The
future of Aboriginal Self-Governance:
What to do with the Indian Act?
November 6, 2012
What I initially meant to be a sober and frank discussion of the future of the Indian Act has turned into a more subtle and complex project than was initially expected. First, it has required some research into the history of and motives behind the Indian Act, which has uncovered some surprising results. Second, it has necessarily intertwined heavily with the question of Indigenous self-governance, and what its nature shall be.
It is perhaps more useful to pinpoint what will not be discussed in this paper. For sovereignty to be meaningful in the context of First Nations people, its nature must be determined outside of the framework of the Indian Act, which must only act as a formal means of delegating power within the hierarchy of Canadian Federalism. How that power is constructed, deployed and shared is a matter of sovereignty; it can only be determined at a local level by the nation itself, in consultation with the various federal and provincial powers. As each nation has its own traditions and concepts of what government and law are and how they should function, any kind of distributed structure would be inconsistent with the concept of self-governance itself. I will consequently not take any position or provide any suggestions as to how the various nations should organize themselves, other than to work under the assumption that each nation will determine its own desired method of communication with the federal government. Similarly, any laws or legal systems pushed down from above would simply not be consistent with self-governance and will not be discussed here in any manner; it is assumed that nations will fully organize themselves in whatever manner that they see fit. The sole exception to this rule would be in international law, where sovereign local governments would have a responsibility to work with the federal government to ensure that treaty obligations are met. This concern also extends to the Eurocentric concept of "aboriginal rights", which in truth seems to be little more than a linguistic gloss over of barely modified paternalistic and sometimes downright racist attitudes, often within the context of accelerated assimilation. Self-governance implies much more than being granted "rights of self-determination" over issues of extremely local jurisdiction while the same colonial powers continue to regulate nearly all aspects of existence.
I began the exploration of this topic with a vague understanding of the Indian Act as an outdated, paternalistic piece of legislation that should be largely abolished and have ended it with a firm belief that it rather should (1) be modified to decentralize power out of the hands of Ottawa and into the hands of local nations and (2) be converted into a model for bilateral treaties between individual nations and the different branches of government, and then enshrined in a separate constitutional framework. A separate constitution for first nations that upholds the rights of self-determination would make it virtually impossible for the federal government to continue enacting arbitrary or oppressive legislation, solving the problematic issue of a meddling and paternalistic centralized government once and for all. As this is being written, the federal government is once again modifying the Indian Act without consulting First Nations. This must stop. It is only once both constitutions are placed on an equal level that the original promise of "travelling down the same river together"[1] can be spoken of once again.
The Purpose of the Indian Act
Before we can understand what to do with the Indian Act, we need to understand what it is, why it was written and what its goals were. What we shall see is that all of these things have shifted over the years along with the views of the dominant European-descended majority, but that the government has maintained a roughly consistent desire to annihilate Aboriginal societies; what has changed have largely been the methods to accomplish this and views regarding the utility of assimilated Aboriginal peoples.
The early Spanish explorers in the
western hemisphere, whom were subjects of the powerful Hapsburg Family, which
in the period in question always included the papal-crowned Holy Roman Emperor,
were actually obligated by law to acknowledge a Papal edict called the Romanus Pontifex that demanded that
"all Saracens and pagans whatsoever, and other enemies of Christ
wheresoever" be reduced to "perpetual slavery".[2]
While this later became the basis for the "Doctrine of Discovery",
which is still the legal justification underlying the relevant American case
law that allows for forced resettlement[3],
it was not a significant factor in the European colonization of
The indigenous population had not yet been corrupted by the notion of private property, which allowed both the French and then the British to set up trading colonies with minimal (although not zero) conflict.[4] Nor was there any interest on behalf of either colonial power to ensure more than the safety of their trade routes.[5] Their primary concern in this matter was not even the indigenous population, but each other; as is well known, the French and English were at war with each other almost continually from 1066 until 1815. France's surrender to the British in Montreal in the year 1760 did not bring an end to French colonial interest in North America (that would have to wait until the end of the American Civil War, when a faster than expected Union victory forced the abandonment of an opportunistic plan to re-establish control of the continent west of the Mississippi by invading and militarizing Mexico), but it did bring an end to anything resembling the serious enforcement of French interests. More importantly, the peace treaty of 1763 resulted in an unchallenged British hegemony on the east coast of the continent. The royal proclamation of 1763 followed, primarily as a statement of that newfound hegemony.
