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Treaty-making from an indigenous perspective : a ned’u’ten-canadian treaty model McCue, Lorna June 1998

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TREATY-MAKING FROM AN INDIGENOUS PERSPECTIVE: A NED'U'TEN - CANADIAN TREATY MODEL by LORNA JUNE McCUE B.A.(Hon.)/LL.B., The University of Ottawa, 1994 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES (Faculty of Law) We accept this thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA October 1998 © Lorna June McCue, 1998 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Department of The University of British Columbia Vancouver, Canada Date /5 OCTOQSSZ , Wfl DE-6 (2/88) i i ABSTRACT This thesis argues that the Ned'u'ten, an indigenous people, have the right to decolonize and self-determine their political and legal status at the international level. The Ned'u'ten are currently negotiating a new relationship with Canada and are considering various treaty models to achieve this goal. This thesis advocates principles for a peace treaty model that accomplishes both Ned'u'ten decolonization and self-determination. The first chapter of this thesis demonstrates that indigenous perspectives in legal culture are diverse and not homogeneous. My Ned'u'ten perspective on treaty-making contributes to these perspectives. The second chapter challenges the legitimacy of the Canadian state, over Ned'u'ten subjects and territories. This is accomplished through the rejection of dispossession doctrines that Canada has used to justify colonial and oppressive practices against the Ned'u'ten. Decolonization principles are prescribed in this chapter. The third chapter takes a historical view of the right to self-determination and shows how state practice, indigenous peoples' participation, and international scholars have attempted to articulate the scope and content of this right in the contemporary context of indigenous self-determination. A Ned'u'ten self-determination framework is proposed based on indigenous formulations of the right to self-determination. Self-determination principles are also prescribed in this chapter. The final chapter compares two cases where indigenous peoples in Canada are attempting to create a new relationship with the state: the James Bay Cree and "First Nations" in the British Columbia Treaty Commission Process. This comparison will show that the degree of participation that indigenous peoples have in implementing their rights to self-determination, will determine the parameters of any new relationship that indigenous peoples create with the state. Negotiating principles are prescribed for a Ned'u'ten-Canada relationship as well as a peace treaty process to accomplish this goal. It is my thesis that the Ned'u'ten and Canada can achieve a peaceful and balanced relationship through the peace treaty model I propose. i i i T A B L E O F C O N T E N T S A B S T R A C T i i T A B L E O F C O N T E N T S i i i A C K N O W L E D G M E N T S iv I N T R O D U C T I O N 1 C H A P T E R 1 I N D I G E N O U S L E G A L T H E O R Y P E R S P E C T I V E S 3 A . Introduction: De-centering the Colonia l Framework Through Indigenous Perspective 3 B . From Ned'u ' ten to Indigenous... 6 C . From indigenous to... 12 D . ...Ned'u'ten 43 E . Conclusion: Invitation to a Ned'u ' ten Perspective on Treaty-making 49 C H A P T E R 2 D O C T R I N E O F D I S P O S S E S S I O N T H E O R Y 50 A . Rights o f Conquest, Discovery, terra nullius and their Modern Masks 50 B . Challenging Canadian State Legitimacy B y Rejecting Doctrines o f Dispossessions 113 C . Treaty-Making V o i d o f Dispossession Doctrines 138 D . Conclusion 140 C H A P T E R 3 T H E R I G H T T O S E L F - D E T E R M I N A T I O N 143 A . Introduction 143 B . Contextualizing the History o f the Right to Self-Determination 147 C . Frameworks for Implementing The Right to Self-Determination 173 D . Ned'u ' ten Self-Determination Framework 189 E . Conclusion 194 C H A P T E R 4 A N E D ' U ' T E N - C A N A D I A N P E A C E T R E A T Y M O D E L 196 A . Introduction 196 B . Indigenous Participation Is Self-Determination 199 C . Ned'u'ten-Canadian Treaty Process 233 D . Negotiation Principles 240 E . Conclusion: A Ned'u'ten-Canadian Peace Treaty M o d e l 240 C O N C L U S I O N 246 B I B L I O G R A P H Y 247 IV ACKNOWLEDGMENTS This thesis could not be completed without the support, contributions and guidance that families, friends and colleagues have given me throughout my training in western academia. My people, the Ned'u'ten, are my inspiration, and this work commemorates my ancestors and the life forces that have enabled them to survive over a century of colonization, oppression and racism. Elders that have shared their teachings and wisdom with me have kept me still to diplomatically seek peace with a kind, honest and sharing heart. The Education Department of the Lake Babine Nation have supported my education since 1987 and have made the logistics of obtaining academic accreditation worry free. My mother has been instrumental in conditioning me to approach life critically with every step I take. My father's complicity and accounting for his peoples' dispossession of indigenous peoples homelands and status gives me hope that Canadians can take the primary step in bringing justice for past wrongs. My husband, Duncan, has stood by me, to push me to write, write, write when it was difficult to deconstruct and accept the atrocities my people face, to guard my principles fiercely and to critically examine my own thoughts while I try to liberate them, but most of all to ground me to know that the source of my strength is in our family. My daughter Samantha, who would pull me away from the computer to bring balance to rest of life around me and whose strong will shows me that her generation will be liberated. Professor John Borrows has also contributed to this thesis by continuously showing me how to approach the dominant legal culture with peace and openness and being ever patient with the pains of self-determination that I experience as a dzakaza. Professor Joel Bakan suggestions to organize and structure my thesis in a concise manner has improved this project without question. Professor Douglas Sanders for providing ample feedback and interest in my ambitious project. The U.B.C. Law Graduate Studies Program, Professor Wes Pue, Professor Karin Mickelson and Lillian Ong who have been so supportive. My friend, Ardith Walkem, has been the sounding board that I needed to test my ideas without compromising my principles or politics for short-term pragmatism. The staff and members of the Union of British Columbia Indian Chiefs have also supported me in my research for this thesis. My families and colleagues, who have supported me through this journey. The "true" hereditary chiefs at home who have put their trust in me, you have shown me that our world is waiting to flourish again. Mussie to you all. 1 I N T R O D U C T I O N As a dzakaza (hereditary chief), I see my people and ancestral territory in pain. I see our traditional governing system, the bah 'lats low in power and spirit. I see my people unbalanced, not living in harmony, and sad. They are distrustful of their own kind. I see Ned'u'ten territory pillaged, rivers polluted, forests and medicines depleted, and the population of animals decreased. I see money and unhealthy capitalistic values eroding Ned'u'ten principles of bestowing wealth to all the people and respect. I see many of my people on Skid Row in downtown Vancouver, dying from substance abuse. I see elders drunk or dying young from heart disease, diabetes and cancer. I see children being abused. I see my people being fooled again. Self-determination can be a painful process when your people are in pain already. I have seen how Canada has dispossessed my people in the past. I see how Canada continues to oppress my people today. I see how Canada plans to continue the colonization of my people in the future. I see how Canada tries to claim legitimacy to Ned'u'ten territory. I see all her masks. I see Canada racing to innocence as I remove those masks and reveal her true identity. As a dzakaza, it is my responsibility to respect my name, territory and clan relations. It is also my responsibility to ensure that "the way we do things" is passed on to my children and generations after. I have used my conventional training and knowledge of my people's ways to develop a way to remove the pain my people feel and for Canadians to wipe away the shame that clings to their name. It is my gift to both of you. This thesis proposes a way to bring peace to the Ned'u'ten and Canada. It is a study that is reflective of my perspective as a dzakaza and scholar. It is also a critical assessment of how 2 Canada has used Doctrines of Dispossession to hurt my people, to hurt my land. The right to self-determination and right to decolonization are two frameworks that I use to release the pain that my people feel, to liberate their spirits, and to wipe away the shame of Canada's name in Ned'u'ten territory. It is my hope to convince you that a healthy relationship can be established between the Ned'u'ten and Canada based on how the Ned'u'ten establish peace and harmony with each other and neighbouring peoples. Invitation If business is going to take place at a bah'lats, a deneeza or dzakaza who w i l l host the bah'lats w i l l issue invitations to all other deneeza and dzakaza o f the Ned'u ' ten clans as well as clans o f neighbouring tribes. Accompanied by members of their clan, they would travel to the homes o f each deneeza and dzakaza, dressed in their regalia. A s the host deneeza or dzakaza enter the homes o f other deneeza and dzakaza, the atmosphere is serious, solemn and respect for office is shown. Depending on the rank o f deneeza or dsakaza, the tiz, nilhwis, and sineelh w i l l be used as part o f invitation protocol. C ' i z w i l l then be used to make the invitation legal and the host deneeza or dzakaza explains the purpose o f bah'lats. Feathers are returned to show that the invited accept their invitation and both w i l l dance to acknowledge mutual respect. 1 INDIGENOUS L E G A L THEORY PERSPECTIVES A. Introduction: De-Centering The Colonial Framework Through Indigenous Perspectives It seems strange to begin by stating - Indigenous perspectives exist, they are alive. If I stated this in my people's territory, my people would look at me strangely. Of course Ned'u'ten perspectives exist and are alive... and have been since time immemorial. If I stated this to an academic audience or opened a paper with this statement, some would agree; but really, the existence of indigenous perspectives is recent, only going back thirty years or so. These conclusions may seem contradictory. However, both statements are true, depending on who you are talking to, and if the only medium of communication you are accessing indigenous perspectives from is written records. Indigenous perspectives, are not limited to the western written record nor are they frozen in a western linear continuum of time. The decision to transmit these perspectives into the written convention of western academia, in non-indigenous languages, is not a decision always made by indigenous scholars. Other mediums and venues may be chosen. Access to these perspectives may require broadening 4 conventional written training to include different frameworks of writings or oral traditions of indigenous peoples. This chapter focuses on indigenous perspectives in legal cultures situated around the colonial framework.1 Indigenous perspectives are diverse. In the context of colonialism, such diversity can provide various angles on how colonial regimes and their modern masks dominate and oppress indigenous peoples. Legal cultures provide just one standpoint for indigenous peoples to analyze and reject colonial practices legitimated by the dominant culture's usage of their law. Not all indigenous scholars come to the dominant legal culture ("DLC") equipped to combat the 'dominant discourse of colonizing powers.'2 In fact, indigenous scholars coming from their own legal cultures may look for similarities in foreign legal cultures. Whatever the reason indigenous scholars engage with the D L C (whether to search for justice, truth, equality, peace; to ensure respect for the land, family or their people; to do front-line legal work for indigenous peoples trapped underneath the DLC's gaze; or just to practice law generally), they will no doubt come across the racist masks of colonialism that have suffocated and altered the lives of so many peoples. How indigenous scholars handle or treat these masks of colonization will vary as well. The standpoint from which indigenous scholars identify and understand the colonial regime is crucial to understanding the perspectives of indigenous scholars. In learning to respect 'This chapter canvases just a handful o f indigenous scholarly writings mainly in North America and Canada. The writings selected by no means are intended to represent all indigenous writings in legal culture. Although indigenous writings are represented in indigenous communities, indigenous scholars are not wel l -represented in the dominant legal culture. Indigenous scholars active in legal culture at law schools at the time of this writing include: Heather Raven, Mar i lyn Poitras, Larry Chartrand, John Borrows, Brad Enge, James Youngblood Henderson, Wendy Whitecloud, and Gordon Christy. I look forward to the contributions that these scholars, and emerging scholars may make to legal cultures. Exposure to more indigenous scholarly writings provides a wider basin o f knowledge from which to understand the legal cultures o f so many peoples. 