Saskatchewan’s Office of the Treaty
Commissioner, Justice David Arnot set out the key points of contrast in two perspectives on
treaties:
Treaty First Nations in Saskatchewan have always maintained that the treaties are covenantal in nature. […] The unwavering conviction of the Treaty First Nations is that the treaties include not only the written texts recorded by the Crown and the oral agreements made at the time of each treaty, but also their very spirit and intent, and that the treaties govern every aspect of their relationship with the Crown and, through the Crown, with all non-First Nations peoples. In this view, the treaties are holistic in their relevance to all dealings between the Parties and have political, legal and sacred status. It is through these agreements with the Crown that the First Nations gave their consent to sharing their territories with newcomers from overseas and their descendants, and that a unique and eternal relationship between the First Nations and the Crown was forged.
For its part, the Crown entered into the treaties for a complex set of reasons, including establishing peaceful relations with Treaty First Nations, obtaining First Nations’ consent to the settling of their territories by European populations, and ensuring the First Nations would make a transition into the new economy. There is a fundamental Crown policy of consensual dealings and respect for First Nations and treaty rights, much of which is embodied in the common law. But to this day, the Government of Canada has developed no general policy guidelines for use in its treaty relations with First Nations.135
133 Ibid. 134 Craft 2013, supra note 127 at 22 (citing Jean Friesen, “Magnificent Gifts: the Treaties of Canada with the Indians of the Northwest, 1869-76” (1986) 5(1) Transactions of the Royal Society of Canada 41 at 49). See also Friesen 1986 at 50 (“The new settlers who flooded in over the next couple of decades, principally from Ontario but also Icelanders and German-speaking Mennonites, survived their pioneer years because the Indians permitted them access to the fish and game resources.”). 135 David Arnot, Treaty Implementation: Fulfilling the Covenant (Saskatoon, Sask.: Office of the Treaty Commissioner, 2007) at 4-5 (notes omitted). Cf Federation of Saskatchewan Indian Nations, Response to the Recommendations in Treaty Implementation: Fulfilling the Covenant Report (Saskatoon, Sask.: FSIN 2007) [FSIN 2007].
42
The covenantal, permanent, and sharing approach outlined in holistic treaties with political,
legal, and sacred status stands in stark contrast to an approach predicated on the Crown
privileging written texts and grudging developments in Canadian common law. Certainly, it is
not in keeping with the Federation of Saskatchewan Indian Nations’ (FSIN, now Federation of
Sovereign Indigenous Nations) important response to the Office of the Treaty Commissioner’s
(OTC) 2007 report on treaty implementation.
Questions of sovereignty and perpetuity were brought up by the FSIN directly,136 which
contested the capture of treaties by state sovereignty as much as it re-asserted the treaties’
international stature and that First Nations’ sovereignty will continue forever.137 Specifically,
the FSIN response to the Treaty Commissioner’s recommendations and vision, that treaties “find
their rightful place in the Canadian state”, was that this vision was “inconsistent with First
Nations’ assertion of sovereignty”’ and one that they did not accept.138 Instead, the FSIN Treaty
Implementation Principles contemplate a different kind of sovereignty, visualized through a tree.
This sovereign tree is characterized by: a relationship with Mother Earth; sovereign occupation
of North America with their own laws, institutions, and jurisdiction; sovereignty to enter into
treaty and other political accords with other nations; affirmation of sovereignty through the
Royal Proclamation of 1763 and the Treaty process; sovereignty that will continue forever; the
international stature of Treaty; the greater validity of the spirit and intent of treaties over their
written text; and, Canada’s ongoing obligation to fulfill this spirit and intent.139 While not
premised on independent statehood, these principles reflect the attributes of land, laws,
136 This is one example among many, though the Federation and its articulation of treaty peoplehood is a very influential one. See also Cardinal & Hildebrandt, supra note 31. 137 FSIN 2007, supra note 135. 138 Ibid at 4 (of 18). 139 Ibid at ii, 1 (of 18).
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government, people, and international relations mentioned above. They also add other important
factors like stewardship of the land and oral traditions. Most importantly here, the FISN vision
connects the continuation of Indigenous lands and laws to the maintenance of sovereignty.
The reduction of these treaties to internal Canadian matters subject to Canadian laws and courts
thus strikes at the heart of Indigenous survival. Isabelle Schulte-Tenckhoff elaborated on this
44
problem almost 20 years ago: “Treaty adjudication in its present form illustrates an institutional
bias inherent in the paradigm of domestication, for it favors one treaty party, the state, in every
instance.”140 The process of domestication remains hugely contested and forms one of the
biggest challenges to treaty interpretation and broader reconciliation today.
Systemic biases across the various treaty types have been discussed comprehensively
elsewhere, but I will provide a few examples here. For instance, a Canadian court notoriously
pronounced in 1929 that “… the Indians were never regarded as an independent power… [and
the 1752 Treaty between the British and the Mi’kmaq] is not a treaty at all and is not to be
treated as such; it is at best a mere agreement made by the Governor and council with a handful
of Indians giving them in return for good behaviour food, presents, and the right to hunt and fish
as usual”.141 In relation to a later interpretation of treaties of peace and friendship in New
Brunswick, Borrows argues that “the status quo is preserved and the Crown is not disturbed in its
use or possession of land, even though it has not legally justified its assumed pre-eminent
position.”142 Where the Court of Appeal there found insufficient evidence to ground commercial
harvesting rights in the 1990s, Borrows notes that this evidentiary gap “surely must also lead to
the conclusion that it would be conjecture to assume that the Crown has superordinate rights.”143
However, these “values and assumptions of imperial treaty makers”144 remain unquestioned such
that Indigenous “rights under treaties are domesticated and placed in a subordinate position
140 Schulte-Tenckhoff 1998, supra note 127 at 257. 141 Rex v. Syliboy, [1929] 1 D.L.R. 307 (Co. Ct.) at 313-314 (Patteson J.) (emphasis added). See also Attorney-General of Ontario v Attorney-General of Canada: Re Indian Claims, [1897] A.C. 199 (P.C.). 142 Borrows 2001, supra note 127 (contrasting these examples with the 1996 recommendations of the landmark Royal Commission on Aboriginal Peoples (RCAP) and at 625 (in reference to R. v. Peter Paul (1998), (Sub nom. R. v. Paul) 158 D.LR. (4th) 231, [1998] 3 C.N.L.R. 221 (N.B.C.A.)). 143 Ibid. 144 Ibid (citing: Canada, Report of the Royal Commission on Aboriginal Peoples, Vol. 2: Restructuring the Relationship (Ottawa: Supply and Services, 1996) [RCAP]).
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relative to the Crown.”145 Similar domesticating constraints are evident in the interpretation of
the sacred numbered treaties “that cover most of northern and western Ontario, the three prairie
provinces, and the newly realigned Northwest Territories.146” These treaties are open to state
interpretations that subordinate Indigenous treaty rights (like using land for hunting or spiritual
purposes) to wider Canadian objectives, including settlement and “visible non-Aboriginal
development”.147
Beyond adjudication, this subordination also occurs at the political level, where Indigenous
peoples “view peace and friendship treaties as creating bilateral relationships” in contrast to
“non-Aboriginal governments or courts [that assume] the power to determine ultimate
allocations of lands and resources”.148 The so-called “modern treaties” are no less subordinated,
subject as they are to Canadian constitutional law, courts, and doctrine. The Nisga’a Final
Agreement is just one example, with: 1) its introduction of fee simple lands that may be alienated
in the future, 2) the conversion and replacement of traditional House governance with a new
government, 3) the paramountcy of provincial and federal laws over Nisga’a laws, 4) the
jurisdiction of Canadian courts over Nisga’a institutions and interpretive disputes arising from
the Final Agreement, and 5) the collection of individual Nisga’a taxes towards general Canadian
revenues.149 The Nisga’a Final Agreement also stipulates that its citizenship provisions do not
impact Canadian immigration law or Indian Act status.150 The combination of historical treaties
interpreted to “significantly erode the land base” with new treaties largely bound to “non-
145 Ibid (emphasis added). 146 Ibid. 147 Ibid at 630-631 (citing: R. v. Horseman, [1990] 1 S.C.R. 901; R. v. Badger, [1996] 1 S.C.R. 771). 148 Ibid at 630. 149 Ibid at 636 (referring to Nisga’a Final Agreement (Aug. 4, 1998) [NFA]). 150 NFA at 39-40 (Nisga’a Citizenship).
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Aboriginal structures, values, and processes”151 does not bode well for countering the process of
domestication. In addition to treaty relations, similar domestication took place with Indigenous
standing (at international fora) and with Indigenous lands and governance systems.152 As with
their Confederacy and Great Law (Kaianerekowa) discussed in the last chapter, the
Haudenosaunee provide one of the most well-known examples here, too.
3.3 Government A permanent police presence at Grand River, the replacement of the hereditary council by a compliant elective one, and the use of informers all ensured a degree of official control at the reserve level. On the international front, the services of the British diplomatic corps were effectively employed to intimidate governments sympathetic to the Indians.153
It is impossible to succinctly recount how Canada replaced Indigenous governments and took
Indigenous lands in order to cement its own sovereign status. However, one story that
encapsulates many of these elements took place right at the same time that Canada was seeking
to assert its sovereign international status, “which before 1919 had in no sense existed”.154 As
noted in the last chapter, the Haudenosaunee Confederacy has had a ‘Two Row Wampum’ treaty
with imperial and colonial governments for over 400 years. The first treaty was with Dutch
settlers in 1613 and was followed by a Covenant Chain treaty with the British in 1677. The Two
Row and Covenant Chain treaties served as key frameworks for all of the treaties that were to
151 Borrows 2001, supra note 127 at 640. 152 See, for example, Amar Bhatia, “The South of the North: Building on Critical Approaches to International Law with Lessons from the Fourth World” (2012) 14 Oregon Review of International Law 131 (references to Levi General (Deskaheh) and the Haudenosaunee (Six Nations) Confederacy’s 1920’s quest for status at the League of Nations, foiled by Canada and Great Britain) [Bhatia 2012b]. See also the trio of international arbitration decisions in the 1920s and 30s relating to domestication in and out of treaty relations in James Anaya, Indigenous Peoples in International Law (Oxford: Oxford University Press, 1996) at 23 (Cayuga Indians (Great Britain) v. United States, VI R. Int’l. Arb. Awards 173 (1926); Island of Palmas (U.S. v. Neth.), II R. Int’l Arb. Awards 831 (1928); Legal Status of Eastern Greenland (Den. v. Nor.), 1933 P.C.I.J. (ser. A/B) No. 53) but cf Western Sahara, Advisory Opinion, 1975 I.C.J. 12 (rejecting terra nullius approach)). 153 E. Brian Titley, A Narrow Vision: Duncan Campbell Scott And The Administration Of Indian Affairs In Canada (Vancouver: UBC Press, 1986) at 134. 154 Richard Veatch, Canada and the League of Nations (Toronto: UTP, 1975) at 10. This time also overlapped with the moment that international law, thanks to the League of Nations, became more than “simply a European law” (see Mohammed Bedjaoui, Towards a New International Economic Order (New York: Holmes & Meier, 1979) at 50).
47
follow, including the 1764 Wampum at Niagara that sanctioned the Royal Proclamation of
1763.155 The Two Row Wampum symbolizes the agreement that neither the Haudenosaunee nor
the British “will make compulsory laws or interfere in the internal affairs of the other.”156 The
Six Nations’ long alliance with the imperial British included some of their member Nations
fighting on their side during the war with the colonies. It also included the 1784 Haldimand
Treaty negotiating land for the Six Nations on the banks of the Grand River (purchased from the
Mississaugas).157 Unfortunately, through questionable sales and cessions to the Crown, some of
these lands were used for British settlers with the subsequent trust funds lost in a failed
investment without Six Nations consent.158 In the sunset of the military aspects of their alliance,
the Haudenosaunee Confederacy found itself subject to the colonial pretensions of Canadian
jurisdiction under the British North America Act of 1867.159 Section 91(24) placed “Indians and
lands reserved for Indians” under federal jurisdiction and provided the mandate for the
successive Indian Acts aimed at their “civilization and assimilation”.160 Among many other
things, the Indian Act provided for: 1) the creation of Indian Act status and highly gendered
exceptions to entitlement to it; 2) the management of Indian lands and resources; 3) voluntary
and then compulsory Indian enfranchisement and thus forced removal of Indian Act status and
reserve land; 4) registration and conscription for World War I; 5) the setting aside and
mortgaging of reserve lands for returning veterans; 6) enforcement of penal liquor laws and
imprisonment; and, 7) the imposition of an elected band council government (subject to a
155 See generally John Borrows, “Wampum at Niagara: The Royal Proclamation, Canadian legal history, and self-government” in Michael Asch, ed., Aboriginal and treaty rights in Canada: essays on law, equity, and respect for difference (Vancouver: UBC Press, 1997) [Borrows 1997]. 156 See Tehanetorens, supra note 35 at 11. 157 Bhatia 2012b, supra note 152 at 163 (and references therein). 158 Ibid. 159 Constitution Act, 1867, 30 & 31 Vict, c 3, s. 91(24). 160 Ibid. For the Act devolving imperial authority to the colonial government, see: An Act respecting the Management of Indian Lands and Property, S.C. 1860, c. 151.
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Canadian “Indian Agent”) to replace the traditional Haudenosaunee hereditary council
established under the Kaianerekowa (Great Law of Peace).161
Before the elected council was imposed, Levi General was installed as a new hereditary chief
(Deskaheh) of the Cayuga Nation of the Six Nations in 1917 by Louise Miller (matron of the
Young Bear Clan).162 In relation to earlier grievances including the mishandling of trust funds
from lands that were taken, Deskaheh was chosen as the Speaker and deputy for the hereditary
Council when it sought aid from the imperial government. Although Deskaheh petitioned King
George V in August of 1921, then-Colonial Secretary Winston Churchill rebuffed this attempt in
a reply to the Governor General of Canada: “the matters submitted within the petition lie within
the exclusive competency of the Canadian Government”.163 While the Confederacy wanted to
press the question of Six Nations’ status politically in Ottawa, “the door was closed in [their]
faces.”164 The Supreme Court of Canada was also blocked to the Six Nations due to the need to
seek leave from the Governor General’s office, which in turn deferred to a Department of Indian
Affairs decision based on a negative opinion from the Department of Justice.165 While
subsequent negotiations sought out an impartial tribunal to examine the question of Six Nations
sovereignty, Canada only offered up judges from, first, the Ontario Supreme Court and (later)
any British subject.166 In combination with an RCMP raid, spurious liquor violation arrests, and
161 See Bhatia 2012b supra note 152 at 163-165 (and related references). 162 Donald B. Smith, “Deskaheh (Levi General)” (2005) 15 The Dictionary of Canadian Biography 1921-1930, online: DCB < http://www.biographi.ca/en/bio/deskaheh_15E.html>. 163 Douglas Sanders, “Aboriginal Rights: The Search for Recognition in International Law” in Menno Boldt, J. Anthony Long & Leroy Little Bear, eds., The Quest for Justice: Aboriginal Peoples and Aboriginal Rights (Toronto: UTP, 1985) at 292-304 [Sanders 1985]. 164 Deskaheh, “Last Speech of Deskaheh - Address on WHAM Radio in Rochester, N.Y. (Mar. 10, 1925)” in Basic Call to Consciousness (Mohawk Nation via Rooseveltown, N.Y.: Akwesasne Notes, 1978) at 25-33. 165 Bhatia 2012b supra note 152 at 164. 166 Ibid (in part to exclude Deskaheh’s American lawyer, George Decker).
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the establishment of an RCMP garrison on site, Deskaheh and the Six Nations sought out
international (non-imperial) recourse in Geneva at the League of Nations.167
The appeal from Six Nations sought to place a number of items on the League Council’s agenda.
They requested relief including: recognition of their independent right of home rule according to
their treaties; a just accounting of misappropriated trust funds and interest from the Imperial
Government and the Dominion of Canada; and, freedom of transit for the Six Nations across
Canadian territory to and from international waters.168 On the basis of their centuries-old Two
Row Wampum relationship with Dutch settlers, Deskaheh was successful in having the
Netherlands forward the petition to the Secretary General of the League. Unfortunately, and
despite Deskaheh’s wider efforts with the public in Geneva, the Six Nations’ petition for
sovereign status was never formally placed on the League Council’s agenda. The British Foreign
Office criticized the Netherlands for its “uncalled for interference in [the] internal affairs of
Canada.”169 The acting Secretary General agreed to “‘enterrer’ [bury] the matter” in large part
due to Canada’s vehement denial of League jurisdiction.170 Among other charges, Canada noted
that the Six Nations were not self-governing peoples and that discussing treaties with them
would be like talking of “a treaty alliance with the Jews in Duke Street or with the French
emigrants who have settled in England.”171 The official response also noted that the recognition
of the independent or sovereign status of Indians in treaties of cession, not used by the Dominion
167 Bhatia 2012b, supra note 152 at 165-166. 168 See Deskaheh, The Redman’s Appeal for Justice (Aug. 6, 1923) online: <http://law.lib.buffalo.edu/collections/berman/pdfs/Redmanappeal.pdf> at 1, 13, 20 (this last point related to Jay Treaty rights secured under that treaty in 1796). 169 Veatch, supra note 154 at 94. 170 Ibid. 171 See Statement of Government of Canada respecting the “Appeal of the ‘Six Nations’ to the League” (June 1924) 5 League of Nations Official Journal 829 [Dec. 27, 1923]. Note that while this statement was sent from Joseph Pope (then Canada’s Under-Secretary of State for External Affairs), it was actually written by Duncan Campbell Scott (see Titley, supra note 153 at 122).
50
of Canada in the international law sense, would mean “the entire Dominion would be dotted with
independent or quasi-independent Indian States ‘allied with but not subject to the British Crown’
[. . .] such a condition would be untenable and inconceivable.”172 By way of an Order-in-Council
on September 17, 1924, the Canadian government also mandated that an elected band council be
imposed at Six Nations pursuant to the Indian Act. The Six Nations’ hereditary council was
deposed and “free elections” were held under armed guard and the dark cloud of a large boycott
where less than 30 ballots were cast on the most densely populated reserve in Canada.173 In part
motivated by Canadian disdain for the Hereditary council, and the matriarchal role in selecting
Chiefs, the election had the added effect of “depriving Deskaheh of his right to speak for the
confederacy, at least according to Canadian law.”174 Considered a criminal in Canada, Deskaheh
was forced to the U.S. where he took refuge with Tuscarora chief Clinton Rickard until his death
in 1925.175
The story of the Six Nations’ quest for status ranges from colonial Ottawa to imperial London to
nascent inter-state international law in Geneva. The Haudenosaunee Confederacy were hampered
at every turn by the notion that their “grievances were a domestic concern of Canada and hence
outside the League’s [or London’s] competency”.176 At the same time, they were then forced to
172 Ibid. 173 Carl Carmer, Dark trees to the wind: a cycle of York State years (New York: W. Sloane Associates, 1949) at 110-11; Grace Li Xiu Woo. “Canada’s Forgotten Founders: The Modern Significance of the Haudenosaunee (Iroquois) Application for Membership in the League of Nations” (2003) Law, Social Justice & Global Development Journal, online: LSJGDJ <http://elj.warwick.ac.uk /global/03-1/woo.html>; Titley, supra note 153 at 132. 174 Sanders 1985, supra note 163 at 300. 175 Carmer, supra note 173 at 114-5. Note that the Six Nations did not stop their attempts to draw international attention to question of their sovereignty and self-determination. See Johnston 1986, supra note 35 at 23 (discussing 1945 submissions to United Nations reps in S.F.); Sanders, supra note 163 at 487 and following (Six Nations’ delegation to the UN in 1945, the ILO Convention in 1957, and advocacy around 1960s extension of the vote in part to stymy politically embarrassing comparisons between Canada and apartheid South Africa). See also: Sid Hill, “My Six Nation Haudenosaunee passport is not a ‘fantasy document’” The Guardian (Oct. 30, 2015), online: < https://www.theguardian.com/commentisfree/2015/oct/30/my-six-nation-haudenosaunee-passport-not-fantasy-document-indigenous-nations>. 176 Anaya 1996, supra note 152 at 57.
51
split community energies and allegiances between an elected, funded council and the unfunded
hereditary one. All of this took place on an ever-shrinking land base subject to the Indian Act and
its draconian provisions for extinguishing Indian Act status. Having successfully domesticated
the Six Nations’ claims, Canada then left them without recourse to Canadian courts or counsel.
The Canadian government amended the Indian Act in 1927 to make it “an offence to solicit or
receive funds from any Indian for the purpose of prosecuting an Indian claim.”177 This
amendment “effectively chilled any legal initiatives to advance the Indian land claim movement”
until the amendment was finally repealed in 1951.178 But by then it would already be much too
late. From 1896-1914, Canada “was admitting more immigrants than in any preceding or
subsequent eighteen year period”.179 By 1912, “Canada’s total population [had] increased by
almost thirty-five per cent [… and] a million immigrants flooded the three prairie provinces and
British Columbia.”180 By 1921, immigration “had successfully populated the country.”181
Indigenous attempts to press land claims and treaty rights would have to contend with settlers’
177
See: The revised Indian Act, R.S.C. 1927, c. 98, s149A. Although protection of Indians from unscrupulous lawyers was the purported reason for the amendment, the Royal Commission noted that: “The true reason probably had more to do with the desire of federal officials to reduce the effectiveness of Indian leaders such as Fred Loft and of organizations such as the Allied Tribes of British Columbia and the Six Nations Council. These groups had already proven troublesome to Indian affairs officials because of their insistence that their unresolved land claims be dealt with. [. . .] The effect of this provision was not only to harass and intimidate national Indian leaders, but also to impede Indians all across Canada from acquiring legal assistance in prosecuting claims until this clause was repealed in 1951. The claims of most British Columbia Indians as well as those of the Six Nations are still outstanding—as are hundreds of others.” (Canada. Royal Commission on Aboriginal Peoples. Report of the Royal Commission on Aboriginal Peoples, Vol. 1: Looking Forward, Looking Back (Chapter 9 – the Indian Act), online LAC <http://www.collectionscanada.gc.ca/webarchives/20071207032318/http ://www.ainc-inac.gc.ca/ch/rcap/sg/sg25_e.html#89>). 178 Jackson 2005, supra note 10 at 317. 179 Ninette Kelley and Michael Trebilcock, The making of the mosaic: a history of Canadian immigration policy, 2nd ed (Toronto: University of Toronto Press, 2010) at 163 [Kelley & Trebilcock]. 180 See: John Leslie and Ron Maguire, eds., The Historical Development of the Indian Act, 2nd ed (Ottawa: Treaties and Historical Research Centre, INAC, 1978) at 105-106 (the impact of immigration and WWI) [Leslie & Maguire]. 181 David Scott FitzGerald and David Cook-Martin, Culling the Masses: the democratic origins of racist immigration policy in the Americas (Cambridge, Mass.: Harvard University Press, 2014) at 159.