What the Crown's real motives were
in restricting land sales to settlers will remain an open question to history,
but a few things about the proclamation are certain. First, it was more than
the formal transfer of captured French settlements and citizens to British rule
but also a declaration of ownership of all land previously claimed by the
French not as their own for personal use but as within an exclusive trade zone.[6]
While the French may have stationed troops on the borders of their economic
zone, and the result may have been protective for many indigenous peoples, what
they were concerned about was keeping British settlers out of their trading
zone, rather than owning the land. The kind of unilateral declaration of land
ownership seen in the proclamation had not been previously encountered in
There is a second reason that the British adopted a policy of slow advancement after 1763 rather than one of conquest. It seems to be clear that, at least in the immediate aftermath of the Seven Years War, the British considered the tribes aligned with France to have been conquered along with the French communities themselves. This is a complex, subtle and difficult subject. On the one hand, the general view on the matter in the scholarly literature and in legal tradition (very strangely notwithstanding the relevant documents closest to 1763, which would be the most relevant) is that none of these First Nations were ever conquered. Yet, the policies and rulings produced by the crown and the court, along with the ability to use coercive violence as an effective means of enforcement, sure seem to suggest that this is the case. The answer to this apparent contradiction lies in the application of typical British pragmatism to a bit of a legal quandary. Until 1890, it was very firmly established Imperial precedent, from centuries old case law stretching back to the medieval British colonies in Ireland (that case law itself based on Roman approaches to military occupation) and upheld repeatedly since that time, that a nation that conquers another nation by force has a responsibility to uphold the laws of that nation, unless they are "Unchristian", until such a time has come that the conquered nation has adopted the norms of the conquering nation, at which point the laws of the dominant party may be enforced. On the other hand, it was also very established Imperial precedent that settlers moving on to unoccupied land remained subjects of the Crown and consequently remained bound by Imperial law, until such a time comes that an independent legislature is erected.[13] Therefore, if the British Crown wished to uphold its apparently clear view that the French-Aligned First Nations had been conquered, it would be required to uphold their laws - which included ideas like communal ownership of land, which at least one prominent British landholder of the period once referred to as "wicked",[14] in clear fear of its consequences for his own fortune.
What the Crown wanted to do, in
contradiction to its own Imperial laws, was treat
The intent of this deconstruction is not to deny any beneficial consequences or legal protections that the proclamation has eventually resulted in for indigenous North Americans so much as it is to provide the necessary context in understanding the Indian Act, and perhaps to point out that the proclamation was neither properly understood by the angry British settlers that ignored it, nor by the Supreme Court of Canada in it's late twentieth century rulings, although there is a possibility that, in the latter case, this misunderstanding may have been intentional.
It did not take long for this policy of slow, careful British expansion by the peaceful transfer of land through the construction of treaties to transform itself due to shifting realities on the ground; it took around ten years for the Crown to transfer it's ownership of the Indian territory back to the province of Quebec and less than fifteen years for the thirteen colonies to revolt, which resulted in a mass of migration both to the north and the west. This is of course where American history separates from Canadian history, and where the discussion will consequently leave relations between Americans and Native Americans behind, other than to say that the Americans favoured a more aggressive and violent approach to expansion than the British did.
In
Despite the influx of immigration,
the government found it difficult to find immigrants willing to settle in the
distant
We can now speak of the purpose of
the Indian Act of 1876: it was to convert the indigenous peoples of
This policy of conversion to
agriculture was partially instigated by an inability to attract white settlers.
However, the indigenous population did not have a desire to convert to farming,
leaving the Crown in a losing situation. This problem was eventually solved by
specifically appealing to Scandinavian immigrants, who would be less adverse to
the climate. As immigrants started pouring in at the turn of the century and
concerns about the border largely dissipated, the desire for aboriginal farming
communities lost its impetus. Attitudes towards aboriginal people also
hardened; it became understood that if the natives would not choose to enter
white society on their own then they would unfortunately have to be forced into
it for their own good, or worse. Resentment also grew over the cost of
supporting native communities who refused to enter white society. At first, the
response of the government was to make the assimilation methods more violent,
like an abusive parent harming an unruly child, but this (unsurprisingly) did
not lead to the desired results. Feeling as though they had tried everything to
force the Indian to conform, the government then largely convinced itself that
the natives would not conform because they could not and that they never would.