2 Robert Wil l iams, Jr., "Sovereignty, Racism, Human Rights: Indian Self-Determination and the Postmodern Wor ld Legal System" (1995) 2 Review of Constitution Studies 146 at 146 [hereinafter "Sovereignty, Racism, Human Rights"]. the diversity of indigenous perspectives, it has helped me to situate their scholarship around the colonial regime. Each indigenous scholar sees a different angle of the colonial regime and can speak from their position of experience. Indigenous scholars can respectively share how the same regime oppresses them and how they envision decolonization as part of self-determination. The colonial regime, however, must become de-centered. At this transitory standpoint, indigenous scholars, in my opinion, have a responsibility to uphold: not to be over-inclusive or essentialize the "indigenous." In other words, there is a point at which Ned'u'ten people can only speak for Ned'u'ten people, and no one else. There is a point at which I can only speak for myself. If this responsibility or standard amongst indigenous scholars is not respected, then the audience will read such self-determining strategies as belonging to a homogeneous, universalized or essentialized populace.3 The diversity in perspectives that indigenous scholars bring to western legal cultures is rooted in who they are as descendants of their ancestors. Ancestors who walk beside them today, who are the original inhabitants of their territories, and who through collective consciousness and memories guide indigenous peoples in all their relations in the present and for future generations. Such perspectives can also be representative of indigenous scholars' interaction with their peoples' past, present and future consciousness. These connections can be the heart of diversity that exists within indigenous perspectives. Indigenous scholars are careful to point out that their 3 In her piece, "Aboriginal Peoples and the Charter", Mary Ellen Turpel examines the reality that dominant legal culture maintains a monopoly over interpretation of human rights in Canada. By exploring the ideological context of how the Charter is interpreted, Turpel "calls into question the cultural authority of the Canadian Charter or Rights and Freedoms, and constitutional legal analysis , especially insofar as the Charter is applied to Aboriginal peoples. By cultural authority, I mean, in this context, the authority which one culture is seen to possess to create law and legal language to resolve disputes involving other cultures and the manner in which it explains (or fails to explain) and sustains its authority over different peoples." See Mary Ellen Turpel, "Aboriginal Peoples and the Canadian Charter. Interpretive Monopolies, Cultural Differences" (1989-1990) 6:3 Can. Hum. Rts.Y.B. 3 at 4 [hereinafter "Aboriginal Peoples and the Charter"]. I would like to extend this exploration to the writings of indigenous scholars, in that no one scholar should assume 'cultural authority' over the interpretation of indigenous rights or the effects that such interpretations might create with respect to indigenous peoples. 6 individual perspectives contribute to a wider variety of perspectives held "amongst" their peoples. A perspective represents one way of looking at the world. For example, in the context of establishing a new relationship with Canada, as a member of the Ned'u'ten, I have a vision about how to do so, what principles to base this relationship upon and how to maintain it. But my perspective is not the only one amongst my people. In this respect, I can only speak for myself and contribute to the creativity that my people could share with Canada in restructuring (or in my view dismantling) the current colonial relationship that "defines acceptable parameters"4 for Ned'u'ten self-determination. Through academia, indigenous scholars can share their perspectives on decolonization. At the same time, indigenous scholars can present perspectives that come not from their colonized status, but from who they are and where they come from. In this chapter, I first emphasize the difference between being Ned'u'ten and indigenous. Second, by canvassing the writings of various indigenous scholars, I highlight some of the strategies that indigenous scholars may use to bring their perspective to the D L C . Finally, I show that while some indigenous legal scholars may share strategies in decolonizing the colonial regime in their dialogues with the D L C , indigenous scholars must be careful to not represent all indigenous peoples as being homogeneous, or holding the same perspective, even if people in DLC have been conditioned to read and understand indigenous perspectives in this way. It is in this context that I bring my 'Ned'u'ten perspective' to the D L C . B. From Ned'u'ten to Indigenous... Each evening, my grandmother, tired and worn, retraced her steps 4 "Sovereignty, Racism, Human Rights", supra note 2 at 146. home, laid aside her mask, and reentered herself. 5 7 Peoples who originally inhabited their territories are known as indigenous.6 These peoples have been illegitimately dispossessed of certain territories and personhood by colonial-settler cultures. Some non-indigenous people have been socially, legally and politically conditioned to translate "indigenous" to mean "aboriginal, Indian, or First Nations" people (in the Canadian context). Understanding the difference between these constructions of "indigenous" is necessary in order to understand the diverse range of indigenous perspectives. The usage of "indigenous" is in my opinion, temporary, and will dissolve proportionately with 5 C . I. Harris, "Whiteness as Property" (1993) 106:8 Harv. L . R . at 1758 [hereinafter "Whiteness as Property"]. 6 Indigenous peoples have the right to self-identify who they are. In international discourse on the rights o f indigenous peoples, the following description is apt: A s empire building and colonial settlement proceeded from the sixteenth century onward, those who already inhabited the encroached-upon lands and who were subjected to oppressive forces became known as indigenous, native, or aboriginal. Such designations have continued to apply to people by virtue o f their place and condition within the life-altering human encounter set in motion by colonialism. Today, the term indigenous refers broadly to the l iv ing descendants o f preinvasion inhabitants o f lands now dominated by others. Indigenous peoples, nations, or communities are culturally distinctive groups that find themselves engulfed by settler societies born o f the forces of empire and conquest. The diverse surviving Indian communities and nations o f the Western Hemisphere, the Inuit and the Aleut o f the Arct ic , the Aborigines o f Australia, the Maor i o f N e w Zealand, the tribal peoples o f As ia , and other such groups are among those generally regarded as indigenous. They are indigenous because their ancestral roots are imbedded in the lands in which they live, or would like to live, much more deeply than the roots o f more powerful sectors o f society l iving on the same lands or in close proximity. Furthermore, they are peoples to the extent they comprise distinct communities, tribes, or nations o f their ancestral past. In the contemporary world, indigenous peoples characteristically exist under conditions o f severe disadvantage relative to others within the states constructed around them. Historical phenomena grounded on racially discriminatory attitudes are not just blemishes of the past but rather translate into current inequities. Indigenous peoples have been deprived o f vast landholdings and access to life-sustaining resources, and they have suffered historical forces that have actively suppressed their political and cultural institutions. A s a result, indigenous peoples have been crippled economically and socially, their cohesiveness as communities has been damaged or threatened, and the integrity o f their cultures has been undermined. In both industrial and less-developed countries in which indigenous people live, the indigenous sectors almost invariably are on the lowest rung of the socioeconomic ladder, and they exist at the margins o f power. See J. Anaya, Indigenous Peoples in International Law (New York : Oxford University Press, 1996) at 3. For examples o f other descriptions o f indigenous peoples, see I L O Convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries, June 27, 1989, International Labour Conference and U . N . Subcommission on Prevention o f Discrimination and Protection o f Minorities, Study of the Problem of Discrimination against Indigenous Populations, U N Doc. E/CN.4/Sub.2/1986/7/Add.4. 8 the level of self-determination achieved by peoples who now fit this description. For this reason, I use "indigenous" as a transitory description of peoples re-determining or dissolving their colonized identities in contemporary times. While my perspective can be labelled "indigenous", I prefer Ned'u'ten. 1. My Ned'u'ten Mask I name myself - my people name me. My people, the Ned'u'ten, have perspectives that are constituted by their relationship to the territories they have inhabited since time immemorial or more accurately since their creation story stipulates so. Territories belonging to the Ned'u'ten are located along Lake Babine in what is now northern British Columbia. The Ned'u'ten people order themselves according to a clan system and traditional governing system, the bah 'lats, which colonial-settler populations have come to call the "potlatch." The bah 'lats is structured procedurally so that there are five main stages to complete. First, the host clan must invite other clans to the bah 'lats at least a month before the proposed date. Second, on the day of the bah 'lats, there is a feast to feed the clans. Third, the business of the host clan will take place. For example, someone may be inheriting a name or paying a headstone or paying debts. Fourth, gifts are distributed by the host clan to the clans to show respect and appreciation to them for witnessing and contributing to the host's business. Fifth, the bah 'lats is completed with final speeches and prayers by deneeza and dzakaza. The Ned'u'ten speak through their language, crests, oral histories, ceremonies, songs, customs and protocols that have been passed down from generation to generation. The Ned'u'ten have a reciprocal relationship with the Creator in which they have the responsibility to care, nurture and maintain balance in the inter-connectedness of this world and on. I am a 9 subject of the Ned'u'ten. My perspective is shaped by my people's way of life as taught to me by my family, clan, and lineage of deneeza and dzakaza (hereditary chiefs), by the consciousness of my peoples' territories, my ancestors, and the role that I am learning to fulfill amongst my people as a dzakaza It is also shaped by my contributions to the Ned'u'ten as well. My "Ned'u'ten mask", is alive and is carved by me so that I can connect to my ancestors and their knowledge and transmit this life force to the yet to arrive Ned'u'ten. My perspective speaks from this mask. 2. My Mask of Aboriginality Y o u seek to "renew us; to remake us; to make us perfect, whole." Get away from my face. We are not half-human, in need o f remodelling. Carved onto my Ned'u'ten perspective is the alien-constituted subject of the "Indian"8 or "aboriginal".9 The creation of this non-Ned'u'ten subject by colonial-settler populations was to eliminate or erase the legitimacy of the Ned'u'ten and their relationship to their territories. Colonial-settler populations could then acquire Ned'u'ten territories for commercial/imperial expansion, conversion to Christianity and settlement into the so-called "New World." Manifestations of "the Indian or aboriginal subject" used by settlers to label my people include: 7 L . Maracle, I Am Woman: A Native Perspective on Sociology and Feminism (Vancouver: Press Gang Publishers, 1996) at 86. 8 See Constitution Act, 1867, [ (U.K. ) , 30 & 31 Vic t . , c.3, reprinted in R . S . C . 1985, A p p . II, N o . 5,] s. 91(24) which is the federal head of constitutional power that gives the federal government the sole jurisdiction to legislate in relation to "Indians, and Lands reserved for the Indians." The Ned 'u ' ten were now constituted as Indians under the Indian Act, R . S . C . 1985, c. 1-5. 9 B y 1982, the Canadian constitution was repatriated and amended to now include constitutional provisions that expressly relate to "aboriginal peoples" and their existing rights. In addition to being categorized as Indians, the Ned'u ' ten were also constituted by Canada as "aboriginal" with "aboriginal rights", and possible future "treaty rights". See Part II o f the Constitution Act, 1982, s. 35, being Schedule B to the Canada Act 1982 ( U . K . ) , 1982, c. 11,] and the Canadian Charter of Rights and Freedoms, s. 25, Part 1 o f the Constitution Act, 1982, being Schedule B to the Canada Act 1982 ( U . K . ) , 1982, c. 11 which is the non-derogation provision for aboriginal rights or freedoms. 10 pagans, heathens, infidels, barbarians, savages, Natives, and First Nations. The Ned'u'ten became aliens in their homelands when the Crown claimed dominion therein. In other words, the Ned'u'ten did not become British subjects upon sovereignty's assertion.10 The involuntary enforcement of this false identity on my people has impacted upon Ned'u'ten worldviews. By denying the Ned'u'ten subject status, colonial-settler populations have been able to re-constitute my peoples' territories as Indian reserve lands and Crown lands. By denying the Ned'u'ten' existence, the foreign state of Britain and later the settler state of Canada created its own identity on the backs of the Ned'u'ten; it illegitimately acquire the territories of the Ned'u'ten for the purposes of granting this territory to colonial-settler-Canadian subjects while reserving some to the Ned'u'ten (read "Indians"). By denying the Ned'u'tens' existence, and not recognizing the capacity of the Ned'u'ten to maintain the constitution of its own subjects, Canada has been able to rely on doctrines of dispossessions" to shield challenges against the legitimacy of the Canadian state as represented through its governments for settler populations. Although my people never consented to such dispossessions, they have been dispossessed. The Ned'u'ten have been treated by the settler society as "Indians"or "aboriginals" and not as "Ned'u'ten". Ned'u'ten territories have been treated as reserve lands and now aboriginal title lands.12 1 0 Kent M c N e i l rejects the contention that "indigenous peoples were aliens, and therefore disqualified by the common law from holding land within the Crown's dominions." Rather he has argued that indigenous peoples have aboriginal title rights recognizable by the common law. See K . M c N e i l , Common Law Aboriginal Title (Oxford: Clarendon Press, 1989) at 208. 1 1 Doctrines o f dispossession include but are not limited to: terra nullius, discovery (occupation), conquest (through use o f force or treaty), cultural superiority rationalizations, prescription and their modern masks. 