52
“insatiable”182 demands for land and all of the “visible non-Aboriginal development”183 that
came with them.
3.4 A Defined Territory and a Permanent Population Indian lands within the colonial jurisdictions were subject to remarkably similar pressures. Everywhere the tide of immigration resulted in encroachments on Indian lands. Impatience with traditional Indian patterns of land use, zeal for development and unadulterated greed for land ensured, at the colonial level, a solicitude for squatters and a corresponding disregard for Indian land rights.184
Canada’s approach to the treaties first recognized and then later renounced Indigenous laws
about making and maintaining relations. This treaty two-step allowed the nascent state to pursue
its tripartite Indian policy: the control of lands, government, and children.185 In turn, this policy
served the larger goals of Confederation and nation-building, namely territorial expansion,
agricultural settlement, and the construction of a national railway.186 Having discussed the
domestication of treaties, the foreclosure of international advocacy, and the replacement of
Indigenous government, this section turns to two other attributes of sovereignty: a permanent
population and a defined territory. The domesticated treaties facilitated the establishment of the
permanent population and defined territory necessary to ensure Canadian sovereignty. At the
same time, Canada also fostered the precarity of Indigenous populations amidst shrinking
territories.
182 Leslie & Maguire, supra note 180 at 105. 183 Borrows 2001, supra note 127 at 631. 184 Darlene Johnston, The Taking of Indian Lands in Canada: Consent or Coercion? (Saskatoon: University of Saskatchewan Native Law Centre, 1989) at 90-91 [Johnston 1989]. 185 See e.g. Jean Barman, The West beyond the West: a history of British Columbia, 3rd ed (Toronto: University of Toronto Press, 2007) at 169 and following [Barman 2007]. 186 See, e.g., Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12 at paras. 25-26 [Daniels].
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How did the treaties dispossess?187 Comprehensive studies have been conducted from the
perspectives of Canadian history and Indigenous legal history, including attempts to compare
these competing sets of views.188 These treaties emerge against the backdrop of the Royal
Proclamation of 1763 (October 7, 1763)189, which has sometimes been called the ‘Indian Magna
Carta’ or ‘Indian Bill of Rights’. In the aftermath of the Treaty of Paris and Pontiac’s uprising, it
set out a lands policy meant to restrain settlers:
The ultimate safeguard of Indian land rights was to be the purchase procedure which, arguably, was intended to apply to all unceded lands in Indian possession. The two critical aspects of this procedure are the Crown monopoly over the acquisition of Indian lands (with the exception of lands within the boundaries of a proprietary government) and the consent of the Indians concerned.190
The Royal Proclamation only gained legitimacy and authority with Indigenous nations following
the 1764 Treaty or Wampum at Niagara. This massive gathering of chiefs, Nations, and the
imperial Crown signified Indigenous assent to proceed with treaty-making under Indigenous
legal systems and principles, including those of the Two-Row Wampum.191 The process of
domestication excised this wampum constitutionalism of Niagara and left only the textual
guarantees from the Royal Proclamation. These guarantees paled in the face of imperial
devolution and colonial settlement. As noted above, responsibility for Indigenous peoples was
transferred from imperial to local governments following the decline of Indigenous military and
demographic power. In turn, local governments from the Maritimes to Quebec to Upper Canada
187 See also Cole Harris, “How Did Colonialism Dispossess? Comments from an Edge of Empire” (2004) 94(1) Annals of the Association of American Geographers 165-182. 188 See Miller, supra note 24. See also: Richard T. Price, ed., The Spirit of Alberta Indian Treaties, 3rd ed (Edmonton: University of Alberta Press, 1999); John S. Long, Treaty no. 9: making the agreement to share the land in far northern Ontario in 1905 (Montreal: MQUP, 2010); Arthur Ray, Jim Miller & Frank Tough, eds. Bounty and Benevolence: a history of Saskatchewan Treaties (Montreal: MQUP, 2000); Treaty 7 Elders, supra note 28. 189 Royal Proclamation of 1763, reprinted in R.S.C. 1985, App. II, No. 1, 1. 190 See Johnston 1989, supra note X at 6-7 (emphasis added). On the ‘Indian Bill of Rights’ label, Johnston cites: St. Catharines Milling and Lumber Company v The Queen (1887), 13 S.C.R. 577 at 652, 2 C.N.L.C. 441 at 516, per Gwynne J. She also notes its recognition in section 25 (non-derogation clause) of the Canadian Charter of Rights and Freedoms. 191 See e.g. Borrows 1997, supra note 155.
54
were either hard-pressed or solicitous with squatters to ignore or allow settlements contrary to
the Proclamation. These settlements were then legitimized afterwards through inaction and local
(as opposed to imperial) government legislation192. When compliant with the Proclamation, if not
the Treaty at Niagara, the initial treaties alienated traditional lands and pushed Indigenous
peoples to “remote regions.193” Later treaties were then used to acquire or reduce the remaining
reserve lands to which Indigenous peoples had been pushed. Despite the Proclamation showing
that “territorial rights akin to those asserted by sovereign Princes are recognized as belonging to
the Indians,” the commissioners appointed to look in to Indian affairs in 1856 were told to do so
“without impeding the settlement of the country”.194 As Johnston notes, the prioritization of
white settlement “inevitably meant the diminution of the territorial rights of Indians.”195
Since they coincided with the peak of immigration to Canada, I turn now to the eleven post-
Confederation numbered treaties negotiated from 1871 to 1923. The lands relevant to the
numbered treaties are visible in light green in the government map below:196
192 Johnston 1989, supra note 184 at 15-16 (“But the Royal Proclamation of 1763 has long since been forgotten and the imperial authorities had long since abdicated their responsibility for the Indians to the local government.”). See also generally Alain Beaulieu, “The Acquisition of Aboriginal Land in Canada: The Genealogy of an Ambivalent System (1600-1867)” in Saliha Belmessous, ed., Empire by Treaty: Negotiating European Expansion, 1600-1900 (Oxford: Oxford University Press, 2015). 193 Johnston 1989, supra note 184 at 48-51. 194 Ibid at 52-53 (quoting “Report of the Special Commissioners appointed to Investigate Indian Affairs in Canada,” Journals of the Legislative Assembly of Canada, 1858, App. No. 21, Part III). 195 Ibid. Johnston also speculates here that the commissioners’ despair at protecting reserve lands from encroachment may have been “calculated to make regulated settlement seem like the only alternative to unregulated dispossession” (53). The backdrop of different and competing land uses also informed these decisions (53). 196 See INAC, Maps of Treaty-Making in Canada, Pre-1975 Treaties of Canada, online INAC <https://www.aadnc-aandc.gc.ca/DAM/DAM-INTER-HQ/STAGING/texte-text/htoc_1100100032308_eng.pdf>
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The preamble to Treaty One from 1871 (the “Stone Fort” Treaty) includes the following:
“…. And whereas the said Indians have been notified and informed by Her Majesty’s said Commissioner, that it is the desire of Her Majesty to open up to settlement and immigration a tract of country bounded and described as hereinafter mentioned, and to obtain the consent thereto of her Indian subjects inhabiting the said tract and to make a treaty and arrangements with them, so that there may be peace and good will between them and Her Majesty, and that they may know and be assured of what allowance they are to count upon and receive, year by year, from Her Majesty’s bounty and benevolence.”197
The bold language above serves as the boilerplate of settler colonialism in the text of all of the
other numbered treaties. While the 1871 Treaty Two (Manitoba Post) contains the exact same
language, Treaty Three (North-West Angle) expands the language to the following: “… that it is
the desire of Her Majesty to open up for settlement, immigration, and such other purposes as
to Her Majesty may seem meet, a tract of country bounded and described as hereinafter
197 Alexander Morris, The Treaties of Canada with the Indians of Manitoba and the North-West Territories, including the negotiations on which they were based, and other information relating thereto (Toronto: Coles, 1971) [1880] at 313 [Morris] (emphasis added).
56
mentioned”.198 In 1874, Treaty Four (the Qu’appelle Treaty) adds on to this clause: “… that it is
the desire of Her Majesty to open up for settlement, immigration, trade and such other purposes
as to Her Majesty may seem meet”.199 Treaty Five in 1875 (the Lake Winnipeg Treaty) and
Treaty Six in 1876 (Forts Carlton and Pitt) both use the same language as Treaty Three, “to open
up for settlement, immigration and such other purposes as to Her Majesty may seem meet”.200
Treaty Seven in 1877 (Blackfoot Treaty) has its own expansive variant on this formula: “… that
it is the desire of Her Majesty to open up for settlement, and such other purposes as to Her
Majesty may seem meet”.201 Concluded in 1899, Treaty Number Eight uses even broader
language: “And whereas, the said Indians have been notified and informed by Her Majesty’s said
Commission that it is Her desire to open for settlement, immigration, trade, travel, mining,
lumbering, and such other purposes as to Her Majesty may seem meet a tract of country
bounded and described as hereinafter mentioned”.202 Treaties Nine (1905 James Bay Treaty),
Ten (1906), and Eleven (1921) all use the same preamble language as in Treaty 8.203
These shifting preambles stemmed from the need to fulfill the promise of a transcontinental
railroad (exchanged for British Columbia’s entry to Confederation) and to pursue settlement
goals. In relation to Treaty One, Morris notes that:
The Indians in Manitoba […] were full of uneasiness, owing to the influx of population, denied the validity of the Selkirk Treaty, and had in some instances obstructed settlers and surveyors. In view of the anxiety and uneasiness prevailing, [Indian Commissioner Simpson and others] were of opinion ‘that it was desirable to secure the extinction of the Indian title’.204
198 Ibid at 321 (emphasis added). 199 Ibid at 330, emphasis added. 200 Ibid at 343, 351. 201 Ibid at 368. 202 Robert A. Reiter, The Law of Canadian Indian Treaties (Edmonton: Juris Analytica, 1995) at 137-138 (emphasis added) [Reiter]. 203 Ibid at 170. 204 Morris, supra note 197 at 25-26 (see also at 33 (citing Archibald’s report on the contested authority of the Indigenous signatories to the earlier Selkirk Treaty)).
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Lieutenant-Governor Archibald’s report from July 29, 1871, also underscores this pressure:
We told them that whether they wished it or not, immigration would come in and fill up the country; that every year from this one twice as many in number as their whole people there assembled would pour into the Province, and in a little while would spread all over it, and that now was the time for them to come to an arrangement that would secure homes and annuities for themselves and their children.205
Similarly, Commissioner Simpson’s report from May 3, 1871, mentions this push-pull pressure:
… the Indians were anxiously awaiting my arrival, and were much excited on the subject of their lands being occupied without attention being first given to their claims for compensation. Amongst the settlers, also, an uneasy feeling existed, arising partly from the often-repeated demands of the Indians for a treaty with themselves, and partly from the fact that certain settlers in the neighbourhood of Portage la Prairie and other parts of the Province, had been warned by the Indians not to cut wood or otherwise take possession of the lands upon which they were squatting.206
This ‘uneasy feeling’ amongst the squatting settlers prompted an editorial in The Manitoban at
the time: “The Indians are confident that now a permanent treaty is to be made, and are ready to
make it […] Why keep the Settlement in suspense; why place the lives of the people in jeopardy
by such tardiness; and why leave the great impediment to immigration removed?”.207 Settler
jeopardy and the desire for closure (to “have done with it”) have resonated through the centuries,
from the pre-Confederation treaties to the numbered treaties up to our current context. As noted
by Indian Affairs:
Accompanying western settlement were massive construction of railway lines and roads, emergence of cities and towns, and an insatiable demand for agriculture land. Many Indian reserves were substantially reduced in size during this time, yet Indian people did not appear to realize any social or economic benefit. […] By 1906 settlement in Canada was encroaching on formerly isolated reserves. […] By 1908, the influx of immigrants into the prairie provinces prompted the Department to modify its policies protecting undeveloped Indian reserves.208
205 Ibid at 34 (emphasis added). 206 Ibid at 37 (emphasis added). On the wealth of the lands and waters, their fertility, and how the ‘settlers from the Provinces in Canada and elsewhere are pushing their way beyond the limits of the Province of Manitoba’, see Morris at 42-43 (citing Commissioner Simpson’s report of May 3, 1871). Commissioner Simpson also notes that while “many years will elapse before they can be regarded as a settled population - settled in the sense of following agricultural pursuits,” the Indians had started small cultivation and working for white farmers (Morris 42-43). 207 Craft 2013, supra note 127 at 44 (quoting the Manitoban 1871 at 1, as transcribed by the Manitoba Treaty and Aboriginal Rights Research Center 1970). 208 Leslie & Maguire, supra note 180 at 105-106 (emphasis added). See also Johnston 1989, supra note 184 at 93 (on the steady deterioration of quality of Indian consent to alienation of reserve lands, especially when in proximity to urban centres of an arbitrary population size (e.g. Songhees experience) and in the widely expanded expropriation powers for the ‘public’ interest).
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This encroachment shows the direct connections between treaty negotiation, the entry of settlers,
the domestication of the treaties, and the corresponding diminishment of associated treaty rights.
As noted above: “Between 1896 and 1914, more than 3 million people emigrated to Canada
(many from central and southern Europe), and dramatic growth was experienced in agricultural,
manufacturing, and service industries. Cities mushroomed across the country, and the population
of the prairies increased by close to 1 million in the first decade of the century.”209 This
combination of lands and people that Canada accomplished through the treaties was also made
possible by its immigration and Indian Acts.
While the British North America Act brought “Indians and lands reserved for Indians” under
federal jurisdiction with Confederation in 1867, it also gave the federal government exclusive
jurisdiction over “Naturalization and Aliens”. The BNA Act gave the federal government
concurrent jurisdiction with provincial governments over immigration and agriculture, with
federal authority trumping the provinces in cases of conflict.210 Early immigration legislation
was characterized by “permissiveness” before turning to exclusion in later statutes.211 The first
post-Confederation Immigration Act (of 1869) was less concerned with keeping people out than
with providing procedural and transportation safeguards for those emigrating to Canada.212
209 See e.g. Kelley & Trebilcock 2010, supra note 179 at 12. 210 The Constitution Act, 1867, 30 & 31 Vict, C 3, ss. 91(25), 95. 211 For example, see Law Union of Ontario, The Immigrant’s handbook: a critical guide (Montreal: Black Rose Books, 1981) at 17-27 [LUO]; Jamie Chai Yun Liew & Donald Galloway, Immigration law (Toronto: Irwin Law, 2015 (2nd ed.)) at 13-14 [Liew & Galloway]; Kelley & Trebilcock 2010, supra note 179 at 62-66. See also Valerie Knowles, Strangers at our gates: Canadian immigration and immigration policy, 1540-2015 (Toronto: Dundurn Press, 2007 (rev. ed.)) [Knowles]. 212 See An Act Respecting Immigration and Immigrants, SC 1868, c. 10. The 1869 Immigration Act sets out these protections en route and also after arrival, along with recognition of the provinces’ power to ‘determine their policy concerning the settlement and colonization of uncultivated lands, as bearing on immigration’ (preamble); it also provided for the reporting, potential bonding, denial of landing, and reconveyance of an identified group of people (“… any Lunatic, Idiotic, Deaf and Dumb, Blind or Infirm Person, not belonging to any Immigrant family, and such person is, in the opinion of the Medical Superintendent, likely to become permanently a public charge…” at s. 11.2; see also s. 16 on ‘paupers and destitute Immigrants’ and potential proclamation prohibiting their landing (which was
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“Aliens” also made their appearance in statute, such that they were allowed to naturalize “as
local British subjects after three years of residence in Canada”.213 Relatively open immigration
following Confederation meant “few entry prohibitions”, incentives like travel assistance,
affordable settler homesteads, no removal after landing, and naturalization as a British subject
after three years of residency.214 After initial failures to attract settlers in the desired numbers,215
offers of free land under the 1872 Dominion Lands (homesteading) Act216 led immigration levels
to historic highs with the aforementioned millions arriving between 1896-1914.217 This increase
also benefited from the completion of the transcontinental railroad with the labour of Chinese
railroad workers (prior to the head tax and their later exclusion).218 In addition to settling
colonists, the profits of steamship and railways companies were integral, too. These companies
benefited from the transportation of Chinese railroad workers across the Pacific, the passage of
European settlers across the Atlantic and then over their railways, and then from selling “Crown”
land granted along those railroads to the same settlers.219
not passed until 1879 (Knowles, supra note 211 at 71). See also Christopher Anderson, Canadian liberalism and the politics of border control, 1867-1967 (Vancouver: UBC Press, 2013) at 38-39. 213 See Liew & Galloway, supra note 211 at 14 (citing Aliens and Naturalization Act, SC 1868, c 66). 214 Kelley & Trebilcock, supra note 179 at 107. 215 Emigration (largely to the U.S.) exceeded immigration in the first 30 years after Confederation, notwithstanding the looser legislative approach (see generally, Knowles, supra note 211; Kelley & Trebilcock, supra note 179; FitzGerald & Cook-Martín, supra note 181). See also Shin Imai, Canadian Immigration Law and Policy: 1867-1935 (LLM Thesis, York University (1983)) at 30 (noting that, at that time, it was Canada’s privilege for immigrants to come here). 216 See e.g. Daniel Francis, Selling Canada: three propaganda campaigns that shaped the nation (Vancouver: Stanton Atkins & Dosil, 2011) [Francis]; LUO, supra note 211 at 20. 217 See Knowles, supra note 211; Kelley & Trebilcock, supra note 179; FitzGerald & Cook-Martin, supra note 181. 218 See e.g. Francis, supra note 216 at 7-66; Patrick Dunae, “Promoting the Dominion: Records and the Canadian Immigration Campaign, 1872-1915” (Winter 1984-1985) Archivaria 19. More generally, see Norman Macdonald, Canada: immigration and colonization, 1841-1903 (Toronto: Macmillan of Canada, 1966). 219 Ibid. See also LUO, supra note 211 at 23-24. Sifton concluded secret incentive agreements with shipping companies to increase settler traffic to Canada as well.
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From the general openness of the 1869 immigration legislation, there was a shift in 1872 to
include “… the identification of prohibited classes - frequently defined in vague, value-laden,
and vituperative terms - [becoming] a central element and defining characteristic of Canadian
immigration law”.220 The general introduction of such prohibited classes was expanded in
subsequent immigration acts, from the innovation of deportation in 1906 to the 1910 prohibition
of the landing “… of immigrants belonging to any race unsuited to the climate or requirements of
Canada’.221 The selectivity and exclusivity of these changes were followed by the flexible
framing of various Orders-in-Council in 1911 to the 1919 Act222 and the 1923 Order-in-
Council.223 The latter Order-in-Council prohibited “the entry of all immigrants except for six
narrowly defined classes […] ‘agriculturalists’ with sufficient means to begin farming; farm
labourers with arranged employment; female domestic servants; wives and children under
eighteen of those resident in Canada; citizens of the United States ‘whose labour is required’;
and British subjects with sufficient means for self-maintenance.”224 Confirming the key features
noted above, Liew & Galloway observe that immigration law in Canada changed “from a
generally permissive regime, with admittedly broad and undefined exceptions, to an exclusionary
regime with narrow and well-defined exceptions.”225 These measures and reflections are echoed
220 See Liew & Galloway, supra note 211 at 14 (citing An Act to Amend the Immigration Act of 1869, SC 1872, c. 28). 221 Immigration Act, 1910, S.C. 1910, c. 27, s. 38 (see LUO, supra note 211 at 27, noting provision not removed until 1978, but ostensible deracialization with removal of race in 1962 and 1967 points system (except for family sponsorship: Liew & Galloway, supra note 211 at 24)). Cf FitzGerald & Cook-Martin, supra note 181 at 141-185 (challenging cause but not necessarily effect of deracialization, along lines of Cold War Civil Rights thesis). 222 Note that the 1919 Act allowed family sponsorship and encouraged family reunification, explicitly allowing admission of those who did not meet literacy requirements if they were related to people already in Canada: An Act to amend the Immigration Act, SC 1919, c 25, s. 3(t) (see Liew & Galloway, supra note 211 at 21). 223 PC 1923-183 (1923) C Gaz II 4106. 224 Ibid. Liew & Galloway, supra note 211 at 21 (see at 22, fn 111 also, citing Dirks that “officials were not interested in why people came but what they could offer in terms of labour market needs, capital supply and know-how to create jobs, or simply settle the land”). 225 See Liew & Galloway, supra note 211 at 21-22.
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generally in global, regional, and comparative approaches to the topic as well.226 The confluence
of framework legislation with a gradual shift from seemingly ‘wide-open’ immigration to
selective immigration, restricted naturalization, and increased removal and deportation227
operated concurrently with targeted racist immigration laws and policies. But the racist
selectivity and exclusionary immigration law to follow only took place after completion of
massive European migration accompanying the numbered treaties. As noted above, immigration
“had successfully populated the country.”228
3.5 A Precarious Population
In summary, Canada was able to realize the necessary attributes of state sovereignty through
negotiation with, and then the domestication of, Indigenous peoples and their legal systems of
making relations. By negotiating the treaties, Canada was given access to vast lands and the
ability to settle massive numbers of people upon those lands. The duo of domesticated treaties
and Canada’s constitution paved the way for Canada’s government and the Indian Act that would
consolidate state control over Indian lands, government, and children. As seen with the
Haudenosaunee example, dispute resolution was successfully restricted to Canadian courts and
laws. The Indian Act was then amended to cut off access to counsel and the courts. The Act also
dictated all aspects of reserve life and undercut Indigenous self-government through the band
226 See e.g. Adam M. McKeown, Melancholy order: Asian migration and the globalization of borders (New York: Columbia University Press, 2008); Donna R. Gabaccia, “Migration history in the Americas” in Steven J. Gold and Stephanie J. Nawyn, eds., Routledge international handbook of migration studies (New York: Routledge, 2013) at 65-70. 227 Introduced in1906 Act (see LUO, supra note 211 at 20). See also: Attorney General for the Dominion of Canada v Everett E. Cain and James Raymond Gilhula (Ontario) [1906] UKPC 55 (27 July 1906) (confirming the Dominion Parliament’s authority to deport aliens). Generally, see Shin Imai, “Deportation in the Depression” (1981) 7(1) Queen's LJ 66. 228 FitzGerald & Cook-Martin, supra note 181 at 159.