Land treaties were ignored and hunting and fishing rights, both commercial and
subsistence, were denied to maximize tax revenue, with no interest in the
severity of the consequences. The rise of eugenics in
Postwar Developments
A further shift in policy occurred
after world war two. This shift was global, rather than local. It coincided
with global European decolonization, as well as the abolition of racism as an
acceptable form of thought in polite society. It also coincided with a rise in
democratic socialism. These things culminated in movements for autonomy all
over the world. In
A new Indian Act was passed in 1951 that had two substantial changes in it. The first is the inclusion of s. 88, which brings all Indians under the jurisdiction of general provincial and federal legislation. The second was forced enfranchisement for women that married enfranchised men; after years of legal battles, this was modified (and arguably worsened) in 1985 by bill c-31, which both restored status to many people who had been denied it and constructed a two-generation blood quantum rule that some observers have argued will lead to total assimilation within only a few generations. In reality, this is unlikely: more likely is that it will lead to social conflict within a few generations. The legislation is simply another piece in a long line of racist, assimilative policies that assume perceived inferiority - if Indians are forced or encouraged to better themselves, they will no longer wish to be Indians anymore. In fact, recent genetic studies have backed up a number of folk tales that described Europeans escaping the regimentation and fundamentalism of the colonies to live in freedom with aboriginal peoples; the reality is that most tribes in the Eastern half of the continent are majority European-descended in their male lineages[19] (also see attached figures), which suggests that these folk tales must have actually been describing a very substantial movement of people from the colonies to the tribes. There are also legitimate historical records of widespread intermarriage before the Royal Proclamation. So, the idea that marrying out will slowly annihilate aboriginal culture seems to be fantastical; inter-marriage has been occurring for centuries and it has yet to destroy aboriginal identity. Not only will aboriginal peoples continue to desire living their traditional lifestyles, but their traditional lifestyles will continue to attract non-aboriginal people through marriage and other bonds. Aboriginal identity is truly cultural, not genetic. The government has merely set itself up for a confrontation.
When Pierre Trudeau gained power in
1968, he took a characteristically blunt approach to the issue. Rather than
continue with all of the same kind of corruptions in the spirit of the law and
sneaky social engineering experiments, he had Jean Chretien table a white paper
that outlined the government's centuries old end goal without any hubris. The
white paper suggested many things; a few of them were to repeal the Indian Act,
transfer land directly to council ownership, increase aid and establish
aboriginal citizens of Canada as equal under the law - for better or for worse.
It was the last of these suggestions that caused a large backlash in the
Aboriginal community. The plan was officially withdrawn, but as it was really
little more than a candid statement of deeply entrenched policy with a slightly
more liberal than normal spin, the government quickly went back to its sneaky
social engineering experiments once Trudeau was finally pushed out of office
fifteen years later by a concerned Ronald Reagan, due to differences in
philosophy regarding national defence strategies; Mulroney had already brought
in Bill C-31 before anybody could get through When Irish Eyes Are Smiling. Trudeau, however, left a very deep legacy on the question of
aboriginal self-government, by constructing the
After the failure of the Meech
A New Model
There was, however, an agreement reached at the turn of the century that could act as worthwhile model for indigenous sovereignty moving forwards, namely the Nisga'a agreement. While the agreement shares some fundamentals with both the Charlottetown Accord and the Royal Commission, it takes a very large step forward in the recognition of sovereignty in a way that is very sensitive to indigenous concerns.
The Nisga'a is a nation of four
tribes on the Nass River in
In 2004, the Supreme Court of Canada established a duty to consult aboriginals before enacting legislation that may affect them.[24] This ruling constructed a process to acknowledge the right to self-determination, based on s. 35. However, the Conservative government that took power in 2006 and won a majority in 2010, and which is ideologically opposed to "judicial activism", has completely ignored this ruling, setting up a potential battle between the two branches. In completing ignoring the ruling, the government may be relying on the ability to stack the Court with like-minded people in the near future. This could have deep consequences for the establishment of multiple precedents regarding s. 35 rights, including further development of the ruling in R v. Sparrow.