1 2 In Delgamuukw v. British Columbia, [1997] 3 S .C.R. 1010; 153 D . L . R . (4th) 193 [hereinafter Delgamuukw cited to S .C.R.] , it was held that aboriginal title to lands, including reserve lands, i f proven by the aboriginal claimant, exist at commonlaw and are constitutionally protected by s.35(l) o f the Constitution Act, 1982. This is how the settler state colonizes Ned'u ' ten territories today as well as other peoples that have occupied and possessed their territories since time immemorial. The colonizers' laws and policies categorize all these peoples 11 As a member of the Ned'u'ten people, I am trying to carve out legal fictions such as the "Indian or aboriginal" subject used by Canada to carve my inherent existence and redefine my responsibilities (to my people and my territory) in maintaining that true existence. At the same time, I am attempting to carve out spaces that break apart the categories of identity and history associated with racism and western domination,13 the same racializations that meld my mask of aboriginality and my Ned'u'ten mask together. At a time when non-Ned'u'ten people are trying to understand the injustices and violence inflicted upon my people and possibly remedy this through a restructured relationship, it is imperative to ask: which mask you see: my Ned'u'ten mask or my aboriginal mask? Do you know the difference? The Ned'u'ten are also trying to understand how historical injustices can be remedied today by Canada. The Ned'u'ten are going through the growing pains of re-building their nation and have yet to decisively choose how they intend to order themselves today. In trying to understand these questions and resolve the confusion that exists, there are many perspectives, discourses and voices to look upon for insight and guidance. The perspective I convey and draw from, comes from both my identity as a Ned'u'ten dzakaza and an indigenous person that continues to be colonized by the Canadian state. The perspective I voice educates members of my own people of the difference between creating a relationship with Canada as Ned'u'ten (a nation-to-nation relationship based on co-existence) or as a First Nation, redefined by Canada (a nation-within a-nation relationship based on colonial-settler conquest). into one group: aboriginal peoples. For example, while the Gitxan and Wet'suwet'en people have brought their own specific legal actions in the colonizer's courts regarding aboriginal title and self-government, the decision handed down by the court affects all peoples that fit the definition o f aboriginal. This includes the Ned'u ' ten who have never consented to the colonizer 's legitimacy over Ned'u ' ten people and Ned'u ' ten territories and who have yet to create a restructured relationship with Canada. 1 3 G . Prakash, "After Colonia l ism" in G . Prakash, ed., After Colonialism: Imperial Histories and Postcolonial Displacements (Princeton: Princeton University Press, 1995) at 12. 12 C. From Indigenous to... We've opened the door and we all realize that something has to take place, but I don't think any o f us has gone through the door. We're still looking out. We are still scared what w i l l happen i f we go through the door. We are fearful o f all the labels and brands that might be put upon us i f we do go through that door... So why haven't we gone through the door? I think there are two reasons: fear and vested interest in the existing system...we are standing in the doorway. The door is open..."Let's do it." Let 's al l go through. 1 4 Indigenous scholars, in all disciplines, have to grapple with how to write about indigenous issues. Indigenous scholars can show how dominant disciplines fail to respect differences between indigenous peoples and dominant society, as well as differences amongst indigenous peoples. Mary Ellen Turpel, highlights this problem: I would like to raise some specific areas o f concern about the institutional and imaginative framework of the Canadian Charter vis-a-vis Aboriginal peoples in order to call into question what are arguably general epistemological problems with legal knowledge, reasoning and decision-making. For example, I question the extent to which the dominant legal culture has taken account o f differences between itself and Aboriginal peoples, and differences within the plethora o f Aboriginal cultures which exist, precariously, alongside Canadian society. 1 5 I question whether the dominant legal culture can take account of such differences. It would basically cause an adminstrative nightmare for Canada to do so. Further, liberal notions of treating each indigenous people with equality would be raised to defend the position that indigenous peoples are all "aboriginal". Still some indigenous scholars go under the "difference discourse" and name the racist underpinnings : the racist focuses on a perceived difference between himself or herself and the intended victim of racial discrimination. The racist perceives this difference as a deficiency: "they" do not use the land as we do and are therefore less "efficient;" or inferior." On the basis o f this negatively-perceived difference, the racist then legislates and enforces a regime o f privileges and power discriminating against his or her vict im. . .And so, through the thin veneer o f law and the assumed rights o f sovereignty and jurisdiction, the racist who has 1 4 L . Little Bear, "Part II: What's Einstein Got To Do With It?" in R . Gosse, J . Henderson, & R. Carter, eds., Continuing Poundmaker & Riel's Quest: Presentations Made At a Conference on Aboriginal Peoples and Justice (Saskatoon: Purich Publishing, 1994) at 75-76 [hereinafter "What 's Eistein Got To Do With It"]. 1 5 "Aboriginal Peoples and the Charter", supra note 3 at 6. 13 acquired and continues to hold power over his or her victim justifies what otherwise might be regarded as inhumane and irrational treatment of another human being through his or her racism.16 To understand how the "Indian/aboriginal subject" came to be legitimated by non-indigenous societies, indigenous scholars may draw upon legal theories that now exist in western and non-western canons to help explain the difference between an aboriginal and a Ned'u'ten or Gitxan, etc. Such theories may assist in explaining how aboriginal peoples came to be colonized. Indigenous scholars may draw upon teachings, approaches, strategies, methodologies or protocols of their respective peoples to illustrate their perspective. Some scholars may accept how the colonizer has constructed the identity of the 'aboriginal people' and may not take issue17 with establishing a relationship with the settler state based on this identity. While I take issue with such perspectives, I acknowledge that indigenous peoples have been changed as a result of being dispossessed and colonized; I also acknowledge that some indigenous peoples aspire to change their original governing systems to reflect some new formation of order, even if it reflects western notions of democracy or ideologies; I acknowledge that treaty relationships (yet to fully be implemented) already exist between indigenous peoples and colonizing states in some parts of North America, and for these reasons, indigenous scholars that attempt to reach greater cultural awareness between the two worlds by incorporating their systems and ways of life into the 1 6 "Sovereignty, Racism, Human Rights", supra note 2 at 173. See also "Whiteness as Property", supra note 5 at 1759 where Harris states: The racialization of identity and the racial subordination of Blacks and Native Americans provided the ideological basis for slavery and conquest. Although the systems of oppression of Blacks and Native Americans differed in form - the former involving seizure and appropriation of labor, the latter entailing the seizure and appropriation of land - undergriding both was a racialized conception of property implemented by force and ratified by law. 171 do recognize that some scholars may not have a choice due to the genocidal effects of colonial practices that have erased a large portion of a people's collective memory. At the same time, some scholars have strategically used their colonized identity to defend against attitudes lodged by the ruling elite of their people who prefer to profit from neo-colonialism . 14 dominant culture have legitimate perspectives. Such perspectives contribute to the representation of the diverse voices of indigenous peoples worldwide and should be heard with the same respect and understanding as the perspective I bring as a Ned'u'ten who chooses to speak from my "Ned'u'ten mask", and not through the "mask of aboriginality". The common thread indigenous scholars share is their efforts to educate others about the colonial relationship that has existed between indigenous peoples and non-indigenous peoples for centuries. This is an enormous and weighty responsibility. As indigenous scholarly writings continue to be carved in tandem with political activism geared towards the liberation of indigenous peoples, common goals can be enhanced, contextualized and realized. Indigenous scholars can also reassess academic literature on indigenous peoples that exclude indigenous perspectives: In the past, research concerning Aboriginal peoples has usually been initiated outside the Aboriginal community and carried out by non-Aboriginal personnel. Aboriginal people have had almost no opportunity to correct misinformation or challenge ethnocentric and racist interpretations. Consequently, the existing body o f research, which normally provides a reference point for new research, must be open to reassessment.1 8 Attention to indigenous scholarly writings provides the D L C with a wider basin of knowledge to critically analyze other academic writings that tend to downplay, deflate, restrict or interpret rights and aspirations of Indigenous peoples, especially, in a less favourable manner; with different standards of objectivity; or in a homogeneous manner: Serious problems can develop in regard to issues pertaining to aboriginal people should the academic legal literature that is being generated virtually ignore, without explanation, certain essential aspects. These aspects include: i) the relevant writings o f aboriginal people; ii) the relevant writings o f non-aboriginal people that reinforce the validity or legitimacy o f Aboriginal positions and perspectives; or i i i) an author's 1 8 Royal Commission on Aboriginal Peoples, Ethical Guidelines for Research (Ottawa:-n.d.) at 2 cited in Grand Counci l o f the Crees, Sovereign Injustice: Forcible Inclusion of the James Bay Crees and Cree Territory into a Sovereign Quebec (Nemaska: Eeyou Astchee, 1995) at 412. 15 own previous relevant analyses that had reached conclusions favourable to aboriginal peoples." Reference to indigenous scholarly writings also exposes the D L C to a greater basin of knowledge and thereby creating affirmative action in D L C : Affirmative action, a concept we have accepted in respect to bringing new colours and shapes o f human bodies into law schools, should also apply to our primary function as scholars: the exploration o f human knowledge. The new individuals we are bringing to the law schools also bring new ideas about law. 2 0 It is vital to understand the frameworks that indigenous scholars employ to shape their perspectives. By considering some of the following carving tools used in indigenous scholarship, it has helped me to respect their writings. Some Carving tools of indigenous legal perspectives 1. Historical ...to revisit the historical record, to push at the edges, to unsettle the calmness with which colonial categories and knowledges were instituted as the facts o f history. This is to shake colonialism loose from the stillness o f the past. 2 1 In trying to map out the terrain of the colonial regime, indigenous scholars may take a historical approach to show how the foundations of this regime have been landscaped by 19 Ibid, at 411-419. 2 0 M . Matsuda, "Affirmative Act ion and Legal Knowledge: Planting Seeds in Plowed-up Ground" (1998), II Harv. Women's L . J. 1 at 2. Matsuda explains her rationale for citing affirmative action scholarly writings: When outsiders' perspectives are ignored in legal scholarship, not only do we lose important ideas and insights, but we also fail in our most traditional roles as educators. We fail to prepare future practitioners for effective advocacy and policy formation in a world populated by women and men o f differing points o f view.. .Citing outsider scholarship is a political act..It challenges other readers to expand their sources and prevents the ghettoization o f outsider writing. Outsiders' scholarship is often front-line scholarship...We are intellectual workers. Our shared words can end apartheid on our bookshelves and can help to banish it from our lives. Ibid, at 4 -5, 16. See also M . Matsuda, "Voices o f America: Accent, Antidiscrimination Law, and a Jurisprudence for the Last Reconstruction" (1991)100 Yale L . J . 1329. 2 1 Prakash, supra note 13 at 6. 16 dominant cultures.22 Indigenous voices have been historically silenced. Indigenous scholars who take a historical approach are re-writing history to remedy this deliberate exclusion. The historical analysis an indigenous scholar brings to their perspective can identify the seeds, roots and origins of colonialism. It can also bring balance to the subjective version of ethnocentric and racist history that the dominant culture claims to objectify. Historical analysis can provide context, understanding and possible solutions or alternative models to dismantling such relationships at a heterogeneous level. Realigning the colonial record permits indigenous historians to use history as a tool to "fasten on to the tensions, anxieties and intermixtures in colonial discourses" and "split apart" illegitimate foundations that continue to support the present manifestations of the colonial regime.23 As 'historians of decolonization',24 indigenous scholars who take a historical approach can share their peoples stories in their own cultural medium and translate to different legal cultures how their peoples' understood contact relations with immigrant populations.25 In 2 2 Injustices are not just contemporary or isolated but rather historic, systemic and institutionalized. 2 3 Prakash, supra note 13 at 12. 