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Indigenous Sovereignty: Overview

"[T]he courts have held that, notwithstanding the existence of certain Aboriginal rights, the indigenous people who lived in Canada prior to colonization were too primitive to have a form of sovereignty and underlying title that required recognition by colonial authorities. Therefore, despite the fact that people lived here and had certain rights, with respect to sovereignty and underlying title Canada had been a terra nullius [i.e. uninhabited land] prior to the arrival of the colonists" (151-152).

"[I]t is inappropriate to maintain that Canada, in law, was a terra nullius prior to colonization. The alternative, then, is to accept the premise that the Aboriginal peoples who lived in Canada held underlying title and sovereignty. Were this simple fact accepted, the questions in law would become, Did Canada legitimately acquire sovereignty and underlying title from the indigenous peoples and if so how was this accomplished?" (158).

Asch, Michael. "First Nations and the Derivation of Canada's Underlying Title: Comparing Perspectives on Legal Ideology." Aboriginal Rights and Self-Government: The Canadian and Mexican Experience in North American Perspective, edited by Curtis Cook and Juan D. Lindau, McGill-Queen's UP, 2000, pp. 148-167.

"Canada has made it clear that it will not accept that 'aboriginal rights' include robust political rights, much less any that might call into question the final legislative authority of the Crown. In that regard, the prevailing view precludes the possibility that Indigenous peoples have the same right to self-determination that elsewhere we have acknowledged to be accorded to colonized peoples" (11).

Asch, Michael. On Being Here to Stay: Treaties and Aboriginal Rights in Canada. U Toronto P, 2014.

"No one has ever advanced a sound legal theory to justify the taking of Native land from the Natives of the New World . . ." (138).

Berger, Thomas R. Village Journey: The Report of the Alaska Native Review Commission. Hill and Wang, 1985.

"Indian aspirations to sovereign statehood run aground on at least two counts: key ideas contained in the European-Western doctrine of sovereignty are incompatible with core values comprising traditional Indian culture; also, the Canadian government is implacably opposed to relinquishing its sovereignty over Indians. . . . [S]tateless nationhood offers the best basis on which Indians may be able to negotiate internal self-determination" (539).

Boldt, Menno and J. Anthony Long. "Tribal Traditions and European-Western Political Ideologies: The Dilemma of Canada's Native Indians." Canadian Journal of Political Science, vol. XVII, no. 3, 1984, pp. 537-553.

"A faithful application of the rule of law to the Crown's assertion of title throughout Canada would suggest that Aboriginal peoples possess the very right claimed by the Crown. According to the Supreme Court of Canada, the rule of law consists of two interrelated legal principles: it precludes arbitrary state power and requires the maintenance of a positive legal order. Canada's assumption of underlying title and sovereignty throughout its claimed territory violates both of these fundamental principles. . . . One should not found a just country on stolen land and repressive government" (113-114).

Borrows, John. Recovering Canada: The Resurgence of Indigenous Law. U Toronto P, 2002.

"Why should the Aboriginal group bear the burden of reconciliation by proving its occupation of land? After all, the Crown is the subsequent claimant. Why should the Crown not have to prove its land claims? The Court's acceptance of assertions of Crown sovereignty ensures that the Crown does not have to meet this burden; it is not held to the same strict legal standard as Aboriginal peoples in proving its claims. This double standard is deeply discriminatory and unjust because it holds Aboriginal peoples to a higher standard in proving title, a standard that the Crown itself could not meet" (572-573).

Borrows, John. "Sovereignty's Alchemy: An Analysis of Delgamuukw v. British Columbia." Osgoode Hall Law Journal, vol. 37, no. 3, Fall 1999, pp. 537-596.