The Return of Liberalism
While it may seem as though the
Nisga'a agreement and duty to consult provide a positive, working model forward,
in reality the failure of the Charlottetown Accord, as insufficient as it was,
may have actually signalled the closing of a window for aboriginals that have
already signed treaties that may remain closed for some time. The current
government has no interest in consulting with aboriginals before it legislates
on their behalf. Furthermore, we appear to be in the process of yet another
shift in policy: turning back to assimilation along with the shift back to
full-scale liberalism; this would actually be necessary in order for government
to conform to the prevailing economic dogma. Wealth redistribution back to
exploited peoples is not remotely consistent with neo-liberalism, nor could the
current reserve system withstand the full onslaught of austerity and individual
property rights. While most ordinary Canadians remain perplexed at the lack of
quality schooling and healthcare available to First Nations people, they fail
to realize that the current economic paradigm of the ruling class demands the
elimination of all public services altogether, in favour of markets. While it
is always healthy to stay positive, it is equally healthy to remain realistic;
if current trends in economic thought continue as they have been, the future
for indigenous people in
FNPOA, together with other bills in process: Bill C-428 impacting
by-laws, estates & education, Bill S-6 re elections, Bill S-2
re matrimonial real property, Bill C-27 re First Nation accountability,
Bill S-8 re First Nation water, and the First Nation Education Act to
come essentially change the entire legal and political landscape for First
Nations - unilaterally and against our collective will.[25]
Bills S-6, S-8 and C-27 centralize control back in the minister's office, a clear step backwards for self-governance, while perpetuating negative stereotypes about aboriginals for consumption by the government's voting base; it is has been hypothesized that the motive is to create a justification to cut spending,[26] which is likely a vengeful reaction, that being characteristic of Stephen Harper, to alarming coverage about the living conditions of aboriginals last year, which has affected him negatively in opinion polls.[27] Bill S-2, while seemingly produced for the benefit of aboriginal women, has been interpreted by at least one independent female aboriginal commentator as a sneaky way to reform property laws.[28] Neither the First Nations Property Ownership Act (FNPOA) nor the First Nation Education Act have been tabled as of the time of this writing, but both are causing great alarm in the aboriginal community. The focus of the other legislation seems to be on centralization; when this is considered in the context of the residential school system, it is alarming that not consulting would even be contemplated. As for the FNPOA, there are concerns that it may look like the 1969 White Paper.[29] The government is also modifying the process of making changes to land designation in order to make it easier for corporations to gain access to reserve lands.[30]
The opposition Liberals have joined in, too, calling for a committee to discuss ways to abolish the Indian Act.[31]
Conclusions
As can be seen, then, neither the British nor Canadian governments ever held a static "Indian Policy" with a single, defined goal. Rather, policy has shifted wildly to whatever was seen as most economically beneficial to the British and Canadian ruling class, from assimilation as full citizens to extermination through sterilization. Within this operating principle of unrestricted pragmatism, native rights were never meaningful abstractions, but merely empty promises designed to minimize dissent, which is bothersome for tax revenue and can be very expensive to put down, as well as to trick the Indians into co-operating with plans for their own demise. This remains true today. It is clear, then, that if the goal is to ensure that aboriginal rights are legitimately protected, and that aboriginal peoples are to have the freedom to live as they desire, we need to get legislative power out of the hands of the federal government and into the hands of the nations themselves and that this needs to be regulated by a document that is enforced by the courts and that neither industrial nor class interests have any ability to arbitrarily modify. If the goal is also full sovereignty, then this constitution must be as minimal as possible, in favour of more detailed frameworks at local levels.
Suggestions
There is a tendency in the literature to approach the problem of aboriginal self-governance as a process of constructing a list of rights that aboriginals shall have. For example, Slattery[32] compiles an inexhaustive list of six "generic rights" that simultaneously includes the right to honourable treatment by the Crown and the right to self-government itself. Now, who grants these rights? What of rights that are not listed? Will the Crown continue to act oppressively in areas where rights aren't explicitly listed? In truth, this is but another paternal approach, intentional or not, and should be immediately abandoned. Sovereignty is not, and cannot be obtained through, a process of being granted rights by one's sovereign; she who is granted rights by a sovereign is necessarily not sovereign. As painful as it may be to admit this is an unworkable dead end, all work on this topic should be buried or burned and forgotten - this can be nothing more than a plan for further disaster.