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council and Indian Agent system.229 In the same period that lands were being taken through
treaties and immigration reached levels of hyper- or explosive colonization,230 the government
fostered the development of church-run residential schools to remove and assimilate Indigenous
children. Indian Act regulations were adopted in the 1880’s allowing Indian agents to order
Indian children to attend residential schools if the agent thought they were “not being properly
cared for or educated”.231 The Act was later amended in 1920 to let the government “compel any
First Nations child to attend residential school.”232 The following three graphs illustrate the
coincidence of the numbered treaties, the influx of settlers, and the rise of residential schools.233
229 See, e.g., Truth and Reconciliation Canada, Honouring the truth, reconciling for the future: Summary of the final report of the Truth and Reconciliation Commission of Canada (Winnipeg: Truth and Reconciliation Commission of Canada, 2015), online: TRC <http://www.trc.ca/websites/trcinstitution/File/2015/Honouring_the_Truth_Reconciling_for_the_Future_July_23_2015.pdf> [TRC Executive Summary] 230 The exponential rise in immigration has been called ‘explosive’ or ‘hyper’-colonization by some (e.g. James Belich, Replenishing the Earth: the settler revolution and the rise of the Anglo-world, 1783-1939 (Oxford: Oxford University Press, 2009); Barman 2007, supra note 185). 231 TRC Executive Summary, supra note 229 at 60. 232 Ibid at 62 (emphasis added). 233 See online: “Numbered Treaties” in Canadian Encyclopedia, online <http://www.thecanadianencyclopedia.ca/en/article/numbered-treaties/>; TRC Executive Summary, supra note 229 at 64; StatsCan, “150 years of immigration in Canada,” online <http://www.statcan.gc.ca/pub/11-630-x/11-630-x2016006-eng.htm>.
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The nexus of these processes set Canada on its way to achieving and maintaining the necessary
attributes of state sovereignty (permanent population, defined territory, government and laws,
and the capacity to enter international relations).
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For the same reasons, these interrelated processes set Indigenous peoples on a path of
domestication that they have resisted ever since. The dispossession of their lands, repression of
traditional governments and laws, and the removal of their capacities to enter into relations have
all been detailed above. The other major component of Canada’s cultural genocide targeted the
permanent populations of Indigenous peoples. As detailed in the Final Report of the Truth and
Reconciliation Commission (TRC) into Indian Residential Schools, hundreds of thousands of
children were forced to attend residential, day, and industrial schools from before Confederation
up to the twentieth century.234 However, the Indian Act also comprised various other assaults on
the future and identity of Indigenous peoples. Contrary to Indigenous laws and respectful treaty
relations, the Indian Act created individual Indian status while emphasizing rules of patrilineal
descent, pseudo-blood quantum, and enfranchisement leading to the loss of status and reserve
lands.235
From the Royal Proclamation of 1763236 (“the several Nations or Tribes of Indians, with whom
We are connected, and who live under Our Protection”) to all of the statutes from the 1850s
onwards, the creation, revocation, and revision of persons deemed to be or not to be “Indians”
has been constant and punishing. These revisions have been determined by various markers,
including government-defined blood, status contingent upon “marrying-in” and “marrying-out”
of communities, voluntary and involuntary enfranchisement, residence on certain lands, and
membership in particular bands.237 The impact of these changes over time has been especially
234 TRC Executive Summary, supra note 229. 235 Truth and Reconciliation Canada, Canada’s Residential Schools: The History, Part 1 (Origins to 1939). Vol. 1 (Montreal & Kingston: MQUP, 2015) online: NCTR <http://nctr.ca/assets/reports/Final%20Reports/Volume_1_History_Part_1_English_Web.pdf> at 106, 108 [TRC Vol. 1]. 236 Reprinted in R.S.C. 1985, App. II, No. 1. 237 For a relatively succinct summary of the various changes, see Canada, Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples. Vol. 4, (Ottawa: Canada Communication Group Publishing,
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pernicious for Indigenous women. Sharon McIvor’s decades-long quest to reform the Indian Act
to allow perpetual transmission of status, singly, by both fathers and mothers is a testament to
this harm.238
As noted by ethnographer Scott Lauria Morgensen, “in its definition of over six hundred ‘First
nations’ whose members received ‘Indian status’ by state decree, the Act also separated myriad
communities of common nationality, radically reduced land bases (if any remained), and enabled
the state to determine the fact or erasure of their existence.239” Indeed, the statutes governing
entitlement to registration were “amended for 150 years” with “many amendments [being] bold
attempts at reducing the Aboriginal population of a province or the whole country.”240 The point
of reduction is emphasized in the context of the fiscal burden of Indigenous peoples at the federal
1996) at 24-49 (on gendered impact) and Vol. 1 at 258-318 (on more general history and impact of the Indian Act) [RCAP Vol. 4, RCAP Vol. 1]. See also John Borrows and Leonard Rotman, Aboriginal legal issues: cases, materials & commentary (Markham, Ont.: LexisNexis, 2012. 4th ed.) at 813-820, 842, 846. For more in-depth studies, see e.g. Pamela Palmater, Beyond blood: Rethinking Indigenous Identity (Saskatoon: Purich Publishing, 2011); Larry Gilbert, Entitlement to Indian status and membership codes in Canada (Scarborough, ON: Carswell, 1996); and, Bonita Lawrence, “Real" Indians and others: mixed-blood urban Native peoples and indigenous nationhood (Vancouver: UBC Press, 2004). 238 See, e.g., Statement by Sharon McIvor (June 22, 2016), online <http://fafia-afai.org/wp-content/uploads/2016/06/2016Statement-of-Sharon-McIvor-Engfinal.pdf> and NWAC FAFIA Press release in support of Sharon McIvor (June 23, 2016), online: <http://fafia-afai.org/wp-content/uploads/2016/06/2016McivorNWACFAFIAPRESSRELEASEengfinal.pdf> (calling for Indian Act reforms prior to launch of MMIWG Inquiry and criticizing Canada’s attempt to suspend McIvor’s UN petition). See also Mary Eberts, “Victoria’s secret: how to make a population of prey” in Joyce Green, ed., Indivisible: indigenous human rights (Winnipeg: Fernwood Publishing, 2014); Gehl v. Canada (Attorney General), 2017 ONCA 319 online: CanLII <http://canlii.ca/t/h38cq>. 239 Scott Lauria Morgensen, “The Biopolitics of Settler Colonialism: Right Here, Right Now” (2011) 1:1 Settler Colonial Studies 52-76 at 62. On the role of accounting in this process, see also: Dean Neu & Cameron Graham, “The birth of a nation: Accounting and Canada’s first nations, 1860–1900” (2006) 31 Accounting, Organizations and Society 47–76 (re land, accounting, local agents, governmentality, governance at a distance, histories of the present, technologies of government, Foucault, population, assimilation to economic citizenship, take away agency & then justified paternalism, control over personal monies/wages/banking, cost controls, the disabling of Indigenous agency ftp settlement & control of the west (treaties, reserve lands, land sales/surrenders), etc.). 240 Gilbert, supra note 237 at 12.
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level.241 This view accords with the historical record, demographic projections, recent SCC case
law, and legal, political, and socio-legal critiques of the legislation242: “Indian Affairs continues
to control land and resources required to accommodate these members and Canada will
differentiate between band members’ registration status.”243 As recognized by the late
Mocreebec Chief Randy Kapashesit in a presentation to the Royal Commission on Aboriginal
Peoples, an emphasis on wider territorial confederations and inter-National relations ruptures
membership bound to Indian Act bands.244
I also want to stress that […] one absolute necessity for this aboriginal Commission to put forth is that the idea of governments – aboriginal governments – cannot be tied to Indian Act governments.
[…] We had people who are identified as Metis, on-reserve, off-reserve, treaty, non-treaty, land claims, no land claims, and then everyone else in between who falls between that.
We have to take back our own history, our own culture, our own identification. And the governments and their legal history and their legal instruments in managing our own lives have no place in determining that. And for our own people I think it’s necessary – absolutely necessary – to mentally understand that we have to work ourselves back to the time before contact.
I hear my cousins in northern Quebec say that life began for them in Canada and in Quebec with the 1974 James Bay/northern Quebec Agreement, as though that validated who we were, as though that affirmed who we were.
Make no mistake about it, those are important arrangements. But, they’ve always been in the interest of the state to have treaties and to have arrangements and agreements. We’ve never had the opportunity to work out our relationship with each other, within families, as individuals, between communities and beyond communities, nation-to-nation.”245
241 See RCAP Vol. 1, supra note 237 at 304 (federal government self-interest in the Indian Act’s diminishing definition of Indian (relegation to provincial responsibility)); Palmater, supra note 237 at 45-46 (on the related point of infringement and re-colonization, citing: Lisa Dufraimont. "From Regulation to Recolonization: Justifiable Infringement of Aboriginal Rights at The Supreme Court of Canada" (2000) 58(1) University of Toronto Faculty of Law Review 1). 242 See various references, supra note 237. See also: Sebastien Grammond, Identity captured by law: membership in Canada's indigenous peoples and linguistic minorities (Montreal: McGill-Queen's University Press, 2009); Stewart Clatworthy, Indian Registration, Membership and Population Change in First Nations Communities (Winnipeg, MB: Four Directions Project Consultants, 2005); Val Napoleon, “Extinction by Number: Colonialism Made Easy” (2001) 16:1 CJLS 111. 243 Gilbert, supra note 237 at 13. 244 Palmater makes the stakes of these divisions and distinctions patently clear in her book, noting the spectrum of statuses, from Indian Act status and band citizenship, to treaty rolls, to Metis scrip, to modern treaty citizenship, to Indigenous nationhood (Palmater, supra note 237). 245 Kapashesit, supra note 1 (emphasis added)
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Emphasis on the wider definitions and relations matters where mere proof of ancestry might
suffice instead of the quasi-blood quantum required by various versions of the Indian Act.246
Plains Cree Indigenous studies scholar Robert Innes (Cowessess First Nation) further
complicates the simplistic, essentialized picture painted by the Indian Act. He notes that “…
most Aboriginal bands in the northern plains of Saskatchewan were kin-based and multicultural.
Plains Cree, Saulteaux (also known as Chippewa or Western/Plains Ojibwe/Ojibwa),
Assiniboine, and Métis individuals shared similar cultural kinship practices that allowed
them to integrate others into their bands.”247 As noted in the previous chapter, a core feature
of Indigenous legal systems is the ability to integrate other individuals and nations into existing
webs of relations. Nonetheless, in line with the notorious statement by Duncan Campbell Scott
(deputy director of the Department of Indian Affairs), the Indian Act was geared to “a time when
‘there is not a single Indian in Canada that has not been absorbed into the body politics, and there
is no Indian question’”.248
Indian Act changes and definitions did not impact Indigenous peoples equally. Instead, as noted
by Nellie Carlson, they had a very calculated gendered impact which disproportionately affected
women: “Historically the Indian Act has thoroughly brainwashed us. Since 1869 Indian women
already were legislated as to who she should be. Six times the Indian Act changed on Indian
246 Gilbert, supra note 237 at 14; Grammond 2009, supra note 242 at 71-73. 247 Innes 2012, supra note 21 at 124 (emphasis added) and at 139-140 (on multicultural bands versus tribes in methodology where former illuminates histories of individual and band multiculturalism versus tribal hegemony and exclusivity, as well as importance of kinship determinations regardless of tribe or band). See also McCormack 2012, supra note 31; Grammond 2009, supra note 242 at 77-80 (also making reference to Plains/Prairie Cree and James Smith First Nation). 248 Morgensen 2011, supra note 239 at 62-63 (citing Duncan Campbell Scott in J.R. Miller, Skyscrapers Hide the Heavens: A History of Indian-White Relations in Canada (Toronto: University of Toronto Press, 1989) at 207). See also Neu & Graham, supra note 239 (on the use of accounting and local agents to take away Indigenous agency, justify paternalism and control over money, wages, and banking through cost controls to facilitate settlement and control of the west).
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women. But each time she lost a little bit of her rights as an Indian.”249 While the first statutory
language from the 1850 legislation (in Lower Canada) was wide and inclusive,250 it was
amended in 1851 to exclude from status (among others) “non-Indian men who married Indian
women” while still allowing “non-Indian women who married Indian men” the right to Indian
status.251 As noted by the Royal Commission on Aboriginal Peoples: “For the first time, Indian
status began to be associated with the male line of descent”.252 The ability of Indian men to
transfer Indian status by marriage to non-Indian women, without any such ability for Indian
women to transfer status by marriage to non-Indian men, mirrored the rise of dependent
nationality in the broader, still very much gendered context of colonial and imperial
legislation.253
While the 1861 Act respecting Indians and Indian Lands still defined Indians “as those with
Indian blood reputed to belong to a tribe, all those intermarried among them, and their
descendants”, the notions of blood and belonging would soon narrow in the subsequent acts.254
With respect to kinship connections, in 1869, section 6 of An Act for the gradual
249 Nellie Carlson, Indian Rights for Indian Women, Edmonton, Alberta, 11 June 1992 (in RCAP, Vol. 4, supra note 237 at 25). See Ibid at 24-49 (summarizing gendered impact). See also Renisa Mawani, Colonial proximities: crossracial encounters and juridical truths in British Columbia, 1871-1921 (Vancouver: UBC Press, 2009) at 179-181. 250 See An Act for the better protection of the Lands and Property of the Indians in Lower Canada, S. Prov. C. 1850, c. 42., s. 5. 251 See RCAP Vol. 4, supra note 237 at 25. 252 Ibid at 25 (notes omitted). See the 1851 amendment (“… the following persons and classes of persons, and none other, shall be considered as Indians---. Firstly. All persons of Indian blood, reputed to belong to the particular Tribe or Body of Indians interested in such lands or immoveable property, and their descendants: Secondly. All persons residing among such Indians, whose parents were or are, or either of them was or is, descended on either side from Indians or an Indian reputed to belong to the particular Tribe or Body of Indians interested in such lands or immoveable property, and the descendants of all such persons: And Thirdly. All women, now or hereafter to be lawfully married to any of the persons included in the several classes hereinbefore designated; the children issued of such marriages, and their descendants.”). 253 See, e.g., Philip Girard, "“If two ride a horse, one must ride in front”: Married Women’s Nationality and the Law in Canada 1880–1950." (2013) 94.1 The Canadian Historical Review 28-54; Helen Irving, Citizenship, alienage, and the modern constitutional state: a gendered history (New York: Cambridge University Press, 2016). 254 Palmater, supra note 237 at 40-41 (citing: An Act respecting Indians and Indian Lands, C.S.L.C. 1861, c. 14 at s. 11).
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enfranchisement of Indians, the better management of Indian affairs, and to extend the
provisions of the Act 31st Victoria read as follows:
Provided always that any Indian woman marrying any other than an Indian, shall cease to be an Indian within the meaning of this Act, nor shall the children issue of such marriage be considered as Indians within the meaning of this Act; Provided also, that any Indian woman marrying an Indian of any other tribe, band or body shall cease to be a member of the tribe, band or body to which she formerly belonged, and become a member of the tribe, band or body of which her husband is a member, and the children, issue of this marriage, shall belong to their father's tribe only.255
Going much further than the former inability of their non-Indian spouses to ‘marry in’, the 1869
Act enshrined the loss of status for Indian women ‘marrying out’ and the inability to transmit
status to any children of such a union. This provision carried through to the very first
consolidated Indian Act of 1876, which defined the term ‘Indian’ through men, their ‘blood’, and
male descent:
The term ‘Indian’ means
First. Any male person of Indian blood reputed to belong to a particular band;
Secondly. Any child of such person;
Thirdly. Any woman who is or was lawfully married to such person: […]
(c) Provided that any Indian woman marrying any other than an Indian or a non-treaty Indian shall cease to be an Indian in any respect within the meaning of this Act, except that she shall be entitled to share equally with the members of the band to which she formerly belonged, in the annual or semi-annual distribution of their annuities, interest moneys and rents; but this income may be commuted to her at any time at ten years' purchase with the consent of the band.256
255 An Act for the gradual enfranchisement of Indians, the better management of Indian affairs, and to extend the provisions of the Act 31st Victoria, Chapter 42. S.C. 1869, c. 6 (32-33 Vict.), s. 6 (emphasis added). See also Leslie & Maguire, supra note 180 at 66 (on this point, and noting contrast in definition from the previous year in An Act providing for the organisation of the Department of the Secretary of State of Canada, and for the management of Indian and Ordnance Lands (22 May 1868), S.C. 1868, c. 42, s. 15). See also Palmater, supra note 237 at 41 (noting the import of s. 4 on annuity monies and how the “…amount of Indian blood one was thought to have was therefore directly tied to one’s entitlements, and with this Act the government directly involved the chiefs in the exclusion of their citizens in sharing the resources provided by Canada”). See also Indian Act, R.S.C. 1951, c. 29. s. 12 (involuntary enfranchisement & marrying out). Finally, see Stevenson 2015, supra note 75 at 484-486 and notes 47-49 (including on the pernicious effects on mixed-race, so-called ‘illegitimate’ children). 256 An Act to amend and consolidate the laws respecting Indians, S.C. 1876, c. 18 (39 Vict), s. 3. The Act also provided for the exclusion of illegitimate children and for an Indian woman’s status to transfer to that of her spouse (if he was also a member of another band).
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Given federal Indian policy’s tripartite focus on the control of lands, government, and
children,257 the loss of status for Indian women ‘marrying out’ to non-Indian men or non-status
Indians has been one of the most devastating and long-lasting tactics in the larger colonial
strategy.258 As summarized by the RCAP, a whole host of detrimental effects for Indian women
sprang from their excision from status:
… they could not vote in band elections; if they married an Indian man from another band, they lost membership in their home communities; if they married out by wedding a non-Indian man, they lost Indian status, membership in their home communities, and the right to transmit Indian status to the children of that marriage; if they married an Indian man who became enfranchised, they lost status, membership, treaty payments and related rights and the right to inherit the enfranchised husband's lands when he died.259
The state’s emphasis on ‘patrilineal descent’ also ran counter to both the “predominant principle
of [bilateral] descent among the tribes […] traced equally through both the mother’s and the
father’s relatives” and the next most common principle of matrilineal descent.260 Patrilineal
descent also coincided with the state undermining matriarchal authority generally and in the
context of particular communities’ political and legal systems. The example of the Six Nations of
the Grand River is pertinent here, too, given colonial distrust of clan mothers’ powers to hold
title and select the Confederacy’s chiefs.261
Restriction through male lineage was made worse by the reductive policies of voluntary and
involuntary enfranchisement.262 The introduction of enfranchisement to further assimilate
257 See e.g. Barman, supra note 185 at 169 and following. 258 In addition, see also Eberts, supra note 238 at 144-165. 259 RCAP Vol. 4, supra note 237 at 28 (note omitted). 260 RCAP Vol. 4, supra note 237 at note 19 (citing Sally Weaver, "First Nations Women and Government Policy 1970-92: Discrimination and Conflict", in Lorraine Code and Lindsay Dorney, eds., Changing Patterns: Women in Canada, 2nd ed. (Toronto: McClelland and Stewart, 1993) at 98). 261 On this point, in the context of Six Nations of the Grand River and the Haudenosaunee Confederacy, see related references at Bhatia 2012b, supra note 152 at 166-169. 262 See, e.g., RCAP Vol. 4, supra note 237 at ch. 2; Megan Furi & Jill Wherrett, Indian Status and Band Membership Issues (Ottawa: Political and Social Affairs Division, Parliamentary Research Branch, Library of Parliament, 2003); Gilbert, supra note 237; Bohaker & Iacovetta, supra note 115.
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Indigenous peoples arose in an 1857 statute applicable to Upper and Lower Canada, providing
rights to vote and own individual property in exchange for giving up Indian status and residency
rights on reserve.263 The role of enfranchisement was confirmed in the consolidated 1876 Indian
Act,264 which also included the forced replacement of traditional governance systems with
elected band councils acting as local governments under the Indian Agent.265 The examples of
‘marrying out’, enfranchisement, and band councils illustrate the weaponization of race, gender,
class, and democracy within Canadian Indian policy. This legal cocktail also highlights the near-
lethal consequences of the Indian Act and Indian status for Indigenous self-determination under
Indigenous legal and political systems. As noted by Val Napoleon: “Cataloguing First Nations
people, be they Gitxsan, Cree, or Tsimshian, as Indians belonging to a reserve according to the
Indian Act, was merely a step to bureaucratically disconnect First Nations from their territories.
Once First Nations were redefined as Indians, another step was to reduce the number of Indians
requiring reserve land or federal resources. […] The overarching issue is that the federal
government’s legal instrument of colonialism, the Indian Act, has effectively nullified and erased
First Nations cultural systems for determining citizenship.”266
In contrast to this conspiracy of legislated identity, Mi’kmaq legal scholar Pamela Palmater
argues that “Indigenous nations have inherent jurisdiction to determine citizenship rules for
themselves, though this might practically emerge only through negotiated self-government
263 RCAP Vol. 4, supra note 237 at 25-26 (citing Act to encourage the gradual Civilization of the Indian tribes in this Province, and to amend the Laws respecting Indians, S. Prov. C. 1857, c. 26, s. 3. See also Michael Posluns, Speaking with authority: the emergence of the vocabulary of First Nations' self-government (New York: Routledge, 2007) at 11, 60-61, and 66. 264 An Act to amend and consolidate the laws respecting Indians, S.C. 1876, c. 18 (39 Vict), s. 5, 86, 87. 265 In addition to the example at Six Nations, see more recently: Shiri Pasternak, Grounded Authority: The Algonquins of Barriere Lake Against the State (Minnesota: University of Minnesota Press, 2017) (s. 74 of the Indian Act was used to impose an elected band council at Rapid Lake Reserve by mail-in ballot after multiple unsuccessful attempts). 266 See Napoleon 2001, supra note 242 at 118, 122.
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agreements or modern treaties.”267 In the absence of this full-blown, self-determination approach
to identity, Palmater notes that assimilation will continue because traditional communal identity
will be reduced to band membership belonging that is determined by the recognized identity of
the Indian Status registry.268 In contrast to the constrained and reductive definitions of the Indian
Act, the definition of Aboriginal peoples from the eponymous Royal Commission is much
broader: “organic, political, and cultural entities that stem historically from the original peoples
of North America” (and not collections of individuals united by so-called racial
characteristics).269 The RCAP definition of Aboriginal nation is likewise wider than the
corresponding current definition of band at the Indian Act: “sizeable body of Aboriginal people
who possess a shared sense of national identity and constitute the predominant population in a
certain territory or collection of territories.”270 As with Indigenous treaties, territories, and
governments, the process of domestication operates to shrink and isolate what would otherwise
be dynamic Indigenous populations. Palmater finds this to be the Indian Act’s biggest impact:
“changing the relationship between the Crown and Indigenous Nations to one between Canada
and individual Indians”.271
These domesticating developments are all-important because they dishonour sacred treaty
relations and foreclose the self-determination and continuity of Indigenous peoples. At the same
267 Palmater, supra note 237 at 30. Various scholars differ on these points, see, e.g., Pamela Palmater, “Justifying Blood Quantum as Sui Generis State Law.” Book Review of Kirsty Gover, Tribal Constitutionalism: States, Tribes, and the Governance of Membership (New York: Oxford University Press, 2011)” (2012) 17:1 Review of Constitutional Studies 135-145; Douglas Sanderson, “Book Review: Beyond Blood: Rethinking Indigenous Identity (P. Palmater) and Tribal Constitutionalism: States, Tribes and the Governance of Membership (K Gover)” (2013) 63(3) UTLJ 511-515. See also Grammond 2009, supra note 242. 268 Palmater, supra note 237 at 30. The key distinction in the Act between the ‘fuller’ s. 6(1) and the ‘lesser’ s. 6(2) registrants has to do with transmission and the inability of 6(2) registrants “to pass on Indian status to children in their own right” (with attendant distinctions between 6(1) registrants as well, such as those reinstated, sometimes under duress, through Bill C-31) (at 34). See also Borrows 2009, supra note 82. 269 Palmater, supra note 237 at 36. 270 Ibid at 36. 271 Ibid at 37.