"In your legal system, how will you deal with the idea that the Chiefs own the land? . . . If the Canadian legal system has not recognized our ownership and jurisdiction but at the same time not extinguished it, what has been done with it? Judges and legislators have taken the reality of aboriginal title as we know it and tried to wrap it in something called 'aboriginal rights'. . . . We are not interested in asserting aboriginal rights - we are here to discuss territory and authority. . . . Our histories show that whenever new people came to this land, they had to follow its laws if they wished to stay. The Chiefs who were already here had the responsibility to teach the law to the newcomers. They then waited to see if the land was respected. If it was not, the newcomers had to pay compensation and leave. The Gitksan and Wet'suwet'en have waited and observed the Europeans for a hundred years. The Chiefs have suggested that the newcomers may want to stay on their farms and in their towns and villages, but beyond the farm fences the land belongs to the Chiefs" (8-9).

Delgam Uukw. "Delgam Uukw Speaks." The Spirit in the Land: The Opening Statement of the Gitksan and Wet'uwet'en Hereditary Chiefs in the Supreme Court of British Columbia, Reflections, 1989, pp. 7-9.

"How Indians became British subjects has never been adequately explained . . ." (345).

Foster, Hamar. "Forgotten Arguments: Aboriginal Title and Sovereignty in Canada Jurisdiction Act Cases." Manitoba Law Journal, vol. 343, 1992, pp. 343-389.

"Canada has for the longest time attempted to avoid the issue of how it gained title from the Indian nations who were the original occupants. Instead, Canada has acted as though it legitimately purchased the lands from the Indians" (244).

Little Bear, Leroy. "Aboriginal Rights and the Canadian 'Grundnorm'." Arduous Journey: Canadian Indians and Decolonization, edited by J. Rick Ponting, McClelland and Stewart, 1986, pp. 243-259.

"America, separated from Europe by a wide ocean, was inhabited by a distinct people, divided into separate nations, independent of each other and of the rest of the world, having institutions of their own, and governing themselves by their own laws. It is difficult to comprehend the proposition, that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or over the lands they occupied; or that the discovery of either by the other should give the discoverer rights in the country discovered, which annulled the pre-existing rights of its ancient possessors. . . . But power, war, conquest, give rights, which, after possession, are conceded by the world; and which can never be controverted by those on whom they descend" (Worcester v. Georgia qtd. 543-544).

R. v. Van der Peet, [1996] 2 S.C.R. 507

"Canadian law treats the question of when and how the Crown gained sovereignty over Canadian territories in a somewhat artificial and self-serving manner. To state a complex matter simply, the courts apparently feel bound to defer to official territorial claims advanced by the Crown, without inquiring into the facts supporting them or their validity in international law" (735).

Slattery, Brian. "Understanding Aboriginal Rights." The Canadian Bar Review, vol. 66, no. 4, 1987, pp. 727-783.

Indian Act, Section 141 (Introduced in 1927. Repealed in 1951.): "Every person who, without the consent of the Superintendent General expressed in writing, receives, obtains, solicits or requests from any Indian any payment or contribution or promise of any payment or contribution for the purpose of raising a fund or providing money for the prosecution of any claim which the tribe or band of Indians to which such Indian belongs, or of which he is a member, has or is represented to have for the recovery of any claim or money for the benefit of the said tribe or band, shall be guilty of an offence and liable upon summary conviction for each such offence to a penalty not exceeding two hundred dollars and not less than fifty dollars or to imprisonment for any term not exceeding two months" (qtd. 111-112).

Tennant, Paul. Aboriginal Peoples and Politics: The Indian Land Question in British Columbia, 1849-1989. U of British Columbia P, 1990.

"Sovereignty is fundamental to any discussion of European colonization and Indigenous rights in North America. . . . and yet tends to be ignored — or, more likely, deliberately avoided — when Canadian courts address issues of Indigenous rights. The probable reason is not difficult to identify: as courts are one of the three branches of government in the Canadian state, their own authority depends on acceptance of Crown sovereignty over the territory and people of Canada, and so they take it for granted" (293).

McNeil, Kent. "Indigenous and Crown Sovereignty in Canada." Resurgence and Reconciliation: Indigenous-Settler Relations and Earth Teachings, edited by Michael Asch et al, U of Toronto P, 2018, pp. 293-314.