However, any kind of aboriginal self-governance is going to culminate in the construction of something approaching a state, no matter how decentralized and participatory that state is. This necessarily requires the construction of a constitution and a bill of rights. Is the Canadian Charter of Rights and Freedoms sufficient? Many academic texts, especially those written by non-aboriginal people, seem to consider the question a non-issue; obviously, any aboriginal government would be bound by the charter. That it would not be is simply inconceivable. However, this is not widely assumed on the ground, outside of ivory towers, where there is actually a wide divergence of opinion.[33] The Charter remains the white man's law, after all, and may plausibly do a poor job in upholding the rights of Aboriginal as the Aboriginals themselves see those rights. Our courts have a mixed record on upholding aboriginal rights, anyways; there is valid reason for distrust in such a document, even if its contents could be normalized. That brings up another difficult question: what aspects of Aboriginal society itself require checks and balances to prevent Aboriginals from oppressing Aboriginals, or Aboriginals from oppressing non-Aboriginals? Who figures this out? Will Aboriginals consent, or feel these are simply further paternalistic restrictions?
There are at least some Aboriginal
voices that are adamant about Charter protection.[34]
There are others that reject it as insensitive to aboriginal concerns and still
others that reject it on principle alone.[35]
For the purposes of my proposals, however, the question is actually rather
irrelevant. I would propose that an aboriginal constitution exist side-by-side
with ours, which would be outside of the Charter's jurisdiction. A better question to ask is "what should
an aboriginal charter look like?", and to answer that I think we need to
consult with aboriginal groups, but for the purposes of this report we can use
the shortcut of looking at existing aboriginal rights legislation, as produced
by aboriginals. In truth, there are minor differences between the Inuit act and
the Charter;[36]
one is clearly based on the other. Issues of bitterness and
sovereignty aside, the Canadian Charter of Rights and Freedoms remains
one of the most detailed and comprehensive charters in the world. The
indigenous populations of
I would suggest that a body similar to the Assembly of First Nations, if not the assembly itself, form at a higher level of government, for the purposes of administration. As they'll be writing their own constitution, they can figure the rest out themselves. They may or may not want to implement a universal charter, some kind of equalization program, taxation, rules of entrance, co-ordinated resource protection strategies, universities, health care, a parliament or even simple statements of values. They may, on the other hand, just want a minarchist framework. Yet, I strongly recommend that a framework exists, as it is likely the only plausible way to build a workable infrastructure in a globalized economy.
That leaves us with two separate confederations
- the Assembly of First Nations and the Confederation of Canada. The next step
would be in forming a larger agreement that binds together these two
confederations, a recognition of the two row wampum
treaty converted into modern legalese. This agreement would lay out rules that
each of the two confederations must follow in order for them to live in harmony
on the same land. It should not yield any political or legislative authority,
but it should be binding on its two (or three, if
In the mean time the Metis would exist in a gray area. If the First Nations wish
to reject them from their confederation, I feel they have every right to do so.
Yet, they ought to remain Canadian citizens, and protected under s. 25 and s.
35 of the charter. I would consequently not recommend removing these sections
of the charter, as they would still apply to Metis,
as well as to non-status Indians and status Indians operating in Canadian
jurisdiction. However, if First Nations
continue to reject the Metis, and they feel Canadian
Citizenship is not enough, then serious discussion should be had about bringing
them in on the level of a confederation, organized along similar principles.
Anybody could choose to hold multiple citizenships (I have European,
I would further propose that it is not necessary for any single aboriginal nation or tribe to join confederation at all, if they choose not to. In fact, I think there should be clear standards put in place that act as a restriction upon membership. One rule I would propose as fundamental is that a nation wishing to join confederation needs to have already constructed a bill of rights, and that there needs to be a few things within it - equality rights, most importantly, but the elimination of blood quantum rules nearly so. Nor would joining confederation merely be a formality; access to certain programs would be conditional upon admittance, as those programs would exist in the framework of the Assembly. That would not rule out the possibility of coming to agreements about programs through bilateral agreements. Confederation should retain the right to suspend membership and place trade sanctions on any nation that does not uphold the common principles that had been agreed upon. These restrictions and sanctions would not be meant to act as a barrier to entrance, so much as they would be meant to ensure that certain rights that confederation considers to be paramount are respected by all of its members.