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time, they also guarantee essential attributes of Canadian sovereignty and the ability to maintain
such sovereignty in seeming perpetuity.
Conclusion 4This chapter has shown how domesticated versions of the treaties were used to consolidate state
sovereignty through the establishment of a defined Canadian territory, the immigration and
settlement of a permanent population, and a corresponding government. This consolidation
allowed the Canadian government to bring about the Indian Act, which further transformed
Indigenous relations with both the state and one another through the introduction of band
councils, Indian Act status, and residential schools. The next chapter examines the hard, cutting
edges of this state sovereignty at the intersection of Indigenous, Aboriginal and immigration law.
I assess the promises and limits of reconciliation in the face of the conventional state sovereignty
that Canada has so carefully cultivated. My case study focuses on a Treaty One First Nation’s
customary adoption of a precarious migrant and why such adoption does not currently prevent
removal from Canada.
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Chapter 3 Precarious Migration in an Age of Reconciliation
Introduction 5Chapter Three brings the discussion about Indigenous laws and treaties together with my
examination of Canadian sovereignty and its effect on Indigenous jurisdiction over peopling. My
main focus in this chapter is the case of a Treaty One First Nation’s customary adoption of a
failed refugee claimant. This adoption was related to an attempt to prevent removal from Canada
due to the claimant’s lack of immigration status. This attempt was unsuccessful because a
customary adoption does not confer Indian Act status, which is what matters for staying in
Canada under the Immigration and Refugee Protection Act. While this attempt was unsuccessful,
I argue that an alternative approach to treaties informed by Indigenous laws would have
recognized the staying power of Indigenous adoption. Notwithstanding current Canadian
immigration law, this staying power would further the goals of Indigenous self-determination
and Canadian reconciliation. Before turning to the case study, I briefly set out some relevant
elements of Canada’s current immigration law.
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A Brief Note on the Immigration and Refugee 6Protection Act
As with Indian status and the Indian Act, the Constitution Act (1867) is the source for federal
powers over immigration status. The Constitution gives the federal government sole
responsibility over “naturalization and aliens,” where common law courts have famously noted
that “no alien has any right to enter this country except by leave of the Crown … [and] he has no
right whatever to remain.”272 The federal and provincial governments share jurisdiction over
“agriculture and immigration,” but federal immigration laws take precedence over provincial
ones in cases of conflict.273 The current Immigration and Refugee Protection Act274 (IRPA) has
many objectives with respect to immigration and refugees, including serving the interests of
Canadian society and economy while upholding its laws and human rights obligations.275
Demographically, such immigration is necessary given Canada’s lower fertility rate and ongoing
need to replace its population in order to provide new workers who will spend their taxable
income. Nonetheless, Canada’s current 177-page immigration statute is a far cry from the fifteen
page Immigration Act of 1869. As seen in the last chapter, open-door policies, emigrants’ rights,
the active recruitment of settlers, and grants of free land for homesteading accompanied the latter
272 Constitution Act, 1867, 30 & 31 Victoria, c. 3, s. 91(25). See R. v. The Governor of the Pentonville Prison, ex parte Azam, [1973] 2 All E.R. 741 at 747 (Denning M.R.). See also Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 SCR 711 at 733 (“The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country. At common law an alien has not right to enter or remain in the country...”). 273 Constitution Act, 1867, 30 & 31 Victoria, c. 3, s. 95. The federal government has been the main legislative actor in this area since shortly after Confederation given coordination problems and conflicts between separately run provincial and federal immigration recruitment programs (see Knowles, supra note 211 at 70). In addition to the longer-standing agreement between Canada and Quebec, provincial and territorial immigration agreements and laws have proliferated in recent years (see, e.g., Sasha Baglay & Delphine Nakache, “Immigration Federalism in Canada: Provincial and Territorial Nominee Programs (PTNPS)” in Baglay & Nakache, eds., Immigration Regulation in Federal States: Challenges and Responses in Comparative Perspective (New York: Springer Dordrecht, 2014). Most recently on the provincial lives of migrant workers in the social state, see Sarah Marsden, Enforcing Exclusion (UBC press: forthcoming). 274 Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. 275 Ibid, ss. 3(1) - 3(3) (objectives & application).
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act. Today’s IRPA is characterized by cataloguing exclusion and limiting the means of entry
rather than facilitating mass immigration.
The IRPA considers everyone in the world who is not authorized to enter or stay in Canada to be
a foreign national. Only citizens and registered Indians have almost unqualified rights to enter
and remain in Canada276. Foreign nationals who have successfully applied to become permanent
residents through economic, family, or refugee categories also have the right to enter and remain
here subject to certain limitations.277 Everyone else is considered to be a foreign national, defined
as “a person who is not a Canadian citizen or a permanent resident.”278 Under the Act and its
associated regulations, these foreign nationals can apply for authorization to enter and remain in
Canada as temporary residents for a limited period of time.279 Temporary residents are
authorized to enter as visitors, workers, or students, with the chance to extend their limited stays
and, sometimes, apply for permanent resident status (e.g. as high-skilled workers or as post-
graduates but not as so-called “low-skilled” migrant workers).280 All temporary residents are
subject to different restrictions; breaching these restrictions will jeopardize authorization to stay
in Canada (e.g. overstaying permits; visitors who work or study; workers who study or work for
unauthorized employers; and students who work off-campus beyond permitted hours). If foreign
nationals are not authorized to enter Canada, or if they are authorized as temporary residents and
breach a condition of their entry or stay, they are subject to enforcement and removal.281 Foreign
276 Ibid, s. 19(1) (citizens, registered Indians). 277 Ibid, s. 12 (selection of permanent residents), 19(2) (permanent residents’ entry), 21(1) (status), 27 (rights of permanent residents), 28 (residency obligation), 36(1) (e.g. inadmissibility for serious criminality), 40(1) (misrepresentation), 41(b) (inadmissibility for failing to comply with required residency). See also, generally, the Immigration and Refugee Protection Regulations, SOR/2002-227 (IRPR) for the economic, family, and refugee classes for applying for permanent residency. 278 IRPA, supra note 274, s. 2(1) (definitions). 279 Ibid, s. 20(1), 22(1). 280 IRPR, supra note 277 at Parts 9-11. 281 IRPA, supra note 274, ss. 48-52; IRPR, supra note 277, s. 223.
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nationals can sometimes try to challenge these enforcement decisions administratively and
through the courts.
Asylum seekers are foreign nationals making refugee claims in Canada due to a claim of well-
founded fear of persecution in their home countries (pursuant to Canada’s obligations under the
UN Refugee Convention).282 Their claims are heard by an administrative tribunal (the
Immigration and Refugee Board (IRB)) and they cannot be removed from Canada until their
claim is finalized.283 Whether through applications for leave and judicial review at the Federal
Court or appeals at the Immigration and Refugee Board, unsuccessful refugee claimants can try
to challenge the rejection of their claims in limited circumstances.284 Some foreign nationals
subject to removal orders that are in force can also apply to have the risks of return assessed
before their removal from the country (pre-removal risk assessment).285 Some foreign nationals
may also apply to the Immigration Minister for discretionary and exceptional consideration of
their applications for permanent residence on humanitarian and compassionate (H&C)
grounds.286 Foreign nationals make H&C applications because they are not otherwise eligible to
apply under the Act. Unlike the pre-removal risk assessment, however, the H&C application
does not keep a foreign national in the country pending its determination.287 The H&C grounds
for consideration include the foreign national’s level of settlement, family ties, the best interests
of any children involved, and the consequences of not getting permanent resident status (e.g. lack
of adequate medical treatment).
282 Ibid, ss. 95-97 (under s. 97, complementary protection is available to a “person in need of protection” whose removal would subject them personally to danger of torture or a risk to life or cruel and unusual treatment or punishment). 283 Ibid, s. 49(2). 284 Ibid, s. 72(1), 110 (see also Angus Grant & Sean Rehaag, “Unappealing: An Assessment of the Limits on Appeal Rights in Canada’s New Refugee Determination System” (2015) 49(1) UBC L.R. 203). 285 IRPA, supra note 274, s. 112(1) cf s. 112(2)(b.1), (c). 286 Ibid, s. 25(1) cf s.25(1.2)(c). 287 Ibid, s. 50; IRPR, supra note 277, s. 232 cf s. 233.
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Sister Juliana Eligwe 7On paper, the migration story of Nkemhurunaya Juliana Eligwe encompasses almost all aspects
of the immigration law relating to foreign nationals briefly set out above. A Roman Catholic nun
and Nigerian citizen, Sister Juliana first came to Canada on a visitor’s visa in August 2001 with
valid status until February 2002.288 But her story reportedly begins with an earlier invitation by
two Nigerian-Canadian doctors to visit Canada and help care for their four young children.289
Sister Juliana worked as a live-in nanny and housekeeper for the family; she allegedly averaged
12-hour days for 7 days a week at a monthly wage that worked out to 47 cents an hour.290 After
four months of this work, the doctors claimed that her application to extend her visitor visa had
been denied. Sister Juliana found out that her visa extension had actually been approved while
the family was en route to a Disney World vacation and she was getting set to return to Nigeria.
On learning the truth, she filed a statement of claim against the doctors claiming that she should
have been brought to Canada under the Live-In Caregiver program (LCP) and paid properly.291
Subsequently reformed and set to expire, the LCP was then the only viable way for so-called
low-skilled migrant workers to apply for permanent resident status after working full-time for
two years as a live-in caregiver.292 The two doctors filed a statement of defence disputing Sister
288 Application for Judicial Review materials found in Sandy Bay Ojibway First Nation v. Canada (Minister of Citizenship and Immigration), 2006 FC 903, online CanLII <http://canlii.ca/t/1p0g1>, [Sandy Bay Materials] (Evidence, Affidavit of Janet Nortey (18 July 2006) at Exhibit A, Case History at 7). 289 Kim Guttormson, “Pay was 47 cents an hour: nanny Thompson doctors refute nun's claims” Winnipeg Free Press (Aug. 19, 2002), online <Factiva> [Guttormson] 290 Ibid. 291 Ibid. 292 IRPR, supra note 277, ss. 72(2)(a), 113 (repealed, SOR/2017-78, s. 4, 6). For government background on the changes, see Regulations Amending the Immigration and Refugee Protection Regulations, P.C. 2017-461, 5 May, 2017, SOR/2017-78, s. 4, 6, Canada Gazette, Part II, vol. 151, No. 10, (May 17, 2017), online <http://www.gazette.gc.ca/rp-pr/p2/2017/2017-05-17/html/sor-dors78-eng.php>. For criticism of program reforms, see Debra Black, “New rules for federal live-in caregiver program” The Toronto Star (Nov. 28, 2014), online <https://www.thestar.com/news/canada/2014/11/28/new_rules_for_federal_livein_caregivers_program.html>.
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Juliana’s claims.293 They claimed that she had asked to stay as their guest in Canada and offered
to babysit in exchange; they also claimed to provide her room, board, transportation, some
compensation, and gifts including jewellery and clothes.294 The doctors suggested that she was
not a nun and had also hit two of their children on the head.295 It appears that the case was
ultimately dismissed without going to trial.296
Sister Juliana applied for and received visitor visa extensions in January 2002 and in September
2002. Apart from what actually happened while she worked for the doctors, the fact that Sister
Juliana was working on a visitor visa meant that she was working without authorization by the
government.297 At an admissibility hearing in February 2003, Sister Juliana made a claim for
refugee protection and a conditional departure order was issued against her (with the removal
order coming into force only if/when her refugee claim and any appeals had been denied).298
After being found eligible to have her refugee claim referred to the Refugee Protection Division
(RPD) of the IRB, Sister Juliana applied for and was issued an open work permit in April 2003.
Ultimately, her refugee claim was denied in November 2003 and she applied for leave and
judicial review of the RPD decision at Federal Court in December 2003. While she got leave
from the court for it to consider her application, the judicial review was denied in March 2004.
At this point, the conditional departure order that was issued when she made her refugee claim
was now deemed to be a deportation order. However, Sister Juliana’s applications for pre-
removal risk assessment (PRRA) and for permanent residence on H&C grounds led to a stay of
293 “Nanny’s claim disputed” Winnipeg Free Press (20 Sept. 2002) In Brief, online <Factiva> 294 Ibid. 295 Ibid. 296 Requisition for Order dismissing Nkemuhuruanya Juliana Eligwe Plaintiff, -And- Nwachukwu Nwebube And Ann Nwebube Defendant (CI02-01-29361), online Manitoba Court Registry <http://www.jus.gov.mb.ca/> 297 Sandy Bay Materials, supra note 288 (Evidence, Affidavit of Janet Nortey (18 July 2006) at Exhibit A, Case History at 7). 298 Ibid.
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this removal order. In September 2004, she got her work permit extended for another year and
successfully applied for a study permit also set to expire in September 2005. In August 2005 she
applied for and received a work permit extension for another year, but her PRRA and H&C
applications were subsequently rejected in March 2006.
The enforcement officer communicated these negative decisions, including different removal
options, to Sister Juliana and her counsel in May 2006. Discussions and travel arrangements
ensued over the next month, including Sister Juliana’s purchase of an airplane ticket to Nigeria
with a set departure date of July 20, 2006.299 However, after a routine check-in with her lawyer
on June 26, the enforcement officer learned that Sister Juliana had retained new counsel. Sister
Juliana and her new lawyer filed an application for leave and judicial review of the PRRA and
H&C decisions on July 7, 2006. They also filed a motion for a stay of her removal from the
country pending the application for judicial review. While she had booked a ticket to Nigeria, her
removal travel plans were also up in the air since neither the U.K. nor the U.S.A. would grant her
transit visas to connect through their airports. When Sister Juliana’s motion was being heard in
court on July 17, she decided to abandon the motion for a stay. On the same day and on the
advice of her new lawyer, she also decided not to rebook her travel to Nigeria through an
alternate route. Sister Juliana also appointed a new immigration lawyer to represent her case on
July 17. All of these developments prompted the enforcement officer to start arranging removal
travel by herself, but she was unable to do so without Sister Juliana’s passport.300
In summary, Sister Juliana was brought to Canada on a visitor visa to work as a live-in caregiver
and domestic worker without authorization and allegedly without compensation. This
299 Ibid (Evidence, Affidavit of Janet Nortey (18 July 2006) at para. 7). 300 Ibid at para. 16.
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unauthorized work brought her to the attention of immigration authorities that then received her
asylum claim, which was rejected at a tribunal along with her later application for judicial review
at court. Now subject to deportation, Sister Juliana applied for a risk assessment to stay her
removal from Canada. She also applied for an exceptional grant of permanent residence on
humanitarian and compassionate grounds. Both of these applications were also rejected.301 While
the case history and movement between different formal and (un)authorized statuses are
important, they do not tell the whole story. What was Sister Juliana doing after she left the home
of the two doctors? Where did she work once she was authorized to do so? What did she study
on her study permit? What relationships did she make that might support an H&C application?
And why did she decide to abandon her motion to stay her removal from Canada?
Canadian Establishment 8Sister Juliana abandoned her motion for a stay because on April 26, 2006, she was adopted into
the Sandy Bay Ojibway First Nation (SBOFN). So, the SBOFN filed the motion in its own name.
Long before that happened, however, Sister Juliana had worked various jobs while on her work
permit, including as a cook and server at Tomi-Tola’s Nigerian Restaurant in Winnipeg.302 After
receiving her study permit, she successfully completed a health care aide (HCA) program and
worked as a certified HCA for a nursing home.303 In Sister Juliana’s negative H&C decision, a
section of the reasons deals with “establishment in Canada” (one of the main factors assessed in
H&C applications). Officer Fraser noted the prominence of Sister Juliana’s integration “into the
301 Ibid at paras. 2-5 (and related exhibits). Sister Juliana’s unsuccessful refugee claim turned largely on challenges to her credibility and the inability to rebut the presumption of state protection from religiously motivated violence against Christians in northern Nigeria (Ibid at Exhibit B, Results of PRRA at 4-5). 302 Ibid (Evidence, Affidavit of Janet Nortey (18 July 2006) at Exhibit B, Decision and Reasons on H&C Application at 29-30). 303 Ibid at 29-30.
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faith lives of a number of congregations in Manitoba” and how she “has endeared herself to
many people in these communities by providing emotional and spiritual support to them […]
especially those in need such as the elderly and disabled.”304
Sister Juliana had also been volunteering at the SBOFN in various capacities,305 which was why
she was subsequently adopted into the Band’s membership following the negative immigration
decisions.306 Officer Fraser’s reasons contain an excerpt from a letter sent by then SBOFN Vice-
Chief Denis McIvor in support of Sister Juliana’s H&C application:
We are very grateful to have Sr. Juliana in our community. Sr. Juliana is here from time to time to give spiritual nourishment to our people and to our young ones. Since the nuns left our community years ago, Sr. Juliana’s performance has helped tremendously to fill the vacuum they left. In the church, Sr. Juliana leads the congregation in signing. Young couples go to her for spiritual talk to live as a good husband and wives. Teenagers flock to her seeking advice and clarifications on issues regarding their faith and practice. She was in our school for the staff and students when there was suicide and tragic deaths that left everybody in fear and devastation. On hearing about this, she volunteered her time and talents to talk and to be with them in their pain and grief. She is such a caring, compassionate person and has so much identified with our youth and our aboriginal community. How can we lose such a friend and spiritual counselor?307
The PRRA office reiterated this evidence of Sister Juliana’s establishment, noting “the
compassion she demonstrated in supporting the youth of the Sandy Bay Ojibway First Nation
when they were experiencing the emotional trauma of losing peers and loved ones to suicide308.”
Nonetheless, Officer Fraser was not satisfied that there was sufficient evidence to establish that
the hardships she would experience in applying for permanent residence from outside Canada
304 Ibid at 30. 305 Ibid at 29-30. See also: “Nun living on Manitoba First Nation reserve faces deportation” CBC News (Jul. 27, 2006), online <http://www.cbc.ca/news/canada/manitoba/nun-living-on-manitoba-first-nation-reserve-faces-deportation-1.602549>; Eric Ritskes, “Against the death maps of Empire: Contesting colonial borders through Indigenous sovereignty” Decolonization: Indigeneity, Education, & Society (Oct. 14, 2015), online <https://decolonization.wordpress.com/2015/10/14/against-the-death-maps-of-empire-contesting-colonial-borders-through-indigenous-sovereignty/>. 306 Sandy Bay Ojibway First Nation v. Canada (Minister of Citizenship and Immigration), 2006 FC 903 (CanLII), online <http://canlii.ca/t/1p0g1> at para. 5. [Sandy Bay] 307 Sandy Bay Materials, supra note 288 (Evidence, Affidavit of Janet Nortey (18 July 2006) at Exhibit B, Decision & Reasons on H&C Application at 30 (citing Feb. 23, 2006 letter from the SBOFN)). 308 Ibid at 31.
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would be unusual and undeserved or disproportionate. The officer accepted that Sister Juliana
had shown good character, compassion, and the ability to make highly valued contributions in a
self-sufficient manner.309 While acknowledging that she had established herself in Canada,
officer Fraser attributed the degree of establishment to her delayed refugee claim and multiple
applications to stay in the country.310
In rejecting her application, Officer Fraser also quoted Justice Russell in the Davoudifar
decision: “… the law of Canada does not say that it is possible to remain in Canada provided you
are a deserving individual and a valued member of your community.”311 While the applicant in
that decision had developed community ties and respect, these were not enough to keep her in
the country. Officer Fraser found this decision to be on point: “There is no question that the
Applicant is a valued member of her community and that she has managed to develop herself
personally and professionally while in Canada; however, I have concluded that her case, when
seen as a whole, presents insufficient humanitarian and compassionate grounds to warrant an
exemption from requirements of the [Act].312”
What happened in the wake of these negative decisions at the end of March 2006? Sister Juliana
was adopted by the SBOFN on April 26, 2006, but still appeared to be arranging to leave the
country until she changed her counsel and applied for leave and judicial review. In her July 5
affidavit, Sister Juliana stated that:
I am now advised and I verily believe and anticipate that the Sandy Bay Ojibway First Nation intends to take proceedings to prevent my removal from this Country on the ground that I am a member of the Sandy Bay Ojibway First Nation and that the Sandy Bay Ojibway First Nation
309 Ibid at 32. 310 Ibid. 311 Davoudifar v. Canada (Minister of Citizenship and Immigration), 2006 FC 316 at para. 25. 312 Sandy Bay Materials, supra note 288 (Evidence, Affidavit of Janet Nortey (18 July 2006) at Exhibit B, Decision & Reasons on H&C Application at 32).
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has an Aboriginal right to designate who are its members and that the said members cannot be forcibly required to leave the Country.313
The SBOFN’s support for Sister Juliana is set out in a few documents showing the First Nation’s
actions, rationale and basis for adopting her.314 Described as an “adoption of special
circumstances” in the Band Council Resolution (BCR), the Chief and Council “give notice of
acceptance and approval of an adoption into the band membership of Sandy Bay Ojibway First
Nation, whereas Chief and Council agree that the adoptee is Sister Juliana.”315 The Band Council
Meeting Minutes briefly note the following: “BCR#060105: support for band member being
deported. Her hearing is May 2nd, therefore a special convened meeting for the adoption of EJN
into Sandy Bay is presented. The leadership, on behalf of the community, ratifies this.”316 This
one short phrase encompasses the entire dispute over sovereignty and the attempt to use
Indigenous customary adoption to support a band member who is being deported.
Anishnaabe Adoption 9Unpacking this phrase reveals the intersection of Indigenous adoption laws with Aboriginal
status law and Canadian immigration law. It also shows the vibrancy of Indigenous legal
principles in framing the scope and interpretation of the treaties. Vice-Chief McIvor’s
supplementary affidavit is more expansive on the basis for Sister Juliana’s adoption, resonating
with wider registers of treaty relations and Indigenous self-determination:
Prior to 1871, the year in which British sovereignty came into play in Manitoba, the Sandy Bay Ojibway First Nation exercised its free and simpliciter inherent right to determine its own membership.
313 Sandy Bay Materials, supra note 288 (Evidence, Affidavit of Nkemhurunaya Juliana Eligwe (5 July 2006) at para. 7). 314 Ibid (Evidence, Affidavit of Vice-Chief Denis McIvor (6 July 2006) and Exhibits A & B (Band Council Resolution & Band Council Meeting minutes); Supplementary Affidavit of Vice-Chief Denis McIvor (10 July 2006)). 315 Ibid (Evidence, Affidavit of Vice-Chief Denis McIvor (6 July 2006) at Exhibit A (BCR 06-01-05)). 316 Ibid (Exhibit B (Band Council Meeting minutes) (emphasis added).