2 4 See R. Wil l iams Jr., Linking Arms Together (New York : Oxford University Press, 1997) at 12 and R. Wil l iams Jr., The American Indian in Western Legal Thought: The Discourses of Conquest (New York : Oxford University Press, 1989). Professor Wil l iams, a legal historian, has through his historical approach, provided a thorough and comprehensive analysis o f the colonial regime in North America. In doing so, Wil l iams has been able to balance the one-sided version o f history as recorded in dominant legal cultures and challenge, debunk or reject myths or legal fictions constructed by the colonizer to legitimate its dispossession o f the original peoples in North America. B y historically analyzing treaty processes, negotiations and agreements reached between indigenous peoples in North American and Europeans from the 1600-1800's, Wil l iams exposes the reader to lessons that we can learn from the past to make healthy, peaceful and multicultural relations today between peoples. 2 5 John Borrows has taken a historical approach in his writings to show his readers that understanding the historical relationship o f Canada with his people, the Chippewas o f Nawash, w i l l help facilitate the understanding o f this relationship in contemporary times and particularly in the context o f self-government and sovereignty: ...I am proposing a structure around which other Native people can present their experiences to illustrate the historic continuity o f self-definition and self-government that has existed since contact within First Nations all across Canada. The structure that I suggest consists o f Native people recounting relevant incidents o f contact with settler society from the Aboriginal perspective and demonstrating how, in the face o f intrusions, their particular society dealt with encroachments on their traditional ways while preserving a measure of their self-government. 17 contemporary times, our histories can be our greatest teachers. Other scholars may find it difficult or painful to use a historical approach and will therefore prefer to write on the impacts of colonialism on indigenous peoples in contemporary society.26 Regardless of the standpoint chosen, indigenous peoples' experience as being colonized is not linear, the past is not simply the past,27 and for this reason indigenous shcolars will use a historical approach in their analysis of indigenous issues. 2. Language and Langscape the language o f freedom...how w i l l we speak it? Events that provide a common framework o f historical experience which can bring us together include: the wars involving European powers fighting on our soi l ; the effect o f Christianity; the preservation o f culture through institutions such as indigenous health care, language, and education; the signing of treaties; and the imposition o f the Indian Act. J. Borrows, " A Genealogy o f Law: Inherent Sovereignty and First Nations Self-Government" (1992) 30 Osgoode Hal l L . J . 1 at 9; See also "Constitutional Law From a First Nation Perspective: Self-government and the Royal Proclamation" (1994) 28 U . B . C . L . Rev. 1 [hereinafter "Constiutional L a w From A First Nation Perspective"]; "Negotiating Treaties and Land Claims: The Impact o f Diversity within First Nations Property Interests" (1992) 12 Windsor Y . B . Access Just. 179 [hereinafter "Negotiating Treaties and Land Claims"] . 2 6 Mary El len Turpel writes about the colonial relationship from its contemporary setting. See "Aboriginal Peoples and the Charter", supra note 3; M . E . Turpel, See also "Home/Land" [1991] 10 Can. J. o f Fam. L . 17; "Indigenous Peoples' Rights o f Polit ical Participation and Self-Determination: Recent International Legal Developments and the Continuing Struggle for Recognition" (1992) 25 Cornel l Int'l L . J. 579; "Patriarchy and Paternalism: The Legacy o f the Canadian State for First Nations Women" (1991) 6 C . J . W . L . 174; " O n the Question o f Adapting the Canadian-Criminal Justice System o f Aboriginal People: Don ' t Fence M e In" in Aboriginal Peoples and the Justice System (Ottawa: Supply and Services, 1993) at 359. In "Reflections on Thinking Concretely About Criminal Justice Reform" in R. Gosse, J . Henderson & R. Carter, supra note 14 at 208, Turpel states: We cannot erase the history of colonialism, but we must, as an imperative, undo it in a contemporary context. The challenge o f this process is great because we are not conversing outside the colonial context. We are aware that it is part o f what we say and do, and that we are attempting to resist and dismantle it. Indigenous scholars that have taken a historical approach to identifying the colonizer/colonized relationship between indigenous peoples and settler states include: J. Henderson, " M i k m a w Tenure in Atlantic Canada" (1996) Da l . L . J . 196 [hereinafter " M i k m a w Tenure"]; "First Nations Legal Inheritances in Canada" (1995) Man . L . J . 1; "The Doctrine of Aboriginal Rights in Western Legal Tradition" in M . Boldt and J. Long, eds., The Quest for Justice: Aboriginal Peoples and Aboriginal Rights (Toronto: University o f Toronto Press, 1985) at 185; H . Adams, Prison of Grass: Canada from a Native Point of View (Saskatoon: Fifth House Publishers, 1989); Tortured People: The Politics of Colonization (Penticton: Theytus Books Ltd . , 1995) [hereinafter A Tortured People]; G . Alfred, Heeding the Voices of Our Ancestors (Toronto: Oxford University Press, 1995). 2 7 R C A P , The Familiar Face of Colonial Oppression: An Examination of Canadian Law and Judicial Decision Making (Research Report) by P. Monture-Angus (Ottawa: Supply and Services Canada, 1994) at chapter one [hereinafter The Familiar Face of Colonial Oppression]. 18 Indigenous scholars must be skilled to communicate their perspectives in the language of the D L C . Misunderstandings, confusion and serious communication problems may occur when dominant languages are not carefully scrutinized. To use the DLC's language as the sole source of communication in all aspects of relationships between indigenous peoples and colonial-settler populations does not prevent the occurrence of such problems. To highlight three examples: common law property regimes have been incapable of understanding indigenous land tenure systems and do not capture the essence of how indigenous peoples understand their relationships and responsibilities to their territories;28 rights discourse does not necessarily translate into responsibilities that indigenous peoples have to their people or their territories;29 disputes over language used in historical and modern treaties in North America stem from miscommunication and sole reliance on the written record of the colonizer.30 Indigenous scholars must be careful to 2 8 Henderson takes note of how limiting the colonial language of property really is and that in no way could settlers capture the meaning of indigenous peoples understanding of their territories through the colonizer's language: Any construction of Mikmaq tenure in British law must confront the unique predicament of the colonial context - the langscape of property. Property becomes landscape when it is seen, and langscape when it reveals human attitudes and perceptions in languages or paysage interieur (the landscape of mind). This constant tension between landscape and langscape has dominated Canadian writing and judicial decisions. "Mikmaw Tenure in Atlantic Canada", supra note 26 at 202. Borrows takes a different approach to the English usage of the term "property" in his scholarly writing on land allocation and use in negotiating treaties: While the use of the word "property" is a common law creation that contains many notions that are antithetical to First Nation's understanding of land use, 1 will nonetheless use this word to describe Native concepts of land title. This is done in order to heighten the possibility that one day common law courts will recognize aboriginal views on land as possessing parallel status with "western" ideas about property, and thus provide a higher degree of protection for First Nation's land than is currently the case. "Negotiating Treaties and Land Claims", supra note 25 at 180, n. 3. 2 9 See "Aboriginal Peoples and the Charter", supra note 3 at 30-45. 3 0 Canadian cases on treaty interpretations include R. v. Syliboy, [1929] 1 D.L.R. 307 (N.S. Co. Ct.; R.\. Wesley, [1932] 2 W.W.R. 337; Francis v. R., [1956] S.C.R. 618; R. v. White and Bob (1964), 50 D.L.R. (2d) 613; R. v. Taylor and Williams (1981), 34 O.R. (2d) 360 (Ont. C.A.); Nowegijick v. R., [1983] 1 S.C.R. 29; R. v. Bartleman (1984), 12 D.L.R. (4th) 73 (B.C.C.A.); Simon v. R., [1985] 2 S.C.R. 387; R. v. Horse, [1988] 1 S.C.R. 187; R. v. Sioui, [1990] 1 S.C.R. 1025; R. v. Horseman, [1990] 1 S.C.R. 901; and/?, v. Badger, [1996] 1 S.C.R. 771. 19 not perpetuate the colonial framework through the DLC's language.31 Indigenous scholars have used the colonizer's language successfully and creatively to construct dialogues. Language is the key to understanding who indigenous peoples really are and their relationship to their territories, laws, theories, customs, and ceremonies. Language can be a diplomatic transmitter for the making or maintenance of peace with other peoples. The language characterizing any new relationship with indigenous peoples will be a new language, as it will contain both the worldviews of the colonizer and colonized. How indigenous peoples communicate with the DLC will create a new language,32 or what I see to be a fuller understanding of how knowledge is transmitted amongst peoples. 3 1 See P. Monture-Angus, Thunder in My Soul (Halifax: Fernwood Publishing, 1995) at 221 [hereinafter Thunder in My Soul] where she highlights this potential problem in structural changes to mainstream institutions o f dominant society: ...the result o f this review must be the creation o f a detailed understanding o f our oppression and the oppression of others. We must understand exactly how oppressive relations operate and are perpetuated. Language is one such condition. Language is the mechanism by which we communicate what knowledge is. Language is a powerful tool which reinforces mainstream cultural meanings and insights. Language invisibly incorporates culture into our communications...As we develop a knowledge o f justice, we must also illuminate the many other manifest ways in which gender, racial and cultural "otherness" is reinforced. 3 2 Borrows offers an explanation for the necessity of this new language he describes as "perspicuous contrast" or "a vocabulary o f comparison": Introducing a First Nations perspective into legal narrative is a two step process. First, I write from inside the galaxy o f knowledge learned through my experiences as a First Nations person. However, once I have so written, I must then compare and contrast my self understanding with other voices from different spaces. This process has been referred to as developing a language o f perspicuous contrast or, alternatively, to constructing a vocabulary o f comparison. In generating this new language o f vocabulary, one neither speaks fully in the language o f the oppressed. The vocabulary o f comparison and contrast incorporates perspectives from both cultures and requires that I question my own perspective while simultaneously challenging the other. This distinctions revealed in this process underscore and accentuate where confusion, misinformation or self-contradictions exist in our shared universe. A blending and mingling of perceptions w i l l produce a language which w i l l neither be fully Native, nor w i l l it be entirely "western." The testing o f each perspective against the other creates a new language because it allows for the critique and incorporation o f conceptions from diverse cultural understandings. This new language has the potential to transform traditional legal doctrine. "Constitutional L a w From a First Nation Perspective", supra note 25 at 6. 20 3. Stories and the Oral Tradition Framework when the first snow falls...stories fill our house... t i l ' the ice melts The art of story-telling is indeed complex, and not a medium that can be used gracefully by everyone.33 A skilled storyteller is a master of the language and of the history of his or her people.34 A skilled story-teller is able to bring stories to life in the listener's mind, heart and spirit, as if the listener is really there. At the same time, oral traditions keep ancestors peoples alive when passed on to a person that has observed and listened appropriately to the story-teller. This is a gift. Stories have the effect of saving peoples lives as well as healing and nurturing them. Stories are used to instill proper behaviour and correct improper behaviours. Stories as told through oral tradition frameworks contain the histories in many indigenous cultures and embody the legal customs and laws of a people and keep them alive. Such stories are not told in some hypothetical abstract but are based on experiential events35 that have transcended 3 3 Oral traditions are usually held by designated persons amongst indigenous cultures. Such people are responsible for carrying these traditions to the people and recounting them when appropriately asked by the people. A s it takes a lifetime to learn the histories o f peoples through this medium, not to mention the required protocols for accessing this information, elders' recounting o f the oral traditions are seen as most accurate and reliable. The Ned'u ' ten oral traditions are the primary source of knowledge for the people and are communicated to the people by deneeza and dzakaza and elders who have the authority to interpret laws and customs, and recount events from the peoples' collective memories. Stories are only told at certain times o f the year. Oral traditions are made accurate through constant verification, assessment, debate, contestion. Oral traditions receive legal sanction in the bah 'lats. 3 4 Sharon Venne discusses the oral basis for interpreting and understanding Treaty 6 and the negotiations that led to Treaty 6 evidenced in Cree oral traditions. Venne transmits this information by recounting the collective memory of her elders in the form o f story-telling. See S. Venne, "Understanding Treaty 6: A n Indigenous Perspective" in M . Asch , ed., Aboriginal and Treaty Rights in Canada: Essays on Law, Equality, and Respect for Difference (Vancouver: U B C Press, 1997) 173 at 174 [herinafter "Understanding Treaty 6"]. 