If these suggestions are adopted
then the formal hierarchical control of
Transfer of property from the crown to First Nations should occur bilaterally, but should in general follow the provisions of the Nisga'a agreement, which place the ownership of the land in the hands of every member of the community, do not allow radical title to leave the ownership of the community and allow for shared, external hunting grounds wherever this remains possible.[37] Once the transfer is complete, each nation will retain absolute sovereignty over what it wishes to do with its land. It may or may not sell plots in fee simple and may or may not decide to allow "sale" to outsiders, but this sale of land would conform to the rules of the Nisga'a agreement, meaning the land would ultimately stay within the control of the community. Should any nation refuse to take ownership of their own land, and have no alternate solution that is not the status quo, the Crown would reserve the right to unilaterally exit any existing treaty and sell the reserve land at its own pleasure, so long as it gives other First Nations a first opportunity to purchase and puts in place the proper provisions to relocate the citizens to social housing in a metropolitan area. This, again, is not a threat that the Crown should have any intention of following through with, but a statement that it is no longer interested in administering aboriginal lands for them and in fact a choice between taking on the responsibilities of sovereignty and forfeiting a separate identity; if a nation, once given the opportunity to do so, will not take control of its own affairs in order to define itself, its claim to being sovereign becomes dubious at best and the Crown is left with no option but to take drastic options to end the current hopeless and unsustainable arrangement.
The laws of
There simply isn't anywhere to place an authoritative minister of aboriginal affairs in this framework. However, both the federal and provincial governments should maintain departments that are in charge of aboriginal affairs, for the purposes of maintaining good relations through bilateral agreements.
Taxation should be a part of the bilateral treaty negotiations, as a contribution for services. Certainly, there would be no reason to pay taxes unless there were services rendered. Taxation arrangements between First Nations and the Assembly should be determined internally. As for the issue of voting rights, western concepts of government connect taxation very heavily with representation; traditional societies may not have had taxation (or currency), but they did generally uphold the idea of communal responsibility and reciprocal sharing. The logical conclusion of reciprocal sharing in a monetized economy is progressive taxation. Yet, it may not make sense in an aboriginal context to connect that to representation. Voting rights would rather need to be connected to situations where there is a direct concern involved, and that may not be easy to legislate or understand. Within this framework, in order for the decisions made by the Canadian parliament to directly affect an aboriginal person, that aboriginal person would have to have Canadian citizenship - perhaps they own property or work off of the reserve. Yet, if an outside government is to exploit a resource in the vicinity of a reserve, then, in the spirit of respect and friendship, there should be some discussion about the matter, eventually culminating in a bilateral agreement. This may involve a referendum, but it would be inside of the reserve. Voting rights for the Canadian parliament should consequently not be assumed for aboriginals, but granted on a citizenship basis. In practice, that would lead to most aboriginals having voting rights. Conversely, non-Aboriginals living on reserves should have some say in decisions that affect them, but this may take the form of consultation and petitioning rather than the form of a vote. As nations are sovereign, this is an internal decision. However, I would strongly suggest citizenship based voting rights as well, in co-ordination with generous concepts about citizenship. Note that the effects of all of this land transfer would necessitate a complete redrawing of the riding system, as large portions of the country would leave both Federal and Provincial jurisdiction.
These recommendations have been based on a cursory but careful study of the literature, including the recommendations made in the Royal Commission on Aboriginal Peoples, the content of the novel Nisga'a agreement, perspectives on First Nations cultural concerns and a historical analysis of the relationship between Canada and First Nations peoples that is ultimately rooted in critical race theory. It seeks to balance the concerns of Aboriginal and non-Aboriginal people by creating self-governance and minimizing fiduciary dependence. Due to the nature and purpose of this report, the recommendations are vague; however, I hope the general framework of two separate confederations is well received. I have concluded that such a framework is necessary to ensure that Aboriginal rights are upheld; the historical record of legislation and jurisprudence, combined with the direction taken by the current elected government and the Supreme Court's developing precedent regarding s. 35, clearly demonstrate that Aboriginal people cannot rely on the Canadian government or the Canadian people for fair or equitable treatment. The only way forward is to eliminate legislative authority. If nothing else is taken from this, please do not overlook this deduction.
Figures
Figure 1: Map of
Indo-European Haplotype markers for Indigenous
populations, demonstrating that most Indigenous populations in
Figure 2: Map of
North Asian Haplotype markers for Indigenous
populations, demonstrating a late migration over the
Figure 3: Map of Haplotype markers for populations indigenous to the
Figure 4: Map of group O bloodtypes amongst indigenous populations, indicating influence from European and perhaps African populations in the areas of first contact. This map also graphically depicts population movements due to the Indian Removal Act, and the event known as the "trail of tears". (Source: http://upload.wikimedia.org/wikipedia/commons/c/c5/Mapa_del_grupo_O.GIF, Creative Commons)
Figure 5: Proposed governing relationships.
Tables
Table I: Y chromosome frequency in
select aboriginal populations.