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In 1871, in the process of entering Treaty 1, which opened up its traditional territory to immigration and settlement, Sandy Bay Ojibway First Nation reaffirmed its right to determine its membership.
In the years following, the rights of Sandy Bay Ojibway First Nation to determine its own membership ran concurrently with the Indian Act’s determination of membership and status, without extinguishing or diminishing in any way the right of SBFN in this regard; ‘status’ as an ‘Indian’ pursuant to the Indian Act and ‘membership in a band’ pursuant to the Indian Act almost always coincided.
In 1985, passage of Bill C-31 and its amendments to the Indian Act separated membership from status and recognized and restored the exclusive right of First Nations to determine their own membership, resulting in many persons living on reserves who are members but who have no ‘status’.
Pursuant to the Indian Act, SBOFN assumed sole control of its membership pursuant to the Act and have continued since to administer its own membership code. As a result, there are many persons who are members pursuant to the Sandy Bay Ojibway First Nation Code who do not have status pursuant to the Indian Act but who nonetheless live on the Sandy Bay Reserve #5 which has been set aside for the exclusive use and benefit of the Sandy Bay Band pursuant to the Indian Act.
One such person is Sister Juliana, a person who does not have status pursuant to the Indian Act, but who is a member of the Sandy Bay Band, such membership having been granted pursuant to the Sandy Bay Membership Code on or about April 26, 2006, by the Sandy Bay Ojibway First Nation Chief and Council at a duly convened meeting of the said Council.317
In this affidavit, the SBOFN sets British sovereignty alongside Anishinaabe self-determination.
As mentioned in Chapter One, placing these authorities parallel to one another has a long
Indigenous legal history in pre-contact treaty-making and confederacies. These Indigenous legal
principles were also carried forward in relations with settlers from the parallelism of the Two
Row Wampum in 1613 to the Covenant Chain to the Wampum at Niagara to Treaty 1 in 1871. In
her careful study of the Stone Fort Treaty, Anishinaabe and Metis scholar Aimée Craft details
how pre-Treaty 1 practices of Anishinaabe treaty-making set the context for Treaty 1
interpretation today. 318 She notes how earlier Indigenous laws and protocols for making relations
were: 1) important legal precedents at the time; 2) procedurally relevant in ways that then
informed substantive expectations of treaty sacredness; 3) propelled negotiation with
Anishinaabe kinship norms of love, care, kindness, the equal treatment of all children, and the
317 Ibid (Supplementary Affidavit of Vice-Chief Denis McIvor (10 July 2006) at paras. 2-8). 318 Craft 2013, supra note 127 at 16.
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mother’s (here, the Queen’s) obligation to ensure her children’s good life; and, 4) confirmed
through Anishinaabe inaakonigewin (law) their relations with Animal Nations and Nimaamaa
Aki (Mother Earth) that bent the scope of negotiations towards sharing, not ceding, the land.319
Vice-Chief McIvor’s affidavit connects “the process of entering Treaty 1” and opening the
territory to immigration and settlement with the reaffirmation of the SBOFN’s right to determine
its own membership. In line with how Craft locates Treaty 1 within Anishinaabe law, McIvor’s
statement confirms an approach to treaties that works against the domestication detailed in
Chapter Two. However, the affidavit also notes that Indian Act status was separated from band
membership with the 1985 amendments to the Indian Act allowing First Nations to adopt their
own membership codes.320 Among other rights, it is only Indian Act status that is mentioned in s.
19(1) of the Immigration and Refugee Protection Act: “Every Canadian citizen within the
meaning of the Citizenship Act and every person registered as an Indian under the Indian
Act has the right to enter and remain in Canada in accordance with this Act.”321 Relying on
the basis elaborated in their affidavit, the SBOFN applied for a declaration that section 19 of the
Immigration Act “be read in a manner which equates membership in a First nation with status
pursuant to the Indian Act.”322 Counsel also emphasized the SBOFN’s inherent right to
determine its own membership prior to, during, and then following the 1871 assertion of British
sovereignty and the process of entering Treaty One.323 The First Nation’s written representations
319 Ibid at 16, 70. 320 Indian Act, RSC 1985, c I-5, s. 10. As noted in the last chapter, these different statuses convey different rights and entitlements (see, e.g., Stewart Clatworthy, Estimating the Population Impacts of the E-Dbendaagzijig Naaknigewin (Winnipeg, MB: Four Directions Project Consultants, 2010) at 6 (report prepared for the Union of Ontario Indians, Nipissing First Nation). 321 IRPA, supra note 274, s. 19(1) (emphasis added). 322 Sandy Bay Materials, supra note 288 (Notice of Application at 4 (“The Applicant makes application for… a declaration that s. 19 of the Immigration Act be read in a manner which equates membership in a First Nation with status pursuant to the Indian Act)). 323 Relying on s. 35 of the Constitution Act, 1982.
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are quite sparse here, largely emphasizing that Sister Juliana had been formally adopted “because
of her good works” and that this case met the requirements for a stay of removal. They recite the
test by arguing that serious issues are at play, the balance of convenience favours Sandy Bay, and
there would be irreparable harm because the physical removal of a member was of great
importance to the Reserve.324 Based on Vice-Chief McIvor’s affidavits, SBOFN counsel
submitted that “the immigration authority has no power or jurisdiction to deport a person who
has formally been adopted by an Aboriginal First Nation.”325
Crown counsel submitted relatively lengthy written representations in response to the First
Nation’s arguments on the motion for stay of removal.326 Key points of attack were the
SBOFN’s lack of standing and the admissibility of an after-the-fact customary adoption that did
not confer Indian Act status. Crown counsel concluded by arguing that there was a “public
interest in having a system which operates in an efficient, expeditious and fair manner and
which, to the greatest extent possible, does not lend itself to abusive practices.”327 Apart from
procedural issues, several of the points discussed above figured prominently in the relatively
short Federal Court decision rejecting the motion to stay Sister Juliana’s removal.
324 Sandy Bay Materials, supra note 288 (Notice of Motion, Applicant’s Representations). 325 Ibid. 326 Ibid (Respondent’s Written Representations). The Crown submitted relatively lengthy written representations challenging: 1) the admissibility of the Applicant’s evidence (adoption took place after the decisions were rendered); 2) the standing of the Applicant First Nation as it was ‘not directly affected’ by the decisions in question and had neither legal standing to enforce the individual rights of individual band members nor public interest standing; 3) the timeliness of the Application (well out of time with no extension sought); 4) the lack of any serious issue and the fact that it was not a legal adoption conferring status under the Indian Act; 5) the pursuit of final relief (conferring registered Indian status on all band members) during an interim and interlocutory proceeding; and, 6) the lack of irreparable harm or any evidence thereof.
327 Ibid. (Respondent’s Written Representations at para. 48 (quoting from Membreno-Garcia v MEI 1992 CarswellNat 63) (T.D.), para. 18)).
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State Sovereignty 10Key points of contention in Justice Harrington’s reasons for dismissing the motion include Sister
Juliana’s vocation, the exercise of immigration powers by First Nations, and her lack of Indian
Act status.328 In oral representations, the SBOFN argued that Sister Juliana was entitled to be
registered under the Indian Act because she was a member of a “band” (i.e. as a body of persons
recognized by the Governor-in-Council for the purposes of the Indian Act).329 The following
excerpts from the short Federal Court decision are worth reading here in full:
The gist of the application is that following the decisions adverse to Sister Eligwe, on 26 June there was an acceptance of and approval of her adoption into the Band membership of the Sandy Bay Ojibway First Nation. […]
The argument continues that the Band has the right to determine its own membership, and has sufficient standing in its own right to challenge the two decisions made on behalf of the Minister because, as the Band Council Resolution reads: "whereas the Chief & Council support all its Band members via birth or adoption into Sandy Bay Ojibway First Nation." […]
Furthermore, an application for a stay is an extraordinary remedy. There must be a serious underlying issue, there must be irreparable harm if the stay is not granted, and the balance of convenience must favour the applicant […]
As to the serious issue, the proposition put forward if brought to its extreme is that each and every band (and there are more than 600) has the power to usurp the discretion of the Minister of Citizenship and Immigration by accepting non-residents as band members and thereby granting them permanent resident status.
It is not necessary for me to comment on the seriousness of the underlying issue, as no case has been put forward that there would be irreparable harm. The argument was simply that Sister Eligwe was a member of the Sandy Bay Ojibway First Nation which had an aboriginal right to designate who are its members and that said members could not be forcibly required to leave the country. If in the course of time that proposition proves to be correct, Sister Eligwe may return.
Furthermore, the balance of convenience favours the Minister. This is certainly one case where the public interest as set out in section 48 of IRPA requires that removal orders be enforced as soon as reasonably practical. The purpose of the adoption appears to be to allow Sister Eligwe to remain in Canada. She is in fact indentured to the First Nation because the resolution also provides "...this Band Council Resolution ... will remain in force until such time as the Sandy Bay Ojibway First Nation and Council rescind these instructions in writing [sic] consent of Chief & Council." Today she is a member of the Band, tomorrow she may not!330
328 Harrington J. notes that he is ignoring certain procedural irregularities in the application (at para. 4). 329 Citing Indian Act, RSC 1985, c I-5, s. 6(1)(b). 330 Sandy Bay, supra note 306 at paras. 5, 7, 11-13 (emphasis added).
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As noted above, the First Nation argued that it can determine its own membership, that Sister
Juliana was a member by virtue of the BCR adopting her, and, due to her adoption, she had an
Aboriginal right to remain in Canada and not be forcibly removed. In addition to other
procedural grounds (such as lack of standing mentioned above),331 Justice Harrington dismissed
these particular arguments because of the potential extreme consequences of having more than
600 First Nations granting permanent resident status to foreign nationals. He also objects to
Sister Juliana’s indentured status with the SBOFN that seems to depend precariously on the
whims of Chief and Council.
The prospect of more than 600 First Nations making immigration decisions only seems
unreasonable if one adopts the perspective of the state. Section 33 of the UN Declaration on the
Rights of Indigenous Peoples [UNDRIP] stipulates that Indigenous peoples have the “right to
determine their own identity or membership in accordance with their customs and traditions” and
that this “does not impair the right of Indigenous individuals to obtain citizenship of the States in
which they live.”332 The vast array of Indigenous laws, legal systems, and legal histories briefly
sketched in Chapter One also normalize the idea that was Indigenous reality: inherent rights to
determine their own membership. From the perspective of the Federal Court, however, this
possibility cuts to the core of conventional state sovereignty. The definition of statehood requires
331 See e.g. Hilary Evans Cameron and Joshua Stark, “Under the IRPA and after Irving: The Right to Standing before the Federal Court for Canadian Children Seeking to Challenge Their Parents’ Deportations” (2013) 46 UBC Law Review 205-240. See also: Cowessess First Nation no. 73 v. Pelletier, 2017 FC 692 (CanLII) at para. 31 (distinguishing Sandy Bay because a First Nation’s interest in the judicial review of a purported (non-Indian status) band member’s immigration status is far removed from and only indirectly affected by the personal immigration matters directly affecting the individual subject to deportation). 332 United Nations Declaration on the Rights of Indigenous Peoples, GA Res 295, UNGAOR, 61st Sess, Supp No 49, UN Doc A/RES/61/295, 46 ILM 1013 (2007), online UNDESA <http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf>, art. 33 [UNDRIP]. See also Shin Imai and Kathryn Buttery [Gunn], “Indigenous Belonging: A Commentary on Membership and Identity in the United Nations Declaration on the Rights of Indigenous People,” in Marc Weller & Jessie Hohman, eds., Oxford Commentaries on International Law: A Commentary on the United Nations Declaration on the Rights of Indigenous Peoples (Oxford: Oxford University Press, 2018), online <http://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1048&context=all_papers>.
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a permanent population, a defined territory, a government, and the capacity to enter into
international relations. In statist theory, Indigenous control over immigration threatens all of
these sovereign attributes. In practice, Indigenous peoples pursued and still seek to maintain
respectful treaty relations geared to mutual care and sharing the land. As noted by Borrows in my
first chapter, the combination of Anishinaabe citizenship with the land with Aboriginal control of
Canadian affairs could result in laws that extend citizenship in Aboriginal communities to non-
Aboriginal people.333 Ideally, Indigenous laws that extend “citizenship with the land” will
actually serve to preserve Anishinaabe relations with the land while transforming our relations
with one another.
The state’s fragility and fear on this topic is real, long-held, and recurrent. Justice Harrington’s
2006 ‘floodgates’ fear of 600 First Nations is reminiscent of Pierre Trudeau’s remarks on
introducing the infamous 1969 White Paper on Indian Policy: “It’s inconceivable, I think, that in
a given society one section of the society have a treaty with the other section of the society.334”
Trudeau’s desire for closure on the past echoes Duncan Campbell Scott’s official reply to the
Haudenosaunee application for membership in the League of Nations in 1924. He feared that
“recognition of the independent or sovereign status of Indians in treaties of cession, not used by
the Dominion of Canada in the international law sense [would mean] the entire Dominion would
be dotted with independent or quasi-independent Indian States allied with but not subject to the
British Crown […] such a condition would be untenable and inconceivable.”335 Apart from fears
of losing sovereignty, the fictitious unity of Canadian immigration law is shown by the recent
333 Borrows 1999, supra note 96 at 340. 334 Cumming & Mickenberg, supra note 10 at Appendix. 335 See Bhatia 2012b, supra note 152 at 167-168 (citing Statement of Government of Canada respecting the "Appeal of the 'Six Nations' to the League" (June 1924) 5 League of Nations Official Journal 829 [Dec. 27, 1923]).
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diffusion of the field and the increasing levels of precarity that characterize immigrant and
migrant status.336
It is ironic that the court is concerned with Sister Juliana’s “indentured” status with Sandy Bay in
the same paragraph that it orders her removal as soon as reasonably practical. Canadian
immigration law is riddled with this type of precarity and conditional status. It underpins the
raison d’être of the statute, which is the insistence that entry and stay remain authorized. Almost
independent of whose account is believed, the quick reversal of status and migrant fortunes was
exactly Sister Juliana’s experience when she first entered on a visitor visa to pursue unauthorized
work as a live-in caregiver. All foreign nationals entering Canada as temporary residents in so-
called low-skill (low-wage) migrant worker programs are here on closed, time-limited work
permits tying them to a single employer, job, and workplace. Depending on a host of factors
usually out of their control, these migrant workers are potentially here today and then gone
tomorrow.337 The IRPA has various procedures for stripping refugees and permanent residents of
their status. These procedures become more or less relevant to people’s lives depending on the
federal government of the day. Anyone applying for permanent residence within Canada who is
sponsored by a family member, employer, or by virtue of their academic enrolment can also (in
the worst cases) feel trapped, silenced, and akin to indentured.338
336 For representative literature see: Bhatia 2012a, supra note 46 (and references therein). More recently, see also Baglay & Nakache 2014, supra note 273. 337 See, e.g., Luin Goldring & Patricia Landolt, eds, Producing and Negotiating Non- Citizenship: Precarious Legal Status in Canada (Toronto: University of Toronto Press, 2013); C. Straehle and P.T. Lenard, eds., Legislating Inequality: Temporary Labour Migration in Canada (Montreal: McGill-Queen’s University Press, 2012). 338 See, e.g., Audrey Macklin, “Foreign Domestic Worker: Surrogate Housewife or Mail Order Servant?” (1992) 37 McGill LJ 681; Abigail Bakan & Daiva Stasiulis, eds, Not One of the Family: Foreign Domestic Workers in Canada (Toronto: University of Toronto Press, 1997); Fay Faraday, Made in Canada: How the Law Constructs Migrant Worker Insecurity (Metcalf Foundation, 2012), online < http://metcalffoundation.com/stories/publications/made-in-canada-how-the-law-constructs-migrant-workers-insecurity/>; Delphine Nakache & Leanne Dixon-Perera, Temporary or Transitional? Migrant Workers’ Experiences with Permanent Residence in Canada (Institute for
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Canada currently has standing agreements to consult with a host of stakeholders, including
provinces, territories, municipalities, employer associations, faith-based groups, the non-profit
sector, linguistic minorities (like Franco-Ontarians), and other states on immigration matters. In
his recent study on The Strategic Constitution, law and policy scholar Irvin Studin comments on
the national importance of population, both with respect to “incentivizing an increased national
birth rate” and “the other essential constitutional power for increasing national population […]
immigration”.339 In discussing the federal government’s power to set the “rate of net growth of
the Canadian population resulting from immigration,” Studin notes that aggregate increases
would likely need to correspond to the Canada-Quebec Accord on Immigration (1991).340 Studin
argues that the Accord’s dual objectives of preserving Quebec’s demographic weight, and
integrating immigrants in a way that respects Quebec’s distinctive identity, serve as quasi-
constitutional limits on the federal immigration power.341 He goes on to note that “massively
increased numbers of immigrants” would bring both “strategic and social benefit” to Canada, not
the least in their ability to help “assert sovereignty… in underpopulated parts of Canada’s huge
geography, such as the North, the Maritimes, and the Prairies”.342 Two separate factors are
particularly telling for my analysis here. First, Quebec’s quasi-constitutional immigration status
through an Accord negotiated under federal immigration legislation might imply a place for
Research & Public Policy, 2015), online < http://irpp.org/research-studies/study-no55/>; Aziz Choudry & Adrian A. Smith, Unfree labour? : Struggles of migrant and immigrant workers in Canada (Oakland, CA: PM Press, 2016). 339 Irvin Studin, The Strategic Constitution: Understanding Canadian Power in the World (Vancouver: UBC Press, 2014) at 96 and following [Studin]. 340 Ibid at 96-7. 341 Ibid 2014 at 97. 342 Ibid at 98. Note, however, that the main focus of Studin’s analysis in the chapter is on geographically dispersed residency obligations of foreign nationals prior to their attaining permanent resident status.
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other national, constitutional, and proto-constitutional343 actors within the determination of net
growth, demographic weight, and integration to distinctive identity.344 Second, proposals for
viewing First Nations as third orders of government or more akin to entities along the lines of
provincial confederation militate in favour of expanding the discussion around treaties and
immigration. 345 This discussion is especially warranted in light of the further provincialization
and privatization of immigration in the wider Canadian context.346 It is also worth noting that
scholars still assume that “the underpopulated parts of Canada’s huge geographies” merely
require the addition of people for the assertion of sovereignty. It is taken for granted that these
lands are under-populated, that they belong to Canada, and that the state has sole authority over
them. As discussed below, this mindset apparently forgets or ignores how the addition of people
to places to assert sovereignty initiated and perpetuates colonialism (as did dispossession and
forced relocations).347
343 See Gordon Christie, “Justifying Principles of Treaty Interpretation” (2000) 26 Queen’s Law Journal 143 in David Arnot, Treaties & the Law: Information Backgrounder (Saskatoon, SK: Office of the Treaty Commissioner, 2007) at 18. 344 However, for a critique of the thin, consultative role of First Nations’ input in the ‘levels and mix’ of annual Canadian immigration targets, see Amar Bhatia, "We Are All Here to Stay? Indigeneity, Migration, and ‘Decolonizing’ the Treaty Right to Be Here" (2013) 13(2) Windsor Yearbook of Access to Justice 39-64 at 50 [Bhatia 2013]. 345 RCAP Vol. 2, supra note 237. See also Russel Lawrence Barsh & James Youngblood Henderson, “Aboriginal Rights, Treaty Rights, and Human Rights: Indian Tribes and ‘Constitutional Renewal’” (1982) 17(2) Journal of Canadian Studies 55-81. 346 See, e.g., F.L. Seidle, Canada’s Provincial Nominee Immigration Programs: Securing Greater Policy Alignment (Montreal: Institute for Research on Public Policy, 2013); Deplhine Nakache and S. D’Aoust, “Provincial and Territorial Nominee Programs: An Avenue to Permanent Residency for Low-Skilled Migrant Workers in Canada?” in C. Straehle and P.T. Lenard, eds., Legislating Inequality: Temporary Labour Migration in Canada (Montreal: McGill-Queen’s University Press, 2012); Delphine Nakache and Leanne Dixon-Perera, Temporary or Transitional? Migrant Workers’ Experiences with Permanent Residence in Canada. IRPP Study 55 (Montreal: Institute for Research on Public Policy, 2015). 347 Regarding earlier Arctic relocations in the Canadian context, see: The High Arctic Relocation: A Report On The 1953-55 Relocation (Ottawa: RCAP, 1994); Alan R. Marcus, Out in the cold: the legacy of Canada's Jnuit relocation experiment in the high Arctic (Copenhagen: IWGIA, 1992); Frank J. Tester & Peter Kulchyski, Tammarniit (Mistakes): Inuit Relocation in the Eastern Arctic, 1939-63 (Vancouver: UBC Press, 1994); A.R. Marcus, Relocating Eden: the Image and Politics of Inuit Exile in the Canadian Arctic (Hanover, N.H.: University Press of New England, 1995).
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Treaties, Newcomers, and Land 11Following the signing of Treaty 1, the Sandy Bay Ojibway First Nation was forced to move
north from Portage-la-Prairie to Sandy Bay (in Marius, Manitoba).348 As noted in Chapter Two,
the treaties are subject to far-reaching contestation between domesticating interpretations versus
Indigenous treaty principles. This contestation includes the forgetfulness of state and non-state
authorities. The Stone Fort Treaty (Treaty 1) is no exception to colonial amnesia. The Stone Fort
Treaty is the same treaty that then-Governor General Adrienne Clarkson helped to recognize
when re-enacting treaty ceremonies as the Crown’s representative on the 130th anniversary of the
treaty.349 As part of her reflections on the theme of the lecture, Clarkson noted the following:
I recall again here that the treaty ends by stating that this bond “will hold as long as the sun shines, the rivers flow and the grass grows.” Those treaties were entered into in good faith by the native peoples. I would like us, who came later, who live those treaties, to honour them. I believe that we will not be able to continue to deal with difference in our country until we have honestly dealt with the original promise to our Aboriginal peoples.350
Attempts to honour the treaties have yet to really contend with ‘difference in our country’ in a
way that respects the ongoing treaty relationships and continuing Indigenous legal authority.
Honest dealing with original promises would translate to more than Indian Act rules or the ad
hoc customary adoption of individuals. As discussed in Chapter One, the adoption-centric vision
of Anishinaabe citizenship is grounded in the self-determined control of associations and the
demonstration of care. Although not radically different in function from the H&C factors that
were assessed, this care-based vision of adoption was outright rejected. Officer Fraser noted that
Sister Juliana had, in fact, established herself in Canada on the basis of this work. Nonetheless,
Justice Harrington treated the spiritual assistance discussed in Sister Juliana’s H&C application
348 Sandy Bay Ojibway First Nation, online < http://www.sandybayfirstnation.com/about-us.html>. See Sandy Bay Ojibway First Nation: Treaty Land Entitlement Inquiry (Ottawa: Indian Claims Commission, June 2007) at 5, 12-13, 47 (also detailing SBOFN’s struggles for recognition in order to secure a reserve after the paper treaty was signed). 349 Clarkson, “Society of Difference” (2007) at 27. 350 Clarkson, “Society of Difference” (2007) at 28.