3 5 Patricia Monture-Angus, in the writings I have read to date, uses a first person singular voice in her style o f writing to share her experiences in legal culture: Aboriginal history is oral history. It is probably fortunate for Aboriginal people today that so many o f our histories are oral histories. Information that was kept in peoples' heads was not available to Europeans, could not be changed and molded into pictures o f "savagery" and "paganism." The tradition o f oral history as a method o f sharing the lessons o f life with children and young people also had the advantage that the Elders told us stories. They did not tell us what to do or how to do it or figure out the world for us - they told us a story about their experience, about their life or their grandfather's or grandmother's or auntie's or uncle's life. It is in this manner that Indian people are taught independence as well as respect 21 generations and generations of indigenous peoples. Stories are inter-related or connected.36 Stories are the life line of a people and keep the people connected to their ancestors, future relations and their respected territories. While stories can provide narratives that cannot be controlled by the D L C upon initial transmission,37 there is still concern for introducing them into a written environment that may not be capable of appreciating the life teachings therein. In contemporary times, there is debate about whether to codify oral traditions in writing and within different legal cultures. Oral traditions must be treated with respect upon reception. Keepers of oral traditions may not be able control how the medium of writing may impact the transmission of knowledge to the listener/now reader and whether the receiver of this knowledge has properly understood the story. The medium of writing has the consequential effect of decontextualizing the story as well as deflating the ambiance and charisma of a good story-teller's presentation. The medium of because you have to do your own figuring for yourself. Thunder in My Soul, supra note 31 at 1. 3 6 Borrows emphasizes the intersectionality of stories in his peoples' oral traditions: However, just as the common law is only understood through a grid o f intersecting judgments, likewise one cannot understand First Nations law unless there is an appreciation o f how each story correlates with other stories. Therefore, a full understanding o f First Nations law wi l l only occur when people are more familiar with the myriad stories o f a particular culture and the surrounding interpretations given to them by their people. J . Borrows, " L i v i n g Between Water & Rocks: First Nations, Environmental Planning & Democracy" (1997) 47 U . T . L . J . 417 [hereinafter " L i v i n g Between Water & Rocks"]; See also "Wi th or Without Y o u : First Nations L a w (in Canada)" (1996) 41 M c G i l l L . J. 629 [hereinafter "Wi th or Without Y o u " ] ; "The Trickster: Integral to a Distinctive Culture" (1997) 8 Constitutional Forum 29; "Frozen Rights in Canada: Constitutional Interpretation and the Trickster" (1997) 22 A m . Ind.L.Rev. 37. Sharon Venne also points out that amongst the Cree, various portions o f a story are held by different elders so that the collective memory o f a story is not just accessible in one elder's recounting o f the oral tradition: N o one Elder knows the complete story. The information is spread among a wide group o f people for a variety o f reasons. ..So stories are spread among the people, and only through repeated and continuous contact with Indigenous communities can the complete stories be known...If one Elder is changing their part o f the story, then the parts held by other Elders w i l l not fit together. "Understanding Treaty 6" in Asch , supra note 34 at 176. 3 7 R. Wil l iams, Jr., "Vampires Anonymous and Crit ical Race Practice" (1997) 95 M i c h . L . Rev. 741 [hereinafter "Vampires Anonymous"]. 22 writing does not have the patience of complexity and attention to detail required in oral traditions.38 Indigenous scholars, when sharing oral traditions in academia, must ensure that the message of the story is not simplified to one isolated text. Nonetheless, oral tradition frameworks provide a conduit to the value and principle systems of many indigenous peoples. Just as some indigenous peoples shared their territories with colonial-settler populations, some oral traditions will be shared in mediums such as writing to transmit knowledge of the intricate legal cultures of diverse indigenous peoples. 4. Subjectivity M y voice rises up... burning your heel. The D L C purportedly rationalizes the law in an "objective" manner. Indigenous scholars who write from the margins of DLC may choose not to conform to such conveniently promoted objective standards when writing about how the DLC treats indigenous peoples. What indigenous perspectives achieve is debunking the myth that the dominant legal culture is objective (procedurally and substantively). By drawing out the subjective face of the DLC, indigenous scholars are able to demonstrate racialized differences39 and/or cultural differences40 3 8 Venne states that "attention to detail indicates the memory is accurate". "Understanding Treaty 6" in Asch , supra note 34 at 176. 3 9 Redefining racism as a social construction of difference rather than a biological difference as legitimated by science, has been the work of many critical race theorists and critical race practitioners. For understanding the problemitization o f race and racism see F. Henry, et al., eds., " 'Terminology' , and the forms of Racism," in The Colour of Democracy: Racism in Canadian Society (Toronto: Harcourt, Brace & Co. , 1995) at 44-49. See also P. L i and B . S. Bolaria, "Chapter 1: Racism and Racism," in Racial Oppression in Canada (Toronto: Garamond Press, 1988) at 15 where race and racism are distinguished: It should be clear by now that skin colour does not provide scientific grounds for classifying population groups. There is no empirical basis whatsoever for the idea that skin colour is a more salient physical feature than eye colour, or hair colour, or physical height in categorizing people. The social significance of skin colour is in itself an indication of a racially stratified society wherein skin colour assumes a social importance beyond what biological evidence warrants. A s Wi lson succinctly puts it: "it is only when social and cultural attributes are associated with physical features that the concept racial and hence that o f racial groups takes on special significance" (Wilson, 1973:6). The study o f race as a social category is inevitably a study o f the social process whereby the unequal relationships between the dominant and subordinate groups are defined and maintained on racial grounds. 23 i between the DLC and indigenous legal cultures. By challenging its objectivity and more specifically its culturally hegemonic roots, indigenous scholars can bring out the built-in limitations of the DLC's ability to foster new relationships with indigenous peoples that recognize and respect the co-existence of two legal cultures. Sensitizing the DLC legal framework requires subjective strategies on the part of indigenous scholars. Indigenous scholars that bring their perspectives to the D L C face potential criticisms such as: not being objective; being too biased; revisionist; polemic; not scholarly in their writings; and not capable of going beyond foregone conclusions. Monture-Angus has written extensively on the premises of such complaints: Dara Culhane describes racialization as an "ideological process whereby biological, genetic, or phenotypical characteristics are employed to classify categories o f people. The most common example o f the historically and socially constructed nature o f racial categories is illustrated by the varying ways Jews have been classified throughout European history, where they have sometimes and in some places been classified as a distinct "race" o f people, and at other times and in other places, not." D . Culhane, Pleasure of the Crown: Anthropology, Law and First Nations (Burnaby: Talonbooks, 1998) at 46, n. 8. 4 0 See "Aboriginal Peoples and the Charter", supra note 3 at 4 where Mary El len Turpel prefers cultural differences over racial differences: I intentionally use the term 'culture' and 'cultural difference' instead of ' race ' or 'racial difference' because 1 view this as more accurate and more expansive. The terms 'race' or 'racial differences' are too readily equated with 'colour ' or visible biological differences amongst peoples; whereas cultural differences should be understood more as manifestations o f differing human (collective) imaginations, o f different ways o f knowing. The expression 'culture difference' conjures up more than differences of appearance (colour). It allows us to consider profound differences in understandings o f social and political life. The 'cultural difference approach' has been critiqued by Sherene Razack. In the context o f education, this approach reinforces an important epistemological cornerstone o f imperialism: What makes the cultural differences approach so inadequate in various pedagogical moments is not so much that it is wrong, for people in reality are diverse and do have culturally specific practices that must be taken into account, but that its emphasis on cultural diversity too often descends, in a multicultural spiral, to a superficial reading of differences that makes power relations invisible and keeps dominant cultural norms in place. The strategy becomes inclusion and al l too often what Chandra Mohanty has described as ' a harmonious empty pluralism.'...These models suggest that with a little practice and the right information, we can all be innocent subjects, standing outside hierarchical social relations, who are not accountable for the past or implicated in the present. It is not our ableism, racism, sexism, or heterosexism that gets in the way o f communicating across differences, but their disability, their culture, their biology, or their lifestyle. In sum, the cultural differences approach reinforces an important epistemological cornerstone o f imperialism: the colonized possess a series o f knowable characteristics and can be studied, known, and managed accordingly by the colonizers whose own complicity remains masked. S. Razack, Looking White People in the Eye (Toronto: Univeristy o f Toronto Press, 1998) at 9-10. 24 A student in my public law class complained to me that he did not understand what Aboriginal rights had to do with public law. N o r did the student think the topic was being portrayed objectively even though we were reading Canadian court decisions and not the writings of First Nations Peoples. I have heard that complaint many times. What it fails to acknowledge is the fact that Canadian court decisions do reflect a specific culture, even i f that culture is not named. A s I am wi l l ing to share my perspective and acknowledge that it is an Aboriginal perspective, I am criticized for my failure to be objective. I see my willingness to share my perspectives and its biases as an effort that is honest. I was raised to be honest and not objective. The criticism is a result o f a failure to examine the contours o f academic and legal bias. 4 1 I would also add that such criticism is a result of the failure of the D L C to acknowledge that the oppression that indigenous scholars write and speak about can be objectively assessed. Certainly when indigenous scholars share their stories of oppression with each other, it is validated. However, when indigenous scholars share their angle on colonization with western academia and how it impacts them, their stories and histories risk being dismissed.42 Monture-Angus also points out that in the dominant culture, academic understanding is about sanctioning knowledge only through assertions of objectivity. Given her cultural experience as a Mohawk woman, knowledge is understood as not separating feelings from thought, the heart from the mind. 4 3 In court systems, this separation is explicit when information 41 Thunder in My Soul, supra note 31 at 37. 4 2 Howard Adams, Metis , offers his frustration when indigenous scholars who reclaim their history through their writings are dismissed by academia: A s an aboriginal historian, 1 am deeply concerned by the incredible lack o f authentic Aboriginal historical writing...Our histories are dismissed or marginalized by not including them in most bibliographies and reviews...Of course white historians offer several excuses for dismissing Aboriginals ' work. The most common argument is that Aboriginal writing lacks documentation, authenticity, or methodology, and therefore, credibility. State functionaries also accuse Aboriginal writers o f sloganeering of radical political dogma. Although they w i l l not admit it, the true reason is that Aboriginal writers, free to write from their own consciousness and perspective, w i l l challenge and eventually succeed in sidelining eurocentricism. A Tortured People, supra note 26 at 34. 4 3 Monture-Angus states that aboriginal peoples, and particularly women, must take the responsibility o f putting the heart back into the law: ...read some court judgments and hear them talk about impartiality and objectivity. It is not about your head. Where the answer lives is in your heart. Law is not about how you feel. A n d where is fairness? What is fairness? Fairness requires feeling. When you see something and it is unfair you get angry. It is in your heart, the standard o f fairness. If fairness is in your heart and the law is not about feeling, then how are we going to get to fairness? How are we going to get to justice? A s k yourself who wrote down the law. It was men who wrote down that law. They took women out o f it. Our responsibility o f this land 25 is brought before the courts in an objective and neutral mind set, excluding the emotions that are layered within indigenous peoples' claims rooted in colonial oppression.44 Monture-Angus's experience in academia has been one of negotiating contradictions whereby on the one hand, indigenous perspectives are sought out by the DLC but only in accordance with that culture's standards for locating truth and knowledge: Individuals o f Aboriginal ancestry who try to walk in both the academic world and the Aboriginal world are confronted by the profound cultural differences in the ways in which truth, knowledge and wisdom are constructed. The instructions we receive through institutionalized education indicate that we must locate truth and knowledge outside of ourselves. Introspection is not a proper research method. It is improper to footnote the knowledge that my grandmother told me. Yet , more and more frequently, Aboriginal academics are asked to explain our unique cultural ways of being. However, it is expected that the objective style o f academic writing ought not to be changed to accommodate the new understandings that Aboriginal academics bring to various disciplines. These two understandings o f truth, are perhaps, diametrically opposed. Yet these two ways of knowing co-exist within my experience. M y experience is one o f negotiating contradictions. 