Group |
Language |
Place |
n |
C3 |
Q |
R1 |
Others |
Reference |
48 |
6 |
31 |
62.5 |
0 |
Bortoloni 2003[4] |
|||
|
97 |
4.1 |
15.5 |
50.5 |
29.9 |
Bolnick 2006[1] |
||
|
44 |
11 |
25 |
50 |
14 |
Zegura 2004[2] |
||
25 |
8 |
36 |
44 |
12 |
Zegura 2004[2] |
|||
15 |
33 |
27 |
40 |
0 |
Malhi 2008[3] |
|||
|
155 |
7.7 |
33.5 |
38.1 |
20.6 |
Bolnick 2006[1] |
||
62 |
1.6 |
50.0 |
37.1 |
11.3 |
Bolnick 2006[1] |
|||
-- |
398 |
9.0 |
58.1 |
22.2 |
10.7 |
Hammer 2005[5] |
||
19 |
0 |
69 |
21 |
10 |
Bortoloni 2003[4] |
|||
|
243 |
11.5 |
70.4 |
18.1 |
-- |
Malhi 2008[3] |
||
44 |
16 |
61 |
16 |
7 |
Zegura 2004[2] |
|||
71 |
0 |
87.3 |
12.7 |
0 |
Zegura 2004[2] |
|||
-- |
530 |
6.0 |
77.2 |
12.5 |
4.3 |
Zegura 2004[2] |
||
60 |
0 |
80.0 |
11.7 |
8.3 |
Zegura 2004[2] |
|||
36 |
2.8 |
75.0 |
11.1 |
11.1 |
Bolnick 2006[1] |
(Source: http://en.wikipedia.org/wiki/Y-DNA_haplogroups_in_Indigenous_peoples_of_the_Americas, Creative Commons)
(Note:
I have come across references to other groups as well that are as high or higher:
Seminoles at 50% R1 and Ojibwe at a startling 79%.
However, I haven't prioritized the time to verifying sources.)
JURISPRUDENCE
Haida Nation v.
R. v. Sparrow, [1990] 1 S.C.R. 1075
SECONDARY MATERIAL
Badcock, William T. Who
Owns
Barsh, Russell Lawrence. "Indigenous Rights and the Lex Loci in British Imperial Law" in Kerry Wilkins, ed, Advancing Aboriginal Land Claims:
Visions/Strategies/Directions (
Blair, Peggy J. Lament For a First Nation, (
Daugherty,
King George III, Royal Proclamation, online: Royal Proclamation, 1763
< http://www.specific-claims-law.com/specific-claims-background/12-royal-proclamation-1763>
Madison, James. "The Federalist no. 10" in James Madison, John Jay, Alexander Hamilton, eds, The Federalist Papers, online: The Federalist no. 10 <http://www.constitution.org/fed/federa10.htm>
Magnet,
Joseph Eliot. "Who are
the Aboriginal People of Canada?" in Joseph Eliot Magnet & Dwight A. Dorey, eds, Aboriginal Rights Litigation (
McConnell, Michael N. A Country Between: The
Nahanee, Teressa. "Speaking Notes to the Canadian Bar
Association" in Canadian Bar Association, ed, Constitutional
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[1] Two Row Wampum Treaty, 1613,
online: Wampum <http://www.ganondagan.org/wampum.html>
[2] Pope Nicholas V, Romanus Pontifex, online: The Bull Romanus Pontifex
(Nicholas V), January 8, 1455.
< http://www.nativeweb.org/pages/legal/indig-romanus-pontifex.html>
[3] William T. Badcock, Who Owns
[4] ibid., p. 4
[5] ibid., p. 5
[6] King George III, Royal Proclamation, online: Royal Proclamation, 1763
< http://www.specific-claims-law.com/specific-claims-background/12-royal-proclamation-1763>
[7] William T. Badcock, Who Owns
[8] Michael N. McConnell, A
Country Between: The
[9] William T. Badcock, Who Owns
[10] Joseph Eliot Magnet,
"Who are the Aboriginal People of Canada?" in Joseph Eliot Magnet
& Dwight A. Dorey, eds,
Aboriginal Rights Litigation (
[11] William T. Badcock, Who Owns
[12] Michael N. McConnell, A
Country Between: The
[13] Russell Lawrence Barsh,
"Indigenous Rights and the Lex Loci in
British Imperial Law" in Kerry Wilkins, ed, Advancing Aboriginal Land Claims: Visions/Strategies/Directions (
[14] James Madison, "The Federalist no. 10" in James Madison,
John Jay, Alexander Hamilton, eds, The Federalist Papers, online: The
Federalist no. 10 <http://www.constitution.org/fed/federa10.htm>
[15] Russell Lawrence Barsh,
"Indigenous Rights and the Lex Loci in
British Imperial Law" in Kerry Wilkins, ed,
[16] Joseph Eliot Magnet,
"Who are the Aboriginal People of Canada?" in Joseph Eliot Magnet
& Dwight A. Dorey, eds,
Aboriginal Rights Litigation (
[17] Peggy J. Blair, Lament For a
First Nation, (
[18] ibid., p. 83
[19] Singh, Ripan
(2008). "Distribution of Y Chromosomes Among
Native North Americans: A Study of Athapaskan
Population History". American Journal of Physical
Anthropology. < http://usmex.ucsd.edu/assets/022/10143.pdf>,
p 419-420
[20] R.