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with relatively short shrift. The court came to this conclusion notwithstanding that Vice-Chief
McIvor noted her care for the child survivors of a youth suicide epidemic kept perpetual by the
Canadian state and society.351
Forgetting treaty obligations remains part of the wider set of tactics within the longer-running
strategy of elimination in Canada. This strategy of elimination works in tandem with the
simultaneous emphasis on peoples and lands in state sovereignty. Before, numbered treaties were
negotiated and reduced to written versions that did not reflect the full context but provided land
and permission for settlers. The settlers and successive governments then enacted legislation
empowering them to unilaterally remove children from these communities (including Sandy
Bay) and take them to residential schools.352 Now, the SBOFN is prevented from choosing to
maintain relations with a person who cared for the youth and community suffering from suicides
and intergenerational trauma due to these schools. In the same period, the First Nation was also
forced to contest the Crown’s transfer of prime real estate in downtown Winnipeg to the private
Canada Lands Company (which would then sell off the Treaty One lands without any duty to
consult).353 This First Nation’s experience is a particularly clear example of the ongoing settler-
colonial foreclosure of Indigenous futures through continued Canadian control over Indian lands,
government, and people. While the jurisprudential limits of customary adoption currently
frustrate farther-reaching approaches, they are important to consider for what they “allow” as
much as for what they cannot yet imagine.354
351 Sandy Bay, supra note 306 at paras. 14-16. 352 The historical volumes of the TRC Final Report detail the trials faced by the community and attendees of the Sandy Bay Residential School (see TRC Volume 1, supra note 235). 353 See Canada v. Long Plain First Nation, 2015 FCA 177 (CanLII), online < http://canlii.ca/t/gkpkl> (holding failure of duty to consult with Treaty One First Nations regarding transfer/sale of former armed forces base, Kapyong Barracks, but not in the case of SBOFN due to their treaty land entitlement being found already fulfilled). 354 See e.g. Marilyn Poitras and Norman Zlotkin, An Overview of the Recognition of Customary Adoption in Canada (Saskatchewan First Nations Family & Community Institute Inc., Feb. 2013) at 31.
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Indigenous Mobility and Relations 12While the court found no grounds to stay Sister Juliana’s removal from Canada, the decision
does hint at a potential return in the future: “If in the course of time that proposition proves to be
correct, Sister Eligwe may return.355” Justice Harrington is referring to the proposition that
members of a First Nation (with an Aboriginal right to designate its members) could not be
forced to leave the country.356 While the First Nation’s counsel said there were no instructions to
appeal here, in part due an unfavourable factual record, the issue obviously remains a live one.
The government takes the position that such customary adoption applies only with respect to
minors and that customary adoption of adults and band membership remain ceremonial and
separate from Indian Act status.357 Any legal fight to find the connection between the two with
its related implications for immigration and refugee law will be hard fought. The Supreme Court
of Canada’s 2001 Mitchell decision is relevant here.358 The Court sought to rule on an Aboriginal
right to cross the border without payment of customs/duty on goods. Justice Binnie observed the
following in his concurring reasons:
Control over the mobility of persons and goods into one country is, and always has been, a fundamental attribute of sovereignty. […] In other words, not only does authority over the border exist as an incident of sovereignty, the state is expected to exercise it in the public interest. The duty cannot be abdicated to the vagaries of an earlier regime whose sovereignty has been eclipsed (Cain, supra, at pp. 545-46).
The legal situation is further complicated by the fact, previously mentioned, that the respondent attributes his international trading and mobility right not to his status as a Canadian citizen but as a citizen of the Haudenosaunee (Iroquois Confederacy) based at Onondaga, New York. Border conditions in the modern era are vastly different from those in the 18th century. Nevertheless, as
355 Sandy Bay, supra note 306 at para. 12. 356 Ibid at para. 12. 357 See also Stevenson 2015, supra note 75 (on the state’s desire to avoid expanding status populations leading to controversy around the adoption of a 3/4 white girl by an Indian status/treaty Indian couple, combined with 1951 Indian Act revisions restricting adoption to ‘Indian’ children only). Note that the current Indian Act takes a wider approach (though still restricted to minors): child includes a legally adopted child and a child adopted in accordance with Indian custom (s. 2(1)). On elder testimony contrary to the restriction to minors only, see Poitras & Zlotkin, supra note 354 at 31. 358 Mitchell v M.N.R. [2001] 1 SCR 911 [Mitchell]
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stated, borders existed among nations, including First Nations. They were expressions of sovereign autonomy and then, as now, compelled observance.
The courts of the United States, being in this case the country of export, also view border controls as incidental to territorial sovereignty. […] Similar views were expressed by scholars writing before the Canada-United States border was ever established. E. de Vattel, whose treatise The Law of Nations was first published in 1758, said this:
The sovereign may forbid the entrance of his territory either to foreigners in general, or in particular cases, or to certain persons, or for certain particular purposes, according as he may think it advantageous to the state. There is nothing in all this that does not flow from the rights of domain and sovereignty: every one is obliged to pay respect to the prohibition; and whoever dares to violate it, incurs the penalty decreed to render it effectual. (The Law of Nations (Chitty ed. 1834), Book II, at pp. 169-70)
To the same effect is Blackstone, supra, at p. 259. […]
In my view, therefore, the international trading/mobility right claimed by the respondent as a citizen of the Haudenosaunee (Iroquois) Confederacy is incompatible with the historical attributes of Canadian sovereignty.359
Binnie J.’s rejection of Haudenosaunee international trading and mobility rights here draws on
several lines of authority bolstering settler sovereignty, from Canadian and American case law to
the European law of nations. Not surprisingly, all of these authorities support the fundamental
and inherent sovereign right to control who and what may enter or may be excluded. The Court
also recognizes that borders existed among First Nations and that they were ‘expressions of
sovereign autonomy’, too. Nonetheless, and despite the slippage between the use of ‘state’ and
‘nation’ above, the weight of all these authorities somehow supports usurping expressions of
Indigenous sovereign autonomy. Why? In the specific case of Haudenosaunee mobility rights,
and still more broadly, they would be “incompatible with the historical attributes of Canadian
sovereignty.” The claimed Haudenosaunee trading/mobility right is incompatible with the
historical attributes of Canadian sovereignty. Were they incompatible then, now, or at both
times? The Court acknowledges that “[b]order conditions in the modern era are vastly different
359 Ibid at 989-991 (emphasis added) (note that this appeal concerned Aboriginal, as opposed to treaty, rights, and the Court applied the relevant test from Van der Peet, finding that the evidence did not establish the claimed right (and that (in obiter) even if it had, that the right would likely be barred as incompatible with the Crown’s sovereign interest in regulating its borders).
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from those in the 18th century”. Why are border conditions vastly different? The Court does not
say. How did they get this way? The Court does not say. Instead, the emphasis is simply that
they “did not survive the transition to non-Mohawk sovereignty” and thus were not ‘existing’
aboriginal rights under s. 35(1) of the Constitution Act, 1982.
However, there are potential signs that the state’s guard over border control will continue to be
challenged in the context of Indigenous rights. The Federal Court of Appeal’s 1998 decision in
Watt v Leibelt was a welcome show of judicial restraint in contrast to the Mitchell decision and
Justice Binnie’s state-centric concurrence. Watt addressed “whether it could be contrary to an
existing Aboriginal right of an Aboriginal people of Canada, as guaranteed in the Constitution,
for an Aboriginal person who is a foreign national, and neither a Canadian citizen nor registered
under the Indian Act of Canada, to be ordered to depart from Canada for a crime committed
here.”360 The appellant was a member of the Sinixt or Arrow Lake people whose traditional
territory crossed the Canada/US border between British Columbia and Washington State. He had
been living in British Columbia for more than a decade and was convicted for growing cannabis,
which brought him to the attention of the immigration authorities. He argued that he could not be
ordered to leave Canada due to his Aboriginal rights. An adjudicator held that she did not have
jurisdiction to decide whether he was “an Aboriginal person of Canada” and found him subject
to removal due to his conviction. His application for judicial review was dismissed at the Federal
Court (Trial Division) because the motions judge held that any Aboriginal rights claimed by the
appellant would have been extinguished by the relevant sections of the 1977 Immigration Act
(limiting the right to enter or remain to citizens, permanent residents, and registered Indians).
The motions judge also certified the following question: “Does an aboriginal person who is a
360 Watt v. Liebelt, [1998] F.C.J. No. 1931 (QL) at para. 1 [Watt]
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member of a tribe whose traditional territory straddles the Canada-U.S. border, and who is
neither a Canadian citizen nor a person registered under the Indian Act, have a right to come into
or remain in Canada?”361 Writing for the court, Justice Strayer concluded that a nuanced
approach was warranted and declined to completely answer the question in the absence of
relevant evidence and legal argument. He did conclude that “the sovereign nature of Canada is
not a legal barrier per se to the existence of the aboriginal rights as claimed, but I believe that this
Court can go no farther in answering question 1.”362 In coming to this conclusion, Justice Strayer
laid out his reasoning:
The respondent contends that the existence of a sovereign state is inconsistent with any fetters on the power of that state to control which non-citizens may remain in the country. Suffice it to say that while there is ample authority in international and common law for that proposition, a sovereign state may fetter itself as to the means by which, the circumstances in which, and the agencies of government by which, such power of control may be exercised. Canada has by its Constitution limited the exercise of governmental powers which may be inherent as a sovereign state. […]
In the same vein, section 35 of the Constitution Act, 1982 now guarantees existing aboriginal rights not previously extinguished, and this carries the corollary that no agency of the state can, after 1982, extinguish those rights. As long as the Constitution remains unamended, Canadian authorities are subject to this limitation on what would otherwise be an incident of sovereign power. In fact, in adopting section 35, Canada has exercised its sovereignty by establishing a hierarchy of rights exercisable in Canada: a hierarchy which can only be altered by another exercise of sovereign power, namely the amendment of the Constitution.
363
In comparison to Justice Binnie’s concurring reasons in Mitchell, these comments are much
more restrained in terms of the issue of sovereign incompatibility.364 Justice Strayer’s analysis
was recently endorsed in a 2017 Provincial Court decision that acquitted Richard DeSautel of
361 Ibid at para. 5. 362 Ibid at para. 18. 363 Ibid at para. 15. 364 Note that in Mitchell Binnie J. does distinguish Watt on the basis that Watt was about post-1982 extinguishment while Mitchell concerned “the prior question of whether claimed international trading and mobility right could, as a matter of law, have arisen in the first place” (Mitchell, supra note 358 at paras. 170-171).
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Wildlife Act offences in B.C.365 DeSautel is an American citizen and a member of the U.S.-
based descendants of the cross-border Sinixt people of B.C.; he was charged with hunting
without a licence and for hunting big game as a non-resident.366 His defence was the he had an
Aboriginal right to hunt in his ancestors’ traditional territory.367 Provincial Court Justice
Mrozinski distinguished Mitchell and Justice Binnie’s reasoning, holding that:
I do not find it necessary in this case to define Mr. DeSautel's claim as including a mobility right. The right as I find it ought to be defined is not, in my view, incompatible with sovereignty. That being said, I do not in any way discount the significance of border control as an incident of sovereignty. I find, however, that this important fact can be addressed without at the same time erasing the memory and existence of the Sinixt from the Canadian historical landscape. I find support for this in the reasons of Strayer J. at para 17 of Watt v. Liebelt, [1999] 2 F.C. 455 where it was noted that proper control of the border may well be a justification for Canada to control or limit in some way the exercise of relevant and unextinguished Aboriginal rights. Naturally, this assumes the right is protected by s. 35(1), a matter I will address shortly.368
These decisions point to some cracks in the armour of state sovereignty, but asserting Aboriginal
rights in the context of borders and migration is painstaking and subject to staunch government
opposition.
The recent Federal Court of Appeal decision of Lewis v. Canada highlights how far these
arguments have come and how far they still have to go. In Lewis, the court heard the appeal of an
application for judicial review that had been dismissed. The application was made in order to
attempt deferring a deportation pending the outcome of an application for H&C relief and a
request to re-open an immigration appeal. The facts stemmed from the impact that a Guyanese
father’s removal would have on his then 8 year-old Canadian daughter of Indigenous heritage
(Gwich’in First Nation, Inuvik) (and her likely need to accompany him if sent back to Guyana).
The FCA addressed two questions certified by the court below:
365 R. v. DeSautel [2017] BCJ No. 558 (Prov. Ct.) [DeSautel] 366 Ibid at para. 3. 367 Ibid at para. 3-4. 368 Ibid at para. 146 (instead finding aboriginal right to hunt in Sinixt traditional territory in B.C.).
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a. Do the principles set out by the Supreme Court of Canada in R. v Gladue, R. v Ipeelee, and R. v Anderson apply, mutatis mutandis, to removals under section 48 of the IRPA such that there must be a full consideration of the impact on an Aboriginal child of the removal from Canada of her non-citizen custodial parent prior to the execution of the removal order?
b. Does Section 7 of the Charter of Rights and Freedoms mandate Gladue-like consideration of the impact of the removal of an Aboriginal child’s custodial parent prior to the execution of the removal order?
369
While Justice Gleason answered both questions in the negative, the court did allow the appeal
due to the Enforcement Officer’s unreasonable consideration of the best interests of the child.
Although the daughter’s best interests won the day in Lewis, the court reached this conclusion on
the basis of the deciding officer failing to consider the impact of removal on maintaining her
connection with her Indigenous culture, heritage, and territory. The decision was unreasonable
because of the Enforcement officer’s assumption that an 8 year-old child could return to Canada
from Guyana “at any time to participate in ‘dances, pow wows, speakers and special events, as
well as native Aboriginal centres and Native art shows’.370” Contrary to established
administrative law principles, the court found that the Enforcement officer had “no realistic basis
for concluding that the child could maintain any such connection if she were in Guyana.371”
Reviewing the decision on this basis depends on general Canadian administrative law principles
of reasonableness and fairness. The Indian Act status and band membership of Mr. Lewis’
daughter were not enough on their own to keep her father in the country. The court also declined
to extend quasi-constitutional Aboriginal law criminal sentencing principles to the removal
context.
369 Lewis v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 (CanLII), online <http://canlii.ca/t/h4g2q> [Lewis] at para. 3.
370 Ibid at para. 90. As noted by the Federal Court of Appeal, the Enforcement Officer was quoting the listed activities from Lewis’ factum, but found that this description “belittles the profound nature of the degree of connection to culture, heritage and territory that is likely important and desirable for an indigenous person to maintain” (para. 91). 371 Ibid at para. 92 (relying on Baker v. Canada (MCI), [1999] 2 SCR 817, for a sensitive analysis of the best interests of the child).
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Based on a s. 7 constitutional argument implicating criminal sentencing and Aboriginals, this
ground was held not to apply because s. 7 liberty interests were found not to be at stake. Even
though the TRC Final Report describes the removal of Indigenous children as amounting to
cultural genocide,372 this connection is not made here. The court notes that interests under section
97 of the IRPA are not engaged by either Lewis’ deportation or his daughter’s forced move to
Guyana. Section 97 interests include removal that would subject someone to a personal danger of
torture or a risk to someone’s life or a risk of cruel and unusual treatment or punishment.
The court also cites earlier cases holding that the removal of parents of Canadian-born children
to countries of origin, when those parents are inadmissible to remain in Canada, also does not
engage the s. 7 interests of their children.373 The court notes that a non-Indigenous child would
thus have no basis to assert that their s. 7 rights are impacted by a parent’s removal. As noted by
the court: “I fail to see how the child’s Indigenous heritage mandates a different conclusion.
While her heritage is very significant to the type of analysis required to adequately address her
short-term best interest in the context of the removal process (as is more fully discussed below),
her heritage does not, of itself, give rise to a Charter-protected interest that prevents her father’s
removal, and this is not changed by Mr. Lewis’ invocation of the Gladue principles.”374
Undoubtedly, the court should be applauded for citing the TRC Final Report on the incidence of
Indigenous children apprehended to state care and/or being raised by non-Indigenous parents
without connections to their culture or territory.375 But the courts are still far away from
acknowledging, for instance, that Lewis’ daughter should be able to sponsor or adopt her father
372 TRC Executive Summary, supra note 229 at 1. 373 Lewis, supra note 369 at para. 64. 374 Ibid at para. 65. 375 Ibid at para. 86.
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under Indigenous law and that this should have consequences for Canadian immigration and
border control.
While it might be worth wondering what difference customary adoption would make in these
circumstances, the foregoing authorities make it clear that the intersection of sovereignty and
race-based thinking still plays a huge role in this area. Even if his daughter’s community had
customarily adopted Mr. Lewis, government lawyers would still presumably object because such
an adoption would not come with the Indian Act status mentioned as necessary to enter and
remain under s. 19 of the IRPA. As seen in Sandy Bay, customary adoption was not enough to
get a Nigerian nun over the status bar. If such facts and arguments had been present in Lewis, it
likely would have been rejected, too. By contrast, in DeSautel, an enrolled member pursuing
cross-border hunting was able to overcome the hurdle of Indian Act status in the context of
entering and remaining in the country by Aboriginal right.
While I agree with the results in Lewis and DeSautel, they follow the logic of Sandy Bay (with its
less favourable outcome in that case). These cases operate on the presumption that Indigenous
communities cannot challenge the state’s monopoly over sovereign attributes. DeSautel was
successful because he was able to establish an Aboriginal right predicated on the previous fact of
centuries-long Sinixt occupation prior to the establishment of state borders in that territory. In the
absence of this evidence, he would not have been successful had he simply been invited by an
Indigenous community to engage in hunting that led to Wildlife Act charges due to his lack of
licence and residency. Without Canadian Indian Act status or a visitor or work permit of some
kind, Indigenous heritage is simply not enough in the absence of a constitutional Aboriginal
rights argument of some pre-existing relationship to an Indigenous community in Canada.
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Directly and indirectly, these cases give priority to state sovereignty and ignore or reject the kind
of Indigenous authority to make and maintain relations discussed in Chapter One. These cases
also have the effect of producing precedents that limit interactions between immigration law and
Aboriginal law (and leave no room for Indigenous legal traditions). Where these interactions are
forced to take place by the facts of people’s lives, the state’s monopoly over decision-making is
emphasized in both areas of law. The courts are also clearly struggling with the use and
interpretation of Indigenous law in land title cases and the best of circumstances. 376 This struggle
leaves them quite some distance from putting Indigenous laws in the same conversation as
immigration law. However misplaced in light of treaty relations, the fears over diluting state
sovereignty by multiplying immigration authorities are also palpable. The intersection of state
and race-based thinking is clear in these areas because there is no reluctance to cede and deal
sovereign decision-making in many other aspects of immigration, trade, etc. In the end, it comes
down to who is seen as having the authority to be the host, whether acting in hard refusal or
making benign exceptions. We still have a long way to go before authority over immigration is
no longer seen as antithetical to Indigenous peoples.
Outside of the courts, state sovereignty runs equally roughshod over the political negotiation of
Indigenous immigration rights. As seen in my conclusion, this obstacle is clear with the “Scope
of Negotiations” in Canada’s Approach to Implementation of the Inherent Right and the
Negotiation of Aboriginal Self-Government. “Immigration, naturalization, and aliens” fall
squarely within Canadian sovereignty as essential matters to keep under the authority of federal
376 See e.g. Karen Drake, “Finding a Path to Reconciliation: Mandatory Indigenous Law, Anishinaabe Pedagogy, and Academic Freedom”, Canadian Bar Review (forthcoming). See also Borrows 2010a, supra note 3 at 46 (“You say Indigenous law exists; I don’t believe it for a moment” – provincial appellate court Chief Justice).
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lawmaking and beyond the scope of Indigenous self-government.377 It is likewise apparent in the
Nisga’a Final Agreement (NFA) mentioned in the last chapter, where the enrolment provisions
state that they do not impact Canadian immigration law or Indian Act status.378 Fortunately, this
journey does not need to take place solely within the court and policy silos of Canadian
immigration law and Canadian Aboriginal law. I have argued that the long practices and clear,
systemic vision of Indigenous legal traditions for making and maintaining relations provide an
alternative foundation to address the messy mix of sovereignty, adoption, and migration.
Conclusion 13As seen above, the core problem remains the continued inability to see that migration,
membership, and adoption are at the core of Anishinaabe law, citizenship, and life, with the
understanding that Anishinaabe peoples should be able to control their associations in a manner
determined by obligations of caring. The absence of this understanding guarantees that the
settler-colonial cycle of elimination, taking lands, and re-peopling for state benefit will continue
unabated. This cycle runs on the sturdy, pliable frames of Aboriginal law, immigration law,
property law and a unilateral, domesticating approach to the treaties. It also precludes
meaningfully acknowledging the Indigenous adoption of settlers when they were the weakest and
most dependent beings on Turtle Island, thus forbidding the presence of Indigenous laws as
authorities in the realm of immigration.
Ultimately, membership making is key to the state and all polities. It is guaranteed by the
UNDRIP and both migration and adoption are at the heart of Anishinaabe law and society. They
have not been extinguished and cannot be restricted to solely what the common law, Canadian
377 See “The Government of Canada’s Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government”, online INAC <http://www.aadnc-aandc.gc.ca/eng/1100100031843/1100100031844> 378 Nisga’a Nation, Canada, & British Columbia, Nisga'a Final Agreement (1998), c 20, s. 1-2 [NFA]
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statutes, or Crown self-government policies choose to recognize. As argued in Chapter One, the
diversity of Indigenous legal systems for making and maintaining relations includes customary
adoption, political and economic adoption, landed citizenship, and treaty relations. All of these
systems are capable of integrating newcomers.
Apart from future test cases or policy developments, there is a much more all-encompassing set
of relations in which we are all already embedded: Indigenous laws of adoption and immigration
as set forth in living treaties guided by Indigenous legal interpretations. The promise of this
wider perspective runs up against the fearful symmetry of the Indian Act and the Immigration
Act, leaving slight space in between for the Indigenous laws and societal reproduction necessary
for the transformation of all our relations.