4 5 In the context of colonization, both the colonizer and the colonized have to decolonize in tandem before the colonial regime can truly be de-centered or dismantled and different legal cultures can co-exist. This requires the voice of the colonizer to be subjective about their relationship with indigenous peoples, to be complicit and accountable for creating masks of oppression that continue to suffocate indigenous peoples. The standards of the D L C to assess indigenous academic writings will continue to be challenged by indigenous peoples that take the is to see that they put the heart back in the law so that it starts to work for al l o f us. Then our relationship can start to be about fairness - about justice. Thunder in My Soul, supra note 31 at 149. 44 Ibid, at 133. 45 Ibid, at 218-219. Some indigenous scholars may not want to negotiate contradictions in the dominant legal culture but rather eliminate them. Again , Razack has helped me to articulate this difference: Educators and legal practitioners need only learn to navigate their way through these differences, differences viewed as unchanging essences, innate characteristics- the knowledge of which enables us to predict behaviour...Encounters between dominant and subordinate groups cannot be 'managed' simply as pedagogical moments requiring cultural, racial, or gender sensitivity. Without an understanding o f how responses to subordinant groups are socially organized to sustain power arrangements, we cannot hope either to communicate across social hierarchies or to work to eliminate them. Razack, supra note 40 at 8. 26 responsibility for transmitting their perspective as being true to their respective legal cultures' value systems, standards and life experiences. Perhaps, as more indigenous scholarly writings are shared for the purpose of decolonizing our lives, usage of subjectivity in indigenous perspectives will not seem so uncomfortable. 5. Legal Theories In these first moments in the story law tells us - in its assertion o f terra nullius -we see the central role played by the abstraction and theory in western law and culture: the world is conceived, and is acted upon, as i f reality can simply be conjured up in whatever form suits the desire o f the powerful at the moment. Within this ideology, human beings can be considered, legally, not to exist, and can be treated accordingly. A t this most fundamental, common sense level, a study of Brit ish and Canadian law in relation to Aboriginal title and rights therefore begins not "on the ground," in concrete observations about different peoples' diverse ways o f life, but rather " in the air," in abstract, imagined theory. Hovering, like the sovereign, who embodies this abstraction, over the land...It is within this space between the ideal and the real that ideologies of justification are constructed in law, government, imagination, and popular culture. This is the space wherein lies are legalized and truths silenced. In the histories o f colonial laws we can see both the mendacity and the crudeness o f the original lie o f European supremacy, and the shockingly unsophisticated nature o f the edifice built upon it...This same space between theory and practice, between avowed principles and lived experience, between the letter and the practice o f the law, is one o f the sites where Aboriginal peoples historically and contemporarily mount their resistance struggles. 4 6 Indigenous scholars may choose to contribute, challenge and create legal theories about colonization and in particular how to dismantle the colonial regime. It should be noted, however, that the development of indigenous theories on colonization is not recent: The history o f Canada is a history o f colonization of Aboriginal peoples. Franz Fanon (The Wretched Earth, 1963) and Albert M e m m i (The Colonizer and The Colonized, 1957) have convincingly shown that colonization is a pervasive structural and psychological relationship between the colonizer and the colonized and is ultimately reflected in the dominant institutions, policies, histories, and literatures o f occupying powers. Since the 1970's, Native writers and educators, including myself, have articulated this colonial experience, and in the last decade or so, a growing number o f other scholars from various disciplines and backgrounds have also begun to document Native/white relations from the context o f colonization. 4 7 4 6 Culhane, supra note 39 at 49. 4 7 E . LaRoque, "Re-examining Culturally Appropriate Models in Criminal Justice Applications" in Asch , supra note 34, 75 at 237, n. 6. 27 In contemporary times, indigenous scholars such as James [sakej]Youngblood Henderson advocate a decolonized legal regime accompanied with decolonization legal theories: Decolonizing Canadian law requires a new analysis o f property law and Aboriginal title precedents. It requires a legal theory that is not comprised o f racist assumptions. It requires an understanding of the false superiority o f colonial legal thought that is built into existing precedents. It requires a legal theory that is not comprised of racist assumptions. It cannot be assumed that British law automatically applies to North America because the Indian had no law or property systems. Such an assumption is built on supremacist colonial theory. A decolonizing legal system requires a departure from law as an artifact o f Eurocentric society, to take into account the legal history o f the actual dialogue and agreements between the nations and discovering the obvious. 4 8 Indigenous scholars have used feminist theory,49 people of colour;50 race/culture and gender analysis,51 critical race theory,52 post-colonial theory-settler theory, state theory, 4 8 " M i k m a w Tenure in Atlantic Canada", supra note 26 at 291. 4 9 Teressa Nahanee is a member of the Squamish Nation and has used feminist legal theory to shape what she calls "Native female perspective": What appears to me to be unique about feminist legal theory is the concentration on the value o f individual experience and the way in which it can contribute to legal theory. This is particularly true in looking at necessary legal reforms to make them conform to female human experience and look at law as some kind o f mathematical equation, or chemical formulation which, with some adjustment, w i l l suit any occassion. I find myself explaining and being somewhat apologetic because there are those learned "men" who w i l l wonder why there might be a Aboriginal feminist perspective? What is a female perspective? T. Nahanee, "Dancing with a Gor i l l a" : Aboriginal Women, Justice and the Charter" in Aboriginal Peoples and the Justice System (Ottawa, Supply and Services, 1993) [hereinafter "Dancing with a Gor i l la" ] ; Gorilla in the midst ( L L . M . Thesis, Queen's University, 1995) [unpublished]. See also S. M c l v o r , ABORIGINAL SELF-GOVERNMENT: The Civil and Political Rights of Women ( L L . M . Thesis, Queen's University, 1995) [unpublished] [hereinafter ABORIGINAL SELF-GOVERNMENT]. 5 0 Mary El len Turpel, John Borrows, Patricia-Monture Angus, Robert Wil l iams, Jr., K e l l y MacDonald , are just some o f the indigenous scholars that have been influenced and liberated by other peoples or voices of colours such as Audre Lourde, bell hooks, Patricia Wil l iams, M a r i Matsuda, Sharene Razack, N . Dulcos Iyer, Minh-ha T. Trinh. 5 1 Patricia Monture-Angus does not see mainstream feminism as capable yet o f shedding its colonial yoke or how colonialism meanders through the crack's o f women's ideology. She rejects the term 'aboriginal feminism' as a label to describe her perspective that is rooted in being a Mohawk first and woman next: I do not consider my position to be anti-feminist. I just do not see feminism as removed from the colonial practices o f this country. M y position is a reaction to the exclusions and intrusions I have felt from within the women's movement and feminist academia. I remain very woman-centered. Some would call it Aboriginal feminism but I have no use for a label that has no meaning for me. M y view is simple. It is the view o f a single Mohawk woman who has experienced more than a decade o f study o f Canadian law and before that a decade of overt physical violence in my life. Some aboriginal women have turned to the feminist or women's movement to seek solace (and solution) in the common oppression o f women. I have a problem with perceiving this as a full solution. I am not just a woman. I am a Mohawk woman. It is not solely my gender through which I experience the world, it is my culture (and/or race) that precedes my gender. Actual ly i f I am the object o f some form of 28 decolonization theory, post-modern theory, and theories rooted in socialist, capitalist or liberal ideologies. James [sakej] Youngblood Henderson states: [T]he current intersections o f post modernism, critical theory, feminist criticism, and post-cultural theory illuminate the need for dismantling colonial thought, its strategy o f hierarchical differentiation, and its law. Indigenous scholars are also illuminating legal theories rooted in their own legal cultures to identify and delegitimize the existence of colonial practices of the colonizer. The colonial record is realigned54 when indigenous scholars release their experiential knowledge and histories and create new theories and counter-theories55 that identify the colonizer's masks of ideological discrimination, it is very difficult for me to separate what happens to me because o f my gender and what happens to me because o f my race and culture. M y world is not experienced in a linear and compartmentalized way. I experience the world simultaneously as Mohawk and as a woman. Thunder in My Soul, supra note 31 at 177-178. 5 2 Cri t ical race analysis is necessary for understanding how indigenous peoples have been racialized and how racism has yet to be de-raced from D L C . See R. Wil l iams, Jr., "Taking Rights Aggressively: The Perils and Promise o f Crit ical Legal Theory for People o f Colour" (1987) 5 L . & Inequality 103 [hereinafter "Taking Rights Agressively"]; Thunder in My Soul, supra note 31 at 35-36; and "Constitutional L a w From a First Nation Perspective", supra note 25. 5 3 " M i k m a w Tenure in Atlantic Canada", supra note 26 at 207. 5 4 Prakash, supra note 13. 5 5 Howard Adams mentions the contributions of Ron Bourgeault, a Metis historian, to Indigenous scholarship in Canada. Bourgeault argues that the fur trade was a structure designed through European domination to prevent the possibility o f independent development by indigenous peoples. Adams states: It was a distinctive form o f dependent development that was subject to the dictates o f the powerful Western imperial nations and corporations. The lack o f autonomy in terms o f economic and political power placed Indians and Metis in a dependent and subjugated relationship to European nations. Bourgeault's theories represent a great advance over the traditional establishment notions on the history o f Aboriginal people and fur trade. He has shown that the Indian nation and the mercantile fur trade could not be studied in isolation from the historical context o f imperialism and cultural domination. He has unearthed and examined the 'non-existent' history o f Indian/Metis struggle and its radical tradition, which leads to recognition and understanding of its past in order that it may continue to develop and inform present and future struggles. Bourgeault has provided us with a new interpretation which is truly representative o f an indigenous perspective. Although Bourgeault's writings have not yet reached the popular mainstream society, they have already become influential in the Aboriginal academic community. There is no doubt that his theories and writings wi l l bring an entire new development o f intellectual thought to Indian and Metis scholarships. A Tortured People, supra note 42 at 100-101. A l s o see R. Bourgeault, Five Centuries of Imperialism and Resistance (Winnipeg: Fernworld Publishers, 1992). 29 domination. Indigenous perspectives bring you to the various masks of colonization, floating in mainstream legal theories. Legal theories used will depend on what mask of oppression indigenous scholars have encountered, experienced or their angle of how the DLC's value-base is named. Sometimes, the DLC's legal theories may intersect with indigenous perspectives. However, the colonization of indigenous peoples outside that legal culture will require indigenous scholars to transmit legal theories that can only come from indigenous peoples' experiences of being oppressed and subjected to colonial practices that reinforce indigenous subjugation, genocide, and the subordination of indigenous peoples to the lowest rung of humanity. In particular, indigenous scholars have recently challenged the rationalizations and legal justifications put forward by colonial-settler populations that have dispossessed indigenous peoples from possessing and occupying their respective territories.56 More and more indigenous scholars are rejecting these "doctrines of dispossessions" that have been used and are continuing to be used presently by colonizing powers to assert sovereignty over indigenous lands and peoples.57 Indigenous scholars are rejecting legal fictions developed in the DLC that maintain the colonial regime used by colonial-settler populations over indigenous peoples. As more and more indigenous scholars develop legal theories, legal discourses will be broadened. Counter-mythologies have already had influential impacts on conventional legal theory. It is reflective of the growing awareness of the colonized mind-sets that indigenous peoples have and their attempts to decolonize this consciousness. 5 6 See the writings o f Robert Wil l iams, Jr.; Patricia Monture-Angus; James Youngblood Henderson; and John Borrows cited herein. See also R. Clinton, "Redressing the Legacy o f Conquest: A V i s i o n Quest for a Decolonized Federal Indian L a w " (1993) 46 A r k . L . R . 