v. Sparrow, [1990]
1 S.C.R. 1075
[21] Wayne Daugherty & Dennis Madill. Indian Government under Indian Act egislation. (Ottawa: Indian and Northern
Affairs, 1980), p. 29
[22] The Institute on Governance. Summary of the Final Report of The
Royal Commission on Aboriginal Peoples, (Ottawa: The Institute on
Governance, 1997)
[23] Tracie Lea Scott, Postcolonial
Sovereignty? The Nisga'a Final Agreement (
[24] Haida Nation v.
[25] Pamela Palmater, Flanagan National Petroleum Ownership Act: Stop Big Oil Land Grab (August 7 2012), online: Indigenous Nationhood <http://www.indigenousnationhood.blogspot.ca/2012/08/flanagan-national-petroleum-ownership.html>
[26] Bea Vongdouangchanh, "Feds say Bill C-27 will bring accountability to First Nations, but critics call it paternalistic, redundant", The Hill Times (October 15, 2012) online: The Hill Times <http://www.hilltimes.com/news/legislation/2012/10/15/feds-say-bill-c-27-will-bring-accountability-to-first-nations-but-critics/32437>
[27] "Rae calls Attawapiskat 'our
[28] Pamela Palmater, "Bill S-2 - Family Home on Reserves: Protection or threat?", Rabble (October 3, 2011) online: Rabble.ca < http://rabble.ca/blogs/bloggers/pamela-palmater/2011/10/bill-s-2-family-homes-reserves-protection-or-threat>
[29] Chelsea Vowel, "First Nations Property Ownership Act Just White Paper Lite" Rabble (August 23, 2012) online: Rabble.ca < http://rabble.ca/blogs/bloggers/apihtawikosisan/2012/08/first-nations-property-ownership-act-just-white-paper-lite >
[30] "Frequently Asked Questions - Amendments to the Land DEsignation SEctions of the Indian Act", Aboriginal Affairs and Northern Development (August 19, 2012) online: Aboriginal Affairs and Northern Development <http://www.aadnc-aandc.gc.ca/eng/1350676320034/1350676521625>
[31] "Liberal Leader Bob Rae Launches Debate on His Private Members Motion to Replace the Indian Act", Liberal Party of Canada (October 22, 2012) online: Liberal.ca <http://www.liberal.ca/newsroom/news-release/liberal-leader-bob-rae-launches-debate-on-his-private-members-motion-to-replace-the-indian-act/>
[32] Brian Slattery,
"The Generative Structure of Aboriginal Rights" in John D. Whyte, ed,
Moving Toward Justice: Legal Traditions
and Aboriginal Justice (
[33] Bill Rafoss, "First Nations and The Charter of Rights"
in John D. Whyte, ed, Moving Toward
Justice: Legal Traditions and Aboriginal Justice (
[34] Teressa Nahanee,
"Speaking Notes to the
Canadian Bar Association" in Canadian Bar
Association, ed, Constitutional Entrenchment of Aboriginal Self
Government (?: Canadian Bar
Association, 1992)
[35] Bill Rafoss, "First Nations and The Charter of Rights"
in John D. Whyte, ed, Moving Toward
Justice: Legal Traditions and Aboriginal Justice (
[36] Bill Rafoss, "First Nations and The Charter of Rights"
in John D. Whyte, ed, Moving Toward
Justice: Legal Traditions and Aboriginal Justice (
[37] Tracie Lea Scott, Postcolonial
Sovereignty? The Nisga'a Final Agreement (