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Chapter 4 Conclusion
There have been grudging movements towards reconciliation in the Supreme Court of Canada
and hopeful Calls to Action from the Truth and Reconciliation Commission (TRC) into Indian
Residential Schools. These developments emphasize the need to move beyond unilateral
assertions of conventional Canadian sovereignty towards reconciliation. They have also been
accompanied by a growing awareness of the need for settlers to acknowledge that they are treaty
people and have a “treaty right to be here.” Acknowledging this fact should lead one to ask what
the treaties are and what informs their interpretation. Indigenous laws and legal systems are the
answer to this question. As seen in earlier chapters, Indigenous laws include sources and systems
for re-peopling their societies and welcoming others through treaty relations and customary laws
of adoption. It seems only a matter of time before Aboriginal rights to extend membership that is
determinative of immigration status will be recognized again. The best way of doing so would be
through a revitalized structure of treaty relations informed by resurgent Indigenous laws and
legal traditions. This conclusion builds on the arguments made in the previous chapters and
contends that state sovereignty remains a significant, but not insurmountable, barrier to
Indigenous self-determination and Canadian reconciliation.
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Introduction 14“We are all here to stay.”379
“We are all treaty people.”
“We’re stuck with one another.”380
Geared to reconciliation in diverse registers, none of these statements are true yet. The state laws,
policies, and court cases discussed in this dissertation underscore the aspirational quality of these
statements. These state laws include the 1867 Constitution Act, the1869 Immigration Act, and
the 1876 consolidated Indian Act and beyond. Through the combined force of these statutes, tens
and hundreds of thousands of people have been shifted around at the will of a state in the process
of constructing itself. The state was built by clearing Indigenous peoples from Indigenous lands
and then re-peopling those lands with European settlers. After successfully re-populating the
country, the state sought to maintain its newfound monopoly power over the constituent elements
of territory, population, government, and international relations. This goal has been pursued
through the domestication of the treaties, the reduction of nation-to-nation relations to a
relationship between individuals and the state, the state’s removal and control of generations of
Indigenous children, the replacement of Indigenous governments, and the erasure of Indigenous
legal systems for making international relations and integrating newcomers.
The Sandy Bay decision succinctly portrays the gap between the three statements above and our
current reality in the immigration context. Despite being a Treaty First Nation, there was no
sense that Treaty One mattered to the court or the outcome in Sandy Bay. Sister Juliana was
379 Delgamuukw v British Columbia, [1997] 3 SCR 1010 at para 186. 380 Adapted from Johnson 2007, supra note 96 at 105 (“Sorry, Kiciwamanawak, you’re stuck with me.”).
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pointedly not ‘here to stay’ and there was nothing that the First Nation could do about it outside
of the permission of the state. For those not born in Canada, the only available avenues were the
Immigration and Refugee Protection Act (IRPA) and the Indian Act. Unlike the loose definitions
and open door policies available in the late 1800’s, these statutes are no longer geared to massive
settlement or Indigenous segregation. Instead, they seek to maintain the status quo through
assumptions of Indigenous assimilation and immigrant exclusion. In the past, the immigration
law lacked deportation provisions and settlers arrived to free land and the expectation of
permanent status in three years. Now, the IRPA requires express authorization for any foreign
national to enter and remain in the country on a temporary or permanent basis. Ineligible for
permanent entry, Sister Juliana entered and stayed as a temporary resident under a number of
different statuses. Even though she was found to have established herself in Canada, she ran out
of formal options for authorized stay and failed to secure discretionary permission to become a
permanent resident from within Canada. In recognition of the connections she had made
(including care work) with the community and youth, the Sandy Bay Ojibway First Nation
adopted Sister Juliana and took over her court case to stay her removal from Canada. This
attempt failed for the reasons discussed in the last chapter.
Following the failure of the Meech Lake Accord and the Oka/Kanehsatà:ke crisis, the Royal
Commission on Aboriginal Peoples (RCAP) set out specific recommendations to work against
the domestication of treaties and Indigenous peoples. These measures included the promulgation
of a new Royal Proclamation, the ability to revisit and revitalize treaty language, an emphasis on
negotiation and enshrining these rights within legislation rather than ad hoc policy-making, and
the establishment of treaty commissions emphasizing the benefits derived from treaties by non-
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Indigenous peoples.381 As recently noted in the TRC Final Report, much work remains to be
done on all of these fronts382. The next sections explore some of these developing understandings
of renewed treaty relations and reconciliation. I also assess continuing barriers to their
achievement in the absence of the fundamental changes called for by the RCAP and the TRC.
A Call to All Treaty People 15In 1995, Dudley George was shot and killed by an OPP officer two days into a peaceful
occupation of Ipperwash Provincial Park by former residents of the Stoney Point Reserve. In the
long years and litigation that followed, an inquiry was eventually held into his death and the
surrounding political, legal, and historical circumstances and context. The Inquiry’s final report
is worth reading for its comprehensive history of treaty relations in Ontario and how the federal
government had long failed to return the disputed reserve land that had been expropriated for
military purposes during WWII. The review of treaty relations, their subsequent domestication,
and government assimilation starts and ends with the Royal Proclamation of 1763 (intended to
place the Crown between Indigenous peoples and settlers). The review notes the importance of
Indigenous laws of making relations and how the British followed these laws and presented
wampum belts at the 1764 Treaty of Niagara to authorize the earlier Royal Proclamation. Justice
Sidney Linden writes the following in his final report:
… the Treaty of Niagara was entered into in accordance with Aboriginal protocol, including speeches and wampum belts. The British, through their representative Sir William Johnson, gave the Anishnabek two wampum belts, the “Great Covenant Chain Belt,” and the “Twenty-four Nations Belt.” With the Great Covenant Chain Belt, the British promised that the Anishnabek would not become impoverished and their lands would not be taken. The Anishnabek promised in turn to be loyal and to support the King in both peace and war.
381 See RCAP Vol. 5, supra note 237 at Appendix A, Summary of Recommendations at Recs. 1.16.1-1.16.2, 2.2.7-2.2.13, 5.1.1, 5.4.7. 382 See, e.g., TRC Executive Summary, supra note 229 at 336 (Call to Action #45 on proposed Royal Proclamation and Covenant of Reconciliation).
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The Twenty-Four Nations Belt, also accepted by the Anishnabek, has twenty-four human figures representing the Anishnabek Nations drawing a British vessel laden with presents from across the Atlantic and anchoring it to North America. This Belt promised that the British would always provide the necessities of life should the Anishnabek find themselves in need.
The Royal Proclamation and the Treaty of Niagara are not obsolete relics. The Proclamation remains part of constitutional law in Canada to this day. In 1982, it was incorporated into the Canadian Charter of Rights and Freedoms. Section 25 of the Charter states that the rights and freedoms recognized by the Proclamation take precedence over other rights and freedoms in the Charter. The promises of protection and sustenance made at Niagara remain the basis for the honourable and beneficial relationship with Aboriginal peoples toward which we should be working.383
As noted in Chapter One, the use of wampum belts to signify treaty relations between nations
was both commonplace and covenantal. In the prospective, policy-oriented volume of the final
Ipperwash report, Justice Linden places particular emphasis on re-honouring these treaty
relations for the future of the province and for Indigenous peoples. He notes that it is “imperative
that the phrase ‘we are ally treaty people’ resonate with all Ontarians”384 and that a key lesson
from Ipperwash “is the realization that all of us in Ontario, Aboriginal and non-Aboriginal, are
treaty people.”385
383 Ontario, Report of the Ipperwash Inquiry: Policy Analysis, Vol. 2 (Toronto: Ministry of the Attorney General, 2007) at 45-46 (I have interspersed the images of the wampum belts here, which are not included in the original text from the Inquiry report). See also: Ontario, Report of the Ipperwash Inquiry: Investigation and Findings, Vol. 1 (Toronto: Ministry of the Attorney General, 2007), online: Ipperwash Inquiry <https://www.attorneygeneral.jus.gov.on.ca/inquiries/ipperwash/report/index.html> [Ipperwash Inquiry] 384 Ibid, Vol. 2, 158 (section on elementary and high school education). 385 Ibid, Vol. 2, 44.
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This growing emphasis on the fact that all Canadians are treaty people has been building for
some time.386 Usually mentioned in serious tones, it has also been the subject of satire for the
sake of garnering attention:387
386 See e.g. James Sákéj Youngblood Henderson, “Sui Generis and Treaty Citizenship” (2002) 6(4) Citizenship Studies 415 at 417-433 (citizenship presence relies and depends on treaties, in relation to Aboriginal legal orders and traditions, which did not have the concept of strangers so much as everyone was a guest; the treaties remain the original constitution of Canada and we need to learn to belong to the territory/ecology); Johnson 2007, supra note 96; Miller 2009, supra note 24. See also, Robinder Kaur Sehdev, “People of Colour in Treaty” in Ashok Mathur et al, eds, Cultivating Canada: Reconciliation through the Lens of Cultural Diversity (Ottawa: Aboriginal Healing Foundation, 2011) at 267-272; Saskatchewan Office of the Treaty Commissioner, “We Are All Treaty People” online <http://www.otc.ca/education/we-are-all-treaty-people>; Venne 2007, supra note 119 at 5. 387 See Briarpatch Magazine “Settler Treaty Card” online: Briarpatch Magazine <https://briarpatchmagazine.com/settlertreatycard> (and also Tyler McCreary, “Settler Treaty Rights”, Briarpatch magazine (August 2005) online: Briarpatch Magazine <www.briarpatchmagazine.com/articles/view/settler-treaty-rights>). See also ‘Certificate of Settler Status’ (designed by Dawnis Kennedy) in Nadia ‘Ziishiib’ Verrelli, Minnawaanigogiizhigok/Dawnis Kennedy and Amar Bhatia, “The Politics of Inclusion/Exclusion: Best Practices in Immigration Policy Since 1492” (Paper delivered at ‘Encounters in Canada: Contrasting Indigenous and Immigrant Perspectives’ Conference, Toronto, 15 May 2013).
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Underlying all of these articulations, even the satirical, is the recognition that a relationship
exists, that it underpins continued presence on the land, and that it cannot be extinguished. As
noted by Borrows: “Non-indigenous peoples also have treaty rights. If treaties are considered
foundational agreements, they allow all to claim their place in their country, not through force,
but through peace and agreement.”388
As noted in Chapter Two, the contestation of treaties and their terms has taken place both
domestically and internationally through the counter-narratives put forth by Indigenous peoples
and nations, including Indigenous elders and scholars.389 These efforts have included a campaign
directed at the imperial Crown through challenges brought by national Indigenous organizations
to patriation. While unsuccessful in the British courts, which held that the treaty obligations no
longer lay with the British Crown, this challenge did result in Lord Denning (M.R.) noting that,
“No parliament should do anything to lessen the worth of these guarantees. They should be
388 See John Borrows, “Ground Rules: Indigenous Treaties and Legal Foundations” (2006) 36 NZULR 188 at 195 and following (“The Crown certainly received many benefits from the treaties. Their citizens were able to settle and develop large parts of the country with the prior residents’ permission.”). 389 For example, see references, supra note 188.
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honoured by the Crown in respect of Canada ‘so long as the sun shines and the river flows’”.390
This litigation was part of the larger political campaign for the inclusion of Indigenous peoples in
the patriation process (e.g. ‘Constitution Express’ protest train)391 and the text in section 35 of
the Constitution Act, 1982.392 The section reads as follows:
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.
(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.
Similar decades of sustained efforts spanning from the League of Nations to the United
Nations393 culminated in the final language on treaties in the United Nations Declaration on the
Rights of Indigenous Peoples:
1. Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honour and respect such treaties, agreements and other constructive arrangements.
2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of indigenous peoples contained in treaties, agreements and other constructive arrangements.394
390 R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Indian Association of Alberta, [1982] 2 All E.R. 118 at 132 (C.A.). See also: Manuel and others v Attorney, [1982] 3 All ER 786 at 799 (H.C.). 391 For discussion of the Canadian and British legal and political strategies of different organizations, including litigation in England, see Douglas Sanders, “The Indian Lobby” in Keith Banting and Richard Simeon, eds., And no one cheered: Federalism, Democracy and the Constitution Act (Toronto: Methuen, 1983) at 301-332. More recently, see Louise Mandell and Leslie Hall Pinder, “Tracking Justice: The Constitution Express to Section 35 and Beyond” in Lois Harder and Steve Patten, eds., Patriation and Its Consequences: Constitution Making in Canada (UBC Press, 2015) at 180. 392 Section 35, The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11 (emphasis added). Section 35.1 deals with federal and provincial government commitments to the principle to hold constitutional conferences between the Prime Minister, first ministers, and representatives of the Aboriginal peoples of Canada before amending the Constitution Act, 1867 or 1982 with respect to Indigenous peoples. 393 See, e.g., James Sa’ke’j Youngblood Henderson, Indigenous diplomacy and the rights of peoples: achieving UN recognition (Saskatoon: Purich Pub., 2008). 394 UNDRIP, supra note 332, art. 37 (cf Art. 46(1): “Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.“)
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Unlike the push to get treaty reciprocity acknowledged, the courts have usually been asked to
consider only Indigenous peoples’ treaty rights.395 In this context, there have been some positive
developments following the constitutional protection of existing treaty rights.
In contrast to earlier decisions deriding treaties in the late 1800’s and early 1900’s, the Supreme
Court of Canada more recently held that a “treaty represents an exchange of solemn promises
between the Crown and the various Indian nations […] an agreement whose nature is sacred.”396
The Court also noted that treaties “… are a solemn exchange of promises made by the Crown
and various First Nations”.397 Other beneficial principles of treaty interpretation set out in the
Court’s 1996 Badger decision include: the implication of the ‘honour of the Crown’ and the need
to interpret treaties and statutes in a way that maintains the Crown’s integrity, the resolution of
textual ambiguities ‘in favour of the Indians’, the narrow construal of limitations on treaty rights,
and the strict proof by the Crown of the fact, and the clear and plain intent, of extinguishment of
aboriginal and treaty rights.398 However, this case law on the sui generis status of treaty rights
does not counter the doctrines of domestication discussed in Chapter Two399. In answer to the
question why the treaties have still not been given full effect, Craft notes that the “short answer is
that treaty interpretation has been largely dependent on federal policy and Canadian common law
courts [… that] have developed a set of interpretive rules, specific to treaty interpretation, that
are largely modelled on statutory canons of construction”.400 From a chronological progression
of relationships of trade and alliance to one-time territorial cessions yielding perpetual juridical
395 Indeed, the SBOFN’s attempt to exercise Indigenous adoption law tied to treaty rights for a non-Indigenous person was seen as going too far. 396 R. v. Badger, [1996] 1 SCR 771 at para. 41. 397 R. v. Sundown, [1999] 1 S.C.R. 393 at para. 24. 398 Badger, supra note 396 at para. 41. 399 See, e.g., Promislow, supra note 129 (on the slight impact of these developments and their limited scope in the grander scheme of political reconciliation, negotiated settlements, & ongoing treaty relations in years ahead). 400 Craft, supra note 127 at 14.
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domestication, it’s clear why treaties, and this dominant narrative, remain so contested to this
day. The persistence of these domesticating attitudes provides the greatest obstacle to the
revitalization of treaty relations. Without such revitalization, one of the attributes necessary for
vibrant Indigenous futures will remain missing (the capacity to enter international relations).
Another essential component is, of course, land.
Losing Land, Negotiating Reconciliation 16As with treaty relations, similar tensions have been playing out in relation to land claims,
Aboriginal title, and the push for political resolutions. The starting point and terminus for courts
here is that the Crown somehow gained sovereignty over, and beneficial ownership and radical
title to, all land in Canada. This “magical” act took place pursuant to the fictional assertion of
Crown sovereignty under the doctrine of discovery,401 and reception into Canadian law of the
doctrine of tenure during colonization.402 Notably, the courts have moved away from earlier
interpretations that Aboriginal title was merely a ‘personal and usufructuary right’ to the
understanding that the Royal Proclamation of 1763 recognized Aboriginal title but did not create
it.403 This language also emerges in the above-mentioned section 35, which recognizes and
affirms existing Aboriginal rights, including Aboriginal title and treaty rights. However, common
401 On the “magic”, see e.g. Justice Harry LaForme (online, Walrus talk <https://thewalrus.ca/tv-discovery-the-lawful-conquest-of-indigenous-people-through-magic/>. Generally, see Tracey Lindberg, “The Doctrine of Discovery in Canadian Law” in Robert J. Miller, Jacinta Ruru, Larissa Behrendt, and Tracey Lindberg, Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies (Oxford: Oxford University Press, 2010) at 89-170. See also, e.g., Felix Hoehn, “Back to the Future - Reconciliation and Indigenous Sovereignty after Tsilhqot’in” (2016) 67 UNBLJ 109-145 (generally and at paras. 76-77 (QL) on the necessity for adopting a ‘terra nullius’ approach under the doctrine of discovery for the elimination of Indigenous sovereignty, if not the potential for Indigenous property under Aboriginal title (contrary to the pronouncements by Chief Justice McLachlin in Tsilhqot’in). 402 See also the Constitution Act, 1867, 30 & 31 Vict, c 3, s. 109. 403 St. Catherine’s Milling and Lumber Co v The Queen (1888), 14 AC 46 (Ont PC).
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law Aboriginal title in Canada was only first recognized in theory in 1973,404 with the test
established in 1997405 before the eventual declaration of Aboriginal title for the first time in
2014.406 It remains a sui generis creation of the common law, subject to an inherent limit, largely
predicated on the English law of possession and occupation (as opposed to Indigenous laws), and
still a burden on the underlying radical title of the Crown.407 Equally important, it remains for
Indigenous nations to claim this right by showing sufficient and exclusive historic occupation
prior to the assertion of Crown sovereignty408. This occupation must have been continuous where
present occupation is relied on as proof of such pre-sovereignty occupation409.
The procedural and substantive hurdles for proof of such title are meant to be mitigated by the
Crown’s fiduciary duty to Indigenous peoples, the honour of the Crown, the duty to consult, and
the balancing process built into the test for the long laundry-list410 of justifiable infringements on
such title.411 Notably, the waiting time for litigation and negotiation has been many decades long,
404 Calder v. Attorney‑General of British Columbia, [1973] S.C.R. 313. See also: Guerin v. The Queen, [1984] 2 S.C.R. 335. 405Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010. And then, as argued by Kent McNeil, subsequently restricted in R. v. Marshall, R. v. Bernard, [2005] 2 S.C.R. 220. 406 Tsilhqot’in Nation v. British Columbia, [2014] 2 SCR 257. 407 The Court does note that the Crown does not retain a beneficial interest in Aboriginal title land (at para. 70), though two other elements supposedly remain with the Crown’s fiduciary duty to Aboriginal people and the Crown’s right to encroach on title lands in the broader public interest (para. 71). More generally, see The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference (2014) 71, Part II (Indigenous Peoples and the Constitution, including contributions by Andrée Boisselle, Brian Slattery, Kent McNeil, and John Borrows). See also Karen Drake, supra note 376; Brenna Bhandar, “Plasticity and Post-Colonial Recognition: Owning, Knowing and Being” (2011) 22(3) Law and Critique 227–49. 408 Following the Oregon boundary treaty between the U.S. and Canada, the date (subject to criticism, but not argument by the parties in court) was held to be 1846 in B.C. 409 See Tsilhqot’in, at paras. 24-50 (including reference to Delgamuukw at para. 143). This need not be an unbroken chain, but must still be rooted in pre-sovereignty times. 410 Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010 at para. 165. See also: Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (CanLII), [2014] SCJ No 44 (QL) at paras. 82-84. 411 Note the migration of the justifiable infringement test (from R. v. Sparrow, [1990] 1 S.C.R. 1075 at 1113-1114, 1118-1119 (accepting the conservation and management of resources as an important and valid legislative objective); to R. v. Gladstone, [1996] 2 S.C.R. 723 at paras. 75 (expanding from conservation to include “the pursuit of economic and regional fairness, and the recognition of the historical reliance upon, and participation in, the fishery of non-aboriginal groups”) to Delgamuukw at para. 165 (“… the wake of Gladstone, the range of legislative objectives that can justify the infringement of aboriginal title is fairly broad.) and, now, in Tsilhqot’in at para. 83
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with only one declaration of Aboriginal title ever made in Canadian history.412 The only other
option for claiming the Aboriginal right to title over land emerges outside the courts through the
right’s extinguishment or modification in the so-called ‘modern treaties’ under the
comprehensive land claims policy. As noted by Borrows: “On balance, however, Aboriginal
peoples are giving up much more in this process than they are gaining. At the same time, Canada
seems to be giving up much less with respect to its governmental structure and system of
landholding.”413 This statement holds true whether discussing treaties interpreted as cessions,
title defined more by provincial encroachment and justifiable infringement than its contents,
comprehensive land claims geared to extinguishment, or the proliferation of private impact
benefit agreements.414 For instance, with the historical Huron Tract Treaty, the Anishinaabe
ended up ceding over 2 million acres of land to retain less than 1% of their traditional territory.415
This remainder was spread across four reserves, including Stoney Point, which was later
expropriated and led to the Ipperwash crisis.416 The Nisga’a Nation’s traditional territory
(citing Delgamuukw at para. 165)). Following Kent McNeil, it is also worth noting that the Court re-articulated the Crown’s fiduciary duty in the justification process by infusing the obligation of proportionality in this process (para. 87) and subjecting the Crown to the notion of the ‘inherent limit’ (para. 86). If these developments hold true over time, they are still outweighed by the increasing space for provincial infringement left open by the Court’s removal of the doctrine of interjurisdictional immunity with respect to s. 35 rights in Tsilhqot’in (paras. 140-142, 144-152). See also: Kent McNeil, "Aboriginal Title and the Provinces after Tsilhqot’in Nation" (2015) 71 S.C.L.R. (2d) 67-89). This was also affirmed by the Court in the context of provinces taking up land and their justifiable infringement of treaty rights (see Grassy Narrows First Nation v. Ontario (Natural Resources), [2014] 2 SCR 447 at para. 53). 412 The long and grinding road towards a declaration of title, or the negotiation and settlement of a comprehensive land claim, is what (in part) led the courts to heighten procedural protections required of the provincial and Federal Crowns (and their delegates) through the notion of the ‘honour of the Crown’ and the duty to consult and accommodate where rights can be asserted even if not yet recognized by the Crown or courts (for the trilogy, see, e.g., Haida Nation v. British Columbia (Minister of Forests), [2004] 3 SCR 511; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 SCR 550; and, Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 SCR 388). 413 Borrows, supra note 127 at 634. 414 On this latter point see Tyler McCreary, New Relationships on the Northwest Frontier: Episodes In the Gitxsan and Witsuwit’en Encounter with Colonial Power (Ph.D. Dissertation, York University, 2013). 415 Ipperwash Inquiry, supra note 383, Vol. 1 at 27, 673. 416 Ibid.
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spanned roughly 26,000 square kilometres, but the Nisga’a Final Agreement (modern treaty)
reduced these to ownership of roughly 2,000 square kilometres (about 8%).417 And, finally, in the
Tsilhqot’in title decision, the claim that was granted was about 5% of their traditional territory418.
Further backdrop to the “cunning”419 of state recognition is the task of reconciliation put upon
these pieces of litigation and negotiation. As noted by the Court in many cases, the aim of this
project is the reconciliation of the prior presence of Aboriginal peoples in Canada with the
sovereignty of the Crown.420 The work of reconciliation is meant to take place on two levels.
First, there is the legal level aimed at defining the expansive scope for the justifiable
infringement of section 35 Aboriginal rights. Second, there is the wider political plane of Crown-
Indigenous negotiations towards mutually acceptable agreements. As noted by Brian Slattery,
this task of reconciliation is necessarily subject to the rhetoric and reality of balancing interests:
[T]he successful recognition of aboriginal claims must involve the full and unstinting recognition of the historical reality of aboriginal title, the true scope and effects of indigenous dispossession, and the continuing links between an Indigenous people and its traditional lands. So, for example, to maintain that “nomadic” or “semi-nomadic” peoples had historical aboriginal title to only a fraction of their ancestral hunting territories, or to hold that aboriginal title could be extinguished simply by Crown grant, is to rub salt into open wounds. However, by the same token, the recognition of historical title, while a necessary precondition for modern reconciliation, is not in itself a sufficient basis for reconciliation, which must take into account a range of other factors.
417 See Nisga’a Lisims Government, online: < http://www.nisgaalisims.ca/our-land> (around 16,000 sq. km. were retained for hnting and around 25 sq. km. for fishing). 418 Tsihqot’in at para. 6. 419 See e.g. Elizabeth A. Povinelli, The cunning of recognition: Indigenous alterities and the making of Australian multiculturalism (Durham: Duke University Press, 2002), cited in Audra Simpson, Mohawk Interruptus: Political Life Across the Borders of Settler States (Durham: Duke University Press, 2014) at 20 (referencing Povinelli, among others, in support of the proposition that “inclusion, or [the] juridical form of recognition, is only performed, however, if the problem of cultural difference and alterity does not pose too appalling a challenge to norms of the settler society, norms that are revealed largely through law in the form of decisions over the sturdiness, vitality, and purity of the cultural alterity before it”). 420 For a tracing of the trajectory of these notions of reconciliation (and different articulations by Justices Lamer and McLachlin over time), see Kent McNeil, Reconciliation and the Supreme Court of Canada (2003) 2(1) Indigenous L.J. 1-26 at paras. 2, 5, 10, 18, 23, 24 (QL) (between, initially, the “impact of constitutional recognition and affirmation of Aboriginal and treaty rights on Parliament’s legislative authority” to later articulations along the lines of reconciling the fact of prior Aboriginal presence and occupation with the sovereignty (and, later, assertion of sovereignty) of the Crown (“to the disadvantage of the Aboriginal peoples” where achieving reconciliation would require the tilted balancing of Aboriginal rights with the interests of other Canadians including “past violations of Aboriginal rights by non-Aboriginal persons […] used to justify continuing infringements of those rights today”)).
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So, for example, to suggest that historical aboriginal title gives rise to modern rights that automatically trump third party and public interests constitutes an attempt to remedy one grave injustice by committing another.421
In the landmark trial decision of Tsilhqot’in, Justice Vickers quoted this same passage, in part to
signify his reluctance to issue a declaration of title without being able to address the balancing of
competing interests described by Slattery.422
Given the emphasis on negotiation,423 consent, and reconciliation directed towards dispute
resolution outside of the courts, what has been the legacy of negotiation and political
reconciliation? The most salient criticism stems from the abject failure by successive federal and
provincial governments to address this issue at constitutional and political levels. This failure
ranges from the failed Constitutional Conferences mandated in section 37 of the Constitution
Act, 1982, to the former and interim Comprehensive Land Claims policy (including the British
Columbia Treaty Commission process) that requires Indigenous nations to cede, extinguish, and
(later) agree to modification and ‘non-assertion’ of their Aboriginal title and rights.424 Overall,
the constitutional and political context has been geared towards certainty for the Crown and
settlers to the disadvantage of Indigenous peoples and nations.
421 Brian Slattery, “The Metamorphosis of Aboriginal Title” (2006) 85 Can Bar Rev 255 at 282 (emphasis in original; also quoted in trial decision by Justice Vickers in William v British Columbia, 2007 BCSC 1700 at para. 1367). 422 See Kent McNeil, “Reconciliation and Third-Party Interests: Tsilhqot’in Nation v British Columbia” (2010) 8:1 Indigenous L.J. 7-25 at paras. 4-12 (QL). 423 See also Constance MacIntosh, “Tsilhqot’in Nation v BC: Reconfiguring Aboriginal Title in the Name of Reconciliation” (2014) 47 UBC L.R. 167-210 (QL) (published prior to the SCC’s decision). 424 For incisive critique, see the commentary by the late Arthur Manuel in “Canada Responds to Tsilhqot’in” (Aug-Oct 2014) 12 (8-10) First Nations Strategic Bulletin; and in “Tsilhqot’in and Self-Determination” (Jan-Jul 2014) 12 (1-7) First Nations Strategic Bulletin. These maneuvers mirror the long practice of the state and the Crown in responding to Indigenous petitions and political claims, see, e.g., Bhatia 2012a, supra note 152. See also: INAC, Comprehensive Claims (online: https://www.aadnc-aandc.gc.ca/eng/1100100030577/1100100030578); Renewing the Federal Comprehensive Land Claims Policy (online: https://www.aadnc-aandc.gc.ca/eng/1405693409911/1405693617207); and, on the changing and competing views of certainty and extinguishment, section 5 of Douglas R. Eyford, A New Direction: Advancing Aboriginal and Treaty Rights (April 2015) (online: https://www.aadnc-aandc.gc.ca/eng/1426169199009/1426169236218#sec5_e).
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This settler certainty must contend with heightened expectations and demands for change from
Indigenous peoples and their allies. The release of the Final Report of the Truth and
Reconciliation Commission into Indian Residential Schools included 94 Calls to Action425 to
transform Canadian society. The report used a broad definition of reconciliation as “the ongoing
process of establishing and maintaining respectful relationships at all levels of Canadian
society”.426 The TRC calls for forwarding Indigenous self-determination as the path towards true
reconciliation427, including calling on the “federal, provincial, territorial and municipal
governments to fully adopt and implement the United Nations Declaration on the Rights of
Indigenous Peoples [UNDRIP] as the framework for reconciliation.”428 However, Canada made
a late endorsement of the UNDRIP and did so under section 35’s much-criticized framework of
justifiable infringement429. The Court’s articulations of reconciliation are thus shaping and
restricting the wider societal and political project of reconciliation. State-directed reconciliation
seems to be directing Indigenous peoples to accept the Crown’s present hegemony and their
continuing disadvantage. There is also the potential for settler society to view reconciliation as
something directed at the historical oppression of Indigenous peoples to the neglect of
continuing, contemporary effects.430
425 See TRC Executive Summary, supra note 229 at 319 & following (Calls to Action). For an argument that Canadian courts should reject the doctrine of discovery, see: Felix Hoehn, “Back to the Future - Reconciliation and Indigenous Sovereignty after Tsilhqot’in” (2016) 67 UNBLJ 109-145. 426 See TRC Final Report, supra note 235 at Vol. 6, 27. See also: Jeffery G. Hewitt, “Reconsidering Reconciliation: The Long Game” (2014) 67 S.C.L.R. (2d) 259 - 287. 427 See, e.g., Brenda L. Gunn, “Moving Beyond Rhetoric: Working Toward Reconciliation through Self-Determination” (2015) 38 Dalhousie L.J. 238. 428 See TRC Executive Summary, supra note 229 at 325 (Call to Action #43). 429 See, e.g, Hewitt 2017, supra note 116. 430 See critical discussion in Victoria Freeman, “In Defence of Reconciliation” (2014) 27(1) CJLJ 213-223at paras. 9-10, 18-22, 33 (QL).
122
We Are All Here to Stay? 17Given the architecture of Aboriginal rights, treaty rights, and Aboriginal title, and their justifiable
infringement in Canadian law and policy, it is also worth asking what purpose is served by
recognition and reconciliation in Canada. Chief Justice Lamer’s concluding call in Delgammukw
for good faith negotiations and reconciliation of “the pre-existence of aboriginal societies with
the sovereignty of the Crown” ended with this acknowledgment: “Let us face it, we are all here
to stay.”431 As discussed above and in the previous chapters, the question of who gets to stay is a
lasting one.
The so-called modern treaties, or comprehensive land claims agreements, present a significant
barrier to fulsome articulations of Indigenous sovereignty or decolonization.432 These modern
treaties are further complicated by the Federal Government’s Policy on the Inherent Right of
Self-Government433. The ‘scope of negotiations’ clauses of this policy illuminate the general
barriers to the counter-domestication of treaties generally as well as on the specific issue of
immigration germane to this dissertation. They are worth quoting at length here:
Scope of Negotiations
Broadly stated, the Government views the scope of Aboriginal jurisdiction or authority as likely extending to matters that are internal to the group, integral to its distinct Aboriginal culture, and essential to its operation as a government or institution. Under this approach, the range of matters that the federal government would see as subjects for negotiation could include all, some, or parts of the following:
establishment of governing structures, internal constitutions, elections, leadership selection processes
membership marriage adoption and child welfare […]
431 See Lamer C.J. in Delgamuukw at para. 186. 432 In the context of the SCC’s Sparrow decision and aboriginal rights under s. 35(1) of the Constitution Act, 1982, and in response to Asch & Macklem’s (“Aboriginal Rights and Canadian Sovereignty: An Essay on R. v. Sparrow” (1991) 29 Alta L.Rev. 298) proposals for inherent (versus contingent) rights theories of Aboriginal rights, including Aboriginal sovereignty, see Thomas Isaac, “Discarding the Rose-Coloured Glasses: A Commentary on Asch and Macklem” (1992) 30(2) Alta L.Rev. 708 at 709, 712. Of course, the Government of Canada did later recognize the ‘inherent right’ of self-government as a section 35 right within the framework of the Canadian Constitution, but neither including a right of sovereignty in the international law sense nor resulting in sovereign independent Aboriginal nation states (Aboriginal Self-Government: The Government of Canada’s Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government (1995); for an updated version, see online: http://www.aadnc-aandc.gc.ca/eng/1100100031843/1100100031844). 433 See Aboriginal Self-Government 1995, above.
123
There are a number of subject matters where there are no compelling reasons for Aboriginal governments or institutions to exercise law-making authority. These subject matters cannot be characterized as either integral to Aboriginal cultures, or internal to Aboriginal groups. They can be grouped under two headings: (i) powers related to Canadian sovereignty, defence and external relations; and (ii) other national interest powers. In these areas, it is essential that the federal government retain its law-making authority. Subject matters in this category would include:
1. Powers Related to Canadian Sovereignty, Defence and External Relations international/diplomatic relations and foreign policy national defence and security security of national borders international treaty-making immigration, naturalization and aliens international trade, including tariffs and import/export controls […]
While law-making power in these areas will not be the subject of negotiations, the Government is prepared to consider administrative arrangements where it might be feasible and appropriate.434
Although touching on many important subject matters, the abbreviated lists above emphasize a
few areas especially relevant to my dissertation.
The government views those matters that are internal to the group, integral to the culture, and
essential to Aboriginal governmental operation as likely within the scope of Indigenous
jurisdiction or authority.435 The long list of subjects open to negotiation includes membership,
marriage, and adoption. Conversely, the government views other subject matters as having no
compelling reasons for the exercise of Indigenous law-making authority. The government states
that these subjects cannot be characterized as integral to Indigenous culture or internal to
Indigenous groups. These subjects are grouped into two categories: national interest powers or
powers related to Canadian sovereignty, defence, and external relations. Areas of essential
federal law-making authority that are not subject to Indigenous self-government negotiations
include: the security of national borders, international treaty-making, and immigration,
naturalization and aliens.
If we return to the Montevideo statehood markers discussed in Chapter Two, there is
considerable overlap here with respect to defined territory, the capacity to enter into international
relations, and having a permanent population. Canada retains these attributes for itself under the
434 See “The Government of Canada’s Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government” (online: http://www.aadnc-aandc.gc.ca/eng/1100100031843/1100100031844) (emphasis added). 435 Following RCAP, supra note 237 at Vol. 2, 159, 204.
124
self-government policy. As seen with the cases discussed in Chapter Three, the courts will be of
little help here and are still far from finding that Indigenous peoples have authority over
immigration matters or border mobility. This self-government policy also clearly labels
immigration as beyond the bounds of Indigenous authority. As discussed with the Nisga’a Final
Agreement in previous chapters, the modern treaties remain subject to Canadian constitutional
law, courts, and doctrine.436 This treaty also stipulates that its citizenship provisions do not
impact Canadian immigration law or Indian Act status. Paragraphs 39 and 40 of the Agreement
state:
39. Nisga’a Lisims Government may make laws in respect of Nisga’a citizenship. The conferring of Nisga’a citizenship does not:
a. confer or deny rights of entry into Canada, Canadian citizenship, the right to be registered as an Indian under the Indian Act, or any of the rights or benefits under the Indian Act; or
b. except as set out in this Agreement or in any federal or provincial law, impose any obligation on Canada or British Columbia to provide rights or benefits.
40. In the event of an inconsistency or conflict between a Nisga’a law under paragraph 39 and a federal or provincial law, the Nisga’a law prevails to the extent of the inconsistency or conflict.437
The Nisga’a Constitution stipulates the following about citizenship:
(1) Every Nisga’a participant who is a Canadian citizen or permanent resident of Canada is entitled to be a Nisga’a citizen.
(2) A person who is not a Nisga’a participant and who is a Canadian citizen or permanent resident of Canada may become a Nisga’a citizen if permitted by, and in accordance with, Nisga’a law.438
Enrolment within the Nisga’a Final Agreement is limited to those of Nisga’a ancestry
(matrilineal), an adopted child of someone with such ancestry, or “an aboriginal individual who
is married to someone” with such ancestry and “has been adopted by one of the four Nisga’a
tribes in accordance with Ayuukhl Nisga’a, that is, the individual has been accepted by the
Nisga’a tribe, as a member of that tribe, in the presence of witnesses from the other Nisga’a
tribes at a settlement or stone moving feast.”439 The Final Agreement sections on eligibility for
enrolment also repeat the Nisga’a Constitution provisions that enrolment does not impact
436 Borrows, supra note 127 at 636. 437 NFA, supra note 378, c. 11, s. 39-40. 438 Constitution of the Nisga’a Nation (1998), c. 1, s. 8. 439 NFA, supra note 378, c. 20, s. 1.
125
Canadian immigration, citizenship, or Indian Act status.440 The foregoing provisions mean that
adopted children of any ancestry can become Nisga’a citizens if they have Canadian citizenship
or permanent resident status. They also mean that other Indigenous people with Canadian
citizenship or permanent resident status can become Nisga’a citizens through the combination of
marriage and customary adoption under Nisga’a law.441
However, even if they marry a Nisga’a citizen and are adopted under Nisga’a law, non-
Indigenous people with Canadian citizenship or permanent resident status cannot become
Nisga’a citizens. Similarly, Indigenous people from far or near (such as Alaska) who marry
Nisga’a citizens and have been adopted under Nisga’a law cannot become citizens themselves
due to their lack of Canadian citizenship or permanent resident status. Presumably these
provisions were put in place to restrict those who might potentially ‘marry in’ to the Nisga’a
Nation to only Indigenous peoples born in Canada or having successfully immigrated or
naturalized here.442 For instance, if a Nisga’a citizen were to marry a member of the Sinixt
Nation from the American side, then that Sinixt spouse would need to be customarily adopted by
a Nisga’a tribe at a witnessed feast. Then, the Sinixt spouse would need to be sponsored under
Canadian immigration law by their Nisga’a spouse in the latter’s capacity as a registered Indian
or Canadian citizen. In its subordination to Canadian sovereignty (citizenship & immigration
law), customary spousal adoption into a modern treaty First Nation resembles customary band
member adoption into a numbered treaty First Nation. In summary, Indigenous peoples cannot
yet exercise their full self-determination to integrate newcomers under the Indian Act, the
Immigration and Refugee Protection Act, the common law, the historical treaties, or the last
bastion of reconciliation, the modern treaties443. Despite the TRC’s final two calls to action to
revise the Canadian citizenship test, study guide, and oath of allegiance to highlight treaties,
conventional Canadian sovereignty still clearly reigns with impunity when it comes to matters of
immigration.444
440 NFA, ch. 20, s. 2. 441 Note that “Aboriginal individual” is not defined in the NFA (generally or in relation to the marriage provision discussed here) or the Nisga’a Citizenship Act (2008). 442 See also Nisga’a Citizenship Act (2008), s. 3(d) (“ordinarily resident on Nisga’a Lands”). 443 Playing off of Catherine Dauvergne’s ‘the last bastion of sovereignty’ (see Making People Illegal: What Globalization Means for Migration and Law (New York: Cambridge University Press, 2008) at 2.
444 See TRC Executive Summary, supra note 229 at 337 (Calls to Action #93-94).
126
Conclusion 18
The Indigenous legal systems for making relations through treaties and adoption discussed in
Chapter One show the history and possible revitalization of Indigenous authority over the
integration of newcomers. As opposed to being left to the government’s interests, Indigenous
authority over the integration of newcomers could also further Indigenous legal relations and
citizenship with the land. When not viewed through the lens of domestication detailed in Chapter
Two, Indigenous treaty relations with imperial powers and the Canadian state also show the
currency and ubiquity of Indigenous authority over settlement and immigration. Ultimately, if
what Canada and Canadians have is a treaty right to be here, then Indigenous peoples are the
ones who have granted them permission to stay. It does not make sense for Canada to then tell
Indigenous peoples that they can no longer grant such permission to anyone else. History has
also shown the danger of leaving immigration matters solely to the state. As seen in Chapters
Two and Three, the state can take away a First Nation’s lands, government, and children. It can
then also take away that First Nation’s authority to decide to include someone on a permanent
basis. For the sake of respecting Indigenous self-determination and renewing treaty relations, I
think it is well past time for assimilation into Indigenous laws. In addition to the many calls to
action mentioned above, another good place to start would be with those not yet authorized to
enter and remain in Canada.
127
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F.L. Seidle, Canada’s Provincial Nominee Immigration Programs: Securing Greater Policy Alignment (Montreal: Institute for Research on Public Policy, 2013);
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Table Discussions, 1992-1993. Presentation by Chief Randy Kapashesit (June 9, 1992) in University of Saskatchewan Archives, Native Law Centre fonds, RCAP Vol. 30 (Box 4), part of Volume 2A (Moosonee) 368-380, online: University of Saskatchewan Archives <http://scaa.sk.ca/ourlegacy/permalink/29378>.
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<http://www.collectionscanada.gc.ca/webarchives/20071207032318/http ://www.ainc-inac.gc.ca/ch/rcap/sg/sg25_e.html#89>).
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“Numbered Treaties” in Canadian Encyclopedia, online <http://www.thecanadianencyclopedia.ca/en/article/numbered-treaties/>
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x/11-630-x2016006-eng.htm>.
Ontario, Report of the Ipperwash Inquiry: Policy Analysis, Vol. 2 (Toronto: Ministry of the Attorney General, 2007) at 45-46 (I have interspersed the images of the wampum belts here, which are not included in the original text from the Inquiry report). See also: Ontario, Report of the Ipperwash Inquiry: Investigation and Findings, Vol. 1 (Toronto: Ministry of the Attorney General, 2007), online: Ipperwash Inquiry <https://www.attorneygeneral.jus.gov.on.ca/inquiries/ipperwash/report/index.html>
“The Government of Canada’s Approach to Implementation of the Inherent Right and the
Negotiation of Aboriginal Self-Government” (online: http://www.aadnc-aandc.gc.ca/eng/1100100031843/1100100031844)
Aboriginal Self-Government: The Government of Canada’s Approach to Implementation of the
Inherent Right and the Negotiation of Aboriginal Self-Government (1995); for an updated version, see online: http://www.aadnc-aandc.gc.ca/eng/1100100031843/1100100031844).
The High Arctic Relocation: A Report On The 1953-55 Relocation (Ottawa: RCAP, 1994)
INAC, Comprehensive Claims (online: https://www.aadnc-aandc.gc.ca/eng/1100100030577/1100100030578)
Renewing the Federal Comprehensive Land Claims Policy (online: https://www.aadnc-
aandc.gc.ca/eng/1405693409911/1405693617207)
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Douglas R. Eyford, A New Direction: Advancing Aboriginal and Treaty Rights (April 2015)
(online: https://www.aadnc-aandc.gc.ca/eng/1426169199009/1426169236218#sec5_e)
TRC Reports
Truth and Reconciliation Canada, Honouring the truth, reconciling for the future: Summary of the final report of the Truth and Reconciliation Commission of Canada (Winnipeg: Truth and Reconciliation Commission of Canada, 2015), online: TRC <http://www.trc.ca/websites/trcinstitution/File/2015/Honouring_the_Truth_Reconciling_for_the_Future_July_23_2015.pdf> [n229]
Truth and Reconciliation Canada, Canada’s Residential Schools: The History, Part 1 (Origins to 1939), Vol. 1 (Montreal & Kingston: MQUP, 2015) online: NCTR <http://nctr.ca/assets/reports/Final%20Reports/Volume_1_History_Part_1_English_Web.pdf> [n235]
Other Documents, Reports, News Articles, & Press Releases
Statement by Sharon McIvor (June 22, 2016) (online: http://fafia-afai.org/wp-
content/uploads/2016/06/2016Statement-of-Sharon-McIvor-Engfinal.pdf)
NWAC FAFIA Press release in support of Sharon McIvor (June 23, 2016) (online: http://fafia-afai.org/wp-content/uploads/2016/06/2016McivorNWACFAFIAPRESSRELEASEengfinal.pdf)
“Ganges and Yamuna rivers granted same legal rights as human beings” (Indian court cites the Whanganui river in New Zealand as example), online: The Guardian <https://www.theguardian.com/world/2017/mar/21/ganges-and-yamuna-rivers-granted-same-legal-rights-as-human-beings>
“Lake Huron site is best suited for nuclear wast bunker: OPG report”, online: The Toronto Star
<https://www.thestar.com/news/canada/2017/05/30/lake-huron-site-is-best-suited-for-nuclear-waste-bunker-opg-report.html>.
Sid Hill, “My Six Nation Haudenosaunee passport is not a ‘fantasy document’” The Guardian
(Oct. 30, 2015), online: < https://www.theguardian.com/commentisfree/2015/oct/30/my-six-nation-haudenosaunee-passport-not-fantasy-document-indigenous-nations>.
154
Kim Guttormson, “Pay was 47 cents an hour: nanny Thompson doctors refute nun's claims” Winnipeg Free Press (Aug. 19, 2002), online <Factiva>
Debra Black, “New rules for federal live-in caregiver program” The Toronto Star (Nov. 28, 2014), online <https://www.thestar.com/news/canada/2014/11/28/new_rules_for_federal_livein_caregivers_program.html>.
“Nanny’s claim disputed” Winnipeg Free Press (20 Sept. 2002) In Brief, online <Factiva>
Film
Martha Stiegman, Honour Your Word (Montreal: Productions Multi-Monde, 2013.