77. Indigenous decolonization theories w i l l be discussed in more detail in chapter 2. 5 7 See R. Wil l iams Jr., supra note 24. 30 6. Ecological my mother wraps me with her arms holding all my creations and bestowing responsibilities to remind me how to respect her comforting From my experiences in meeting indigenous peoples throughout the world, we share the connection that our peoples value and respect the territories that we come from and the stories that accompany this interactive relationship. While it is not the place in academia to discuss such spiritual connections and worlds, indigenous peoples inherently have responsibilities to the earth, to protect, nurture and maintain our balance amongst all her creatures. At a time when DLC wears a secular mask, indigenous peoples' knowledge and relations to their territories has been subordinated to economic and corporate interests. Yet, a balance has to be restored between exploiting the earth and just letting her be. Indigenous peoples' while still colonized and oppressed, have shared teachings on respecting the earth to the D L C . John Borrows,58 Robert Williams' Jr.,59 James Anaya 6 0 and Rebecca Tsosie61 have analyzed 5 8 Most o f John Borrows scholarly writings focus on respect for the land and territorial rights o f indigenous peoples. He states indigenous peoples are most likely to be excluded from key decision-making with respect to ecological issues in a democractic sense creating racism: Since even members o f the present generation are not squarely represented in the current construction of representative democracy, one questions i f and how future generations wi l l be served. Future generations are much like indigenous peoples, and are given insignificant influence in the design o f human settlements. It appears as though indigenous peoples, past and future generations, and the environment itself are not treated as proper subjects o f democracy. They are cast in the role o f its passive objects, those which are acted upon, and are not viewed as active agents able to participate on their own terms in the formulation o f decisions regarding our settlements. They are drawn out o f the geography o f law and their ideas and institutions are erased from the philosophical maps that guide our legal imagination. This racist, agist, and anthropocentric view o f representative democracy does not bode well for environmental revitalization. " L i v i n g Between Water & Rocks", supra note 36 at 432. 5 9 R. Wil l iams, Jr., "Large Binocular Telescopes, Red Squirrel Pinatas, and Apache Sacred Mountains: Decolonizing Environmental L a w in a Multicultural W o r l d " (1994) 95 W . V a . L .Rev . 1133. Decolonizing the law in the environmental context requires 'environmental justice.' Wil l iams states that environmental racism must be identified and confronted: Indian resistance to the threats posed to our social, physical, and spiritual world by our environmental law are dismissed as attributable to "religious, magical, fanatical behvaviour. I f the story and narratives of American Indian peoples are to serve as effective and viable paths o f resistance against our currently 31 environmental racism in tandem with colonization. The DLC continues to criminalize indigenous peoples for fulfilling their responsibilities to the earth as well as for benefiting from her fruits. In the context of treaty-making or government-jurisdiction building, indigenous scholars will continue to write about how their respective territories are being affected by colonial-settler populations through an ecological approach. 7. International 6 2 In the postmodern world - one shaped by sophisticated communication technologies, emergent international institutions, and a heightened awareness o f global interconnectedness -indigenous peoples are capable o f exerting influence at the international level invoking discourse o f human rights. The openings provided by the new international human rights agenda may prove to be the most effective vehicle with which to promote the decolonization efforts o f indigenous peoples, transform the domestic policies o f the advanced democracies colonized environmental law, then the environmental racism which has been institutionalized in the deepest levels o f our society must also be identified and confronted, for it too is part o f a dying colonialism. A n d the M t . Graham controversy demonstrates how our environmental law perpetuates the legacy of European colonialism and racism against American Indian peoples. Historically, Indians have been required to conform to the dominant society's values, without any recognition o f the values that might govern Indian social life. There are no alternatives by which the great diversity within Indian communities and across Indian country can be recognized and reflected in our environmental law. Thus, our environmental law tells Indians that they must run their governments the same way that the dominant society runs their governments. This means that when the tribal government in a factualized Indian community fails to respond to a request from the Forest Service about the tribal community's religious interests in a mountain, our environmental law can treat the tribe as having no religious interests in that mountain at al l . Indians can only engage in the federal land use and environmental regulatory process through cultural and political institutions determined by the dominant society. Ibid, at 1136, 1162. 6 0 J. Anaya and S T . Crider, "Indigenous Peoples: The Environment, and Commercial Forestry in Developing Countries: The Case of Awas Tingni , Nicraragua" (1996) 18 Hum. Rts. Q. 345; J. Anaya, "Native Land Claims in the United States: The Un-Atoned for Spirit o f Place" (1994) Cultural Survival. Q . 52. 6 1 R. Tsosie, "Tr ibal Environmental Pol icy in an Era of Self-Determination: The Role o f Ethics, Economics, and Traditional Ecological Knowledge" (1996) 21(1) Vermont L . R . 3. 6 2 Mary El len Turpel comments on the use o f international fora for the recognition o f indigenous rights: There is little space within the confines of these conceptions to take interest in or recognition o f the cultural differences among Aboriginal peoples, let alone differences in the conception o f a legal order. It is therefore, not surprising that, because of the restrictions inherent in the framework for rights defined by the single state, indigenous peoples focus on the international recognition o f "rights". "Aboriginal Peoples and the Charter, supra note 3 at 20. 32 and also improve the conditions of indigenous peoples in other countries. 6 3 James Anaya, Sharon Venne, Robert Williams, Jr., Dalee Sambo Dorough,67 and Mililani B. Trask68 have been instrumental in shaping international human rights standards, norms and principles and have contributed to the formation of the Draft Declaration on the Rights of Indigenous Peoples69: Despite the shortcomings in existing and emerging international human rights instruments, it may be concluded that substantial progress is being made. The work done at the international level, by indigenous representatives, is having a positive effect on legal and political developments not only in Canada but in states around the world. Indigenous peoples themselves are increasing their efforts and involvement in the international arena. Indigenous peoples are raising the level o f international norms not merely for their own benefit but for the overall advancement o f humankind. The contributions that indigenous peoples have made in the elaboration of the right to development and the need to recognize and respect the integrity o f values, practices, and institutions are just two examples of improving upon emerging rights and standards. 7 0 Through such efforts, indigenous scholars have worked with indigenous peoples and have focused their energies on restoring their "subject" status in international fora: 6 3 "Sovereignty, Racism, Human Rights", supra note 4. 6 4 See Anaya, supra note 6; "Commenting on the Working Group Report and Draft Declaration" (1991) 8 Ar izona J. o f Int ' l . & Comp. L . 221; "Indigenous Rights Norms in Contemporary International L a w " (1991) 8 Ar izona J. o f Int ' l . & Comp. L . 1; " A Contemporary Definition o f the International Norm o f Self-determination" (1993) 3 Transnational Law & Contemporary Problems 131. 6 5 S. Venne, Our Elders Understand Our Rights: Evolving International Law Regarding Indigenous Peoples ( L L . M . Thesis, University of Alberta, 1997) [unpublished]; "The N e w Language o f Assimilation: A Br ie f Analysis o f I L O Convention 169" (1990) Without Prejudice 53; "Self-determination Issues in Canada: A First Person's Overview" in D . Clarke & R. Wil l iamson, eds., Self-determination - International Perspectives (London: St. Martins Press, 1996) at 291; "Understanding Treaty 6 " in Asch , supra note 34. 6 6 R. Wil l iams, Jr., "Columbus's Legacy: Law as an Instrument o f Racial Discrimination Against Indigenous Peoples' Right to Self-determination" (1991) 8 Ar izona J. o f Int 'l . & Comp. L . 51; "Encounters on the Frontiers o f International Human Rights Law: Redefining the Terms o f Indigenous Peoples' Survival in the W o r l d " [1990] Duke L . J. 660. 6 7 D . Sambo, "Indigenous Peoples and International Standard-Setting Processes: Are State Governments Listening?" (1993) 3 Transnational L a w & Contemporary Problems 13. 6 8 M . B . Trask, "Historical and Contemporary Hawaiian Self-determination: A Native Hawaiian Perspective" (1991) 8 Ar izona J . o f Int ' l . & Comp. L . at 77. 6 9 See U N Doc . E/CN.2/1993/29; U N Doc. E /CN.4 /Sub .2 /1994/Add. l . Sambo, supra note 67 at 45. 33 For five hundred years, Indigenous Elders have told young people that they belong to a nation o f Peoples -an Indigenous nation. This is their reality. Indigenous Peoples have accomplished considerable progress in returning to their natural status as subjects o f international law. The time w i l l come when international instruments on Indigenous rights are not drafted and adopted without the full participation and consent o f Indigenous Peoples and Indigenous nations take their place among the family o f nations. Our elders have told us so. 7 1 Through the recognition and development of indigenous peoples' rights to self-determination, human rights development and future conventions on the rights of indigenous peoples, indigenous scholarly writings can assist indigenous peoples to 1) engage in substantive dialogues with states and 2) transform domestic state policies and legislation72 that prevent or have denied indigenous peoples from realizing their self-determined destinies. This is evidenced by indigenous peoples that have participated in international fora such as the Draft Declaration, and who have recently published their experiences as part of the written historical record. 8. Rights discourse A s colonized peoples, Natives have been forced to use whatever arsenal is at their disposal in response to relentless political pressure - pressure that amounts to sociological and cultural warfare - from Canadian governments, especially on issues of land rights and (land) rights on the basis o f cultural differences, when it 73 should simply be on the basis o f inherent rights that flow from aboriginality. The politics, experience of oppression and colonization, and self-determining visions of an indigenous scholar will reflect how he or she may approach rights discourse. There is no universal approach to using and challenging rights discourse. Indigenous scholars have been able to illustrate that rights discourse can connect traditions of indigenous peoples to contemporary S. Venne, "Understanding Treaty 6" in Asch , supra note 34 at 224. Sambo, supra note 67. E . LaRoque, "Re-examining Culturally Appropriate Models" in Asch , supra note 34 at 87. 34 manifestations and which can create instruments for social change.74 Their perspectives will reveal how rights cannot be understood in isolation. The interaction between international indigenous rights; human rights; territorial rights; domestic doctrines of aboriginal/Indian rights and treaty rights; rights to self-government or autonomy; gender equality rights; cultural rights; economic rights; or language rights has been demonstrated by indigenous scholars. Oppressed peoples such as indigenous peoples have benefited from strategies that employ rights as a means to protect immediate intrusions into their everyday realities by dominant majoritarian societies as well as from a neo-colonial indigenous elite. Using the rights framework, however, is not the end of the story or strategy. Long-term struggles to achieve self-determination and to dislodge the dominant culture's hierarachical distribution of power that is used to maintain oppression and domination over indigenous peoples and which permeates through the DLC's rights paradigm, requires analyzing the foundations of this paradigm as well: 7 4 See J . Borrows, "Contemporary Traditional Equality: The Effect o f the Charter on First Nations Poli t ics" (1994) 43 U . N . B . L . J . 19 at 48 [hereinafter "Contemporary Traditional Equality"]. This article presents one perspective on the use o f rights' discourse by aboriginal women who seek gender equality in Canada as a group and the complications that can arise when translating traditions in contemporary forms through a right's framework. Borrows finds a way to mediate ideological differences raised in rights' discourse amongst aboriginal peoples: The ideology of the Charter stood as a backdrop in the development o f this discourse and subtlety helped to strengthen claims for equality. Tradition was brought forward, and its concepts were draped around the contemporary language o f rights. The dialectical interaction o f traditional practices and modern precepts forged a language that partook of two worlds. Rights talk could not overwhelm traditional convictions of symmetry in gender relationships while tradition could not ignore current concerns about equality in these same associations. People who were concerned about their traditions could use the language o f equality to preserve their interests, while people who sought for equality could use tradition to show that it sanctioned and justified the removal o f gender discrimination. This mingling of ideologies constructed an alignment o f wider interests because greater individual sovereignty and self-determination for First Nations women could potentially be seen as incorporating these same rights for the First Nations community as a whole. Thus, the use o f "rights" discourse combined the past and the present for First Nations as historical remembrances o f gender relations had to take account o f current notions of sexual equality. Ibid, at 31-32. 35 People o f color must "go under" and behind the lines of majority society's discursive practices to liberate our previously colonized and subjugated knowledges. These knowledges contain our expressions o f a w i l l to insurrection which continuously challenges the authority o f the dominant order. This w i l l , therefore, shall always press its challenge until it either expires, or the penetrative task o f our critique secures defensible positions from which to freely articulate our own visions. For peoples of color, rights rhetoric is a primitive weapon, but one we cannot affort to ignore or denigrate, though in our hearts, we may question its ultimate utitility or relevance once we secure our positions... Our scholarship as politics must be engaged at a practical, immediate level. We must be fancy rhetoricians who adopt neither a serious theoretical stance towards rights. Rather, we must adopt a warlike posture seeking to take rights aggresively. The ideals and principles represented by rights must be deployed as weapons, traps, and snares in the absence o f some other containing discursive practice which might constrain the majority from annihilating the minority. We have no choice but take rights aggressively while we buy the time needed to perfect new weapons out o f the materials at hand provided by our insurrectionist discursive traditions. 7 5 Rights discourse conjures up debates and complications not only between indigenous scholars but in their dialogues with the D L C . Translating what has been understood to be responsibilities76 to your people and your territory into rights discourse means finding a way to 7 5 "Taking Rights Aggressively", supra note 52 at 112, see also 120-121. 7 6 Mary El len Turpel takes a critical approach to the liberal, individual and proprietary base of rights and states that when understanding aboriginal cultural differences, the rights paradigm is inadequate: Although there is not culture or system o f beliefs shared by all Aboriginal peoples, the paradigm of rights based conceptually on the prototype o f right o f individual ownership o f property is antithetical to the widely-shared understanding of creation and stewardship responsibilities o f First Nations Peoples for the land, for Mother Earth. Moreover, to my knowledge, there are no narratives among Aboriginal peoples o f l iv ing together for the purposes o f protecting an individual interest in property. Aboriginal cultures are oral and the differences between cultures and European cultures can be found in stories voiced through generations, and in customary laws somtimes represented by wampum belts, sacred pipes, medicine bundles, or rock paintings. Social life is based upon responsibilities to creation and to the Creator... The collective or communal basis o f Aboriginal life does not really, to my knowledge, have a parallel to individual rights: the conceptions o f law are simply incommensurable. The duty to the Creator is the duty o f the people. There are no "rights." To try to explain to an Elder that under Canadian law there are carefully worked-out doctrines pertaining to who has proprietary interests in every centimeter o f the territory, sky, ocean, ideas and various other relationships would provoke disbelief and profound skepticism. The rights' paradigm, whether it be articulated in terms o f legal or polit ical rights, or through c iv i l conceptions o f a consolidated property right, is simply a historically and culturally specific mechanism for the resolution o f disputes and the allocation o f resources which is different from the procedures used in any o f the various Aboriginal cultures. "Aboriginal Peoples and the Charter, supra note 3 at 29-30. See also Thunder in My Soul, supra note 31 at 31 where she elaborates on teachings she has received on responsibilities: This process o f learning about creation that I was talking about earlier must encompass a reflection on and with the traditional gifts and responsibilities that we were given. I must strive to understand how I fit into creation. There are four guiding principles which illuminate the way in which we are expected to respect these traditional gifts and responsibilties. The guiding principles are kindness, sharing, truth (or respect) and strength. These principles are different aspects of the same whole (or circle). When you are kind the kindness is returned to you. When you share you reap the benefits o f what you share. Perhaps you share a 36 communicate that there are two fundamentally different frameworks rooted in two different and competing legal cultures. The DLC's only approach to date has been to criminalize indigenous peoples for fulfilling such responsibilities. In the context of how some indigenous worldviews see territories as space, James [sakej] Youngblood Henderson states that indigenous peoples have a special responsibility for their spacial consciousness: Belonging to a space is more than just l iving in a place or using its resources; it is attendant with benefits and obligations. Belonging is viewed as a special responsibility. 7 7 A responsibility framework can also capture the realities of many indigenous peoples, while a rights framework may be too abstract. "I/we have a responsibility to feed my people"; "I/we have a responsibility to teach the children how to fish according to our laws and customs"; "I/we have a responsibility to return the bones of the fish to the river and not waste this gift"; "I/we have a responsibility to protect the river that feeds me". "I/we have a responsibility to give thanks for all that I/we take from creation." This is very different from a rights framework where "I/we have an aboriginal right to fish in D L C . " In using rights discourse/framework, indigenous scholars must be aware and responsible for the possibility of jeopardizing their own respective cultural frameworks and those that belong to other cultures. Indigenous scholars may support or reject rights constructions; how they are recognized by the colonizing state; and how they are implemented. Indigenous scholars acknowledge and teaching and this is the way the teachings are kept alive. Sometimes the truth is hard, but it may be the only way that we w i l l learn. These three responsibilities - kindness, sharing and truth- w i l l lead to the fourth, which is strength. One principle cannot exist without the other three. There is no changing them. They exist just as the north wind continues to blow. A n d they shall continue to exist in this way for all the generations left to come. Responsibilities to look after the territory o f the Ned'u ' ten were carried by the Deneeza and Dzakaza and are not necessarily seen as individual rights. 7 7 " M i k m a w Tenure", supra note 26 at 219. 37 celebrate the sacrifices, efforts and survival that indigenous peoples have endured and that have led to some degree of autonomy or liberation.78 Indigenous scholars who reject the colonizer's legal construction of indigenous peoples/rights may not interpret this to be a celebration, but rather a reflection of a colonized mindset that embraces the DLC's ideologies as being superior to their own people. One just has to look at how responsibilities are dichotomized into collective and individual rights and how this demarcation is discussed by indigenous scholars in Canada.79 7 8 Robert Wil l iams critiques the critical legal studies theorists that challenge the ideological foundations o f rights' discourse in western legal cultures and argues that the rights framework, despite such foundations has provided security o f the real, tangible experience and dignity to peoples of colour: To the underclass, the "concept" o f rights has always possessed a highly instrumental character. Rights are something to get so that one is treated similarly to those in the overclass...rights whether economic, political or legal, are seen as securing a tangible dignity in the most negative senses. That is, I am treated relatively no worse in the economic, political or legal realm than that other guy, who happens to differ from me only on the basis o f racial or racial characteristics. "Taking Rights Aggresively", supra note 49 at 123. More so rights' discourse is argued by Wil l iams, to be a weapon that peoples o f colour can use in transforming legal consciousness and unearthing the oppression that these peoples experience: It is important for minority legal scholars to always keep in mind the point at which they must part ways with their C L S brothers and sisters on the path o f this transformative project. C L S scholarship as politics would seek the transformation of legal consciousness leading to the abandonement o f various so-called re-ifications such as "rights." Minori ty legal scholars, because o f the unique positions o f trust they hold from their people, must pursue a different, nonmillennialist path. Our-immediate goal must be to transform the conditions oppressing our respective peoples. These oppressive conditions demonstrate that the principles grounding the dominant society's legal and political discourse are corrupted and remain unrealized. These conditions in fact are the tangible proof o f the failure o f rights' theory. Because many o f these conditions are sustained by assumptions about the way the legal, polit ical , and social world is, the concrete political program o f minority people relies on reifications such as "rights" to speak directly to the conscience o f the dominant society. Rights discourse enables us to articulate the tangible injustices perpetuated upon peoples o f colour by the existence o f these conditions. Through rights discourse we challenge the assumptions which prevent the translation into practices o f unrealized principles revered by the dominant order, such as "rights." Ibid. 7 9 The question has arisen in political arenas of whether the Canadian Charter of Rights and Freedoms should be applied to aboriginal and treaty rights has been explored by many indigenous scholars and brings out debates on individual and collective rights as wel l . Proponents o f Charter application and individual rights o f aboriginal women include Teressa Nahanee and Sharon M c l v o r . See T. Nahanee, "Dancing With a Gor i l l a" , supra note 49. See also S. M c l v o r , ABORIGINAL SELF-GOVERNMENT, supra note 49. Indigenous scholars that question whether the Charter should apply to aboriginal peoples in Canada and who take a collective rights' approach include Mary Ellen Turpel, "Aboriginal Peoples and the Charter", supra note 3; "Patriarchy and Paternalism: The Legacy of the Canadian State for First Nations Women" (1993) 6 C . J . W . L . 174.; See also P. Monture-Angus, Thunder in My Soul, supra note 31 at 131. See also "Contemporary Traditional Equality", supra note 74 at 19; T. Issac & M . S . Maloughney, "Dual ly Disadvantaged and Historically Forgotten?: Aboriginal Women and the Inherent Right o f Aboriginal Self-Government" (1992) 21:3 M a n . L . J . 453; T. Issac, "Individual 38 At a general level, debate by indigenous scholars over whether the rights framework is adequate or appropriate for constructing and representing the interwoven realities of indigenous peoples can be a starting point to understand and unearth the colonial and oppressive elements of the DLC's ideological foundations of rights discourse. The challenge for indigenous scholars is to turn debates on rights discourse into constructive dialogues where a balance is struck between 1) the choice of using rights as a tool to shield against oppressive practices whether inflicted by the colonizer or neo-colonizers that now exist amongst our own peoples; and 2) rejecting the imposition of rights, as constructed by the colonizing power, on indigenous peoples.80 Indigenous scholars, while presenting individual perspectives on rights' discourse, must uphold their responsibility to not monopolize or speak for all indigenous peoples or groupings. 9. Indigenous Perspectives in Practice There really is not a boundary or demarcation line between perspectives and practice, like responsibilities, they are interconnected. Indigenous legal theories are practice. Robert Williams, Jr. refers to theory and practice as "thinking independently and acting for others."81 There are many factors that can explain this reality. It is not enough to present an angle of the colonial regime through your perspective as an indigenous scholar. Perspectives also contribute to dismantling the colonial regime when indigenous scholars participate in the life of their people or respective community. Scarcity of indigenous legal practictioners also gravitate indigenous scholars to put their perspectives into practice outside academia fora. Indigenous scholars do Versus Collective Rights: Aboriginal People and the Significance o f "Thomas v. Norris" [1992] 21:3 Man .L . J . 618. 8 0 In the context o f whether indigenous justice systems should be separate or included into the Canadian justice system, see constructive dialogues by indigenous scholars, practitioners, judges and commissioners in Gosse, Henderson & Carter, supra note 14. 8 1 "Vampires Anonymous", supra note 37 at 742. 39 not have the privilege to just sit back in their offices and put their thoughts unto computer screens. Life is just not that individual. Putting your mind into practice outside law journals is viewed by indigenous communities as the norm, standard, and a healthy mindset that indigenous scholars should possess especially given the migrancy between D L C and indigenous legal cultures. Balance is the key between your mind, body and spirit. A n indigenous scholar's ties to their people or community can provide the backbone and strength they require when faced with the constant energy depletions caused by breathing in D L C . To avoid their perspectives from being ghettoized to law review articles, many indigenous scholars publish outside D L C . Maintaining connections to your people and community can prevent you from being engulfed into a culture that can erase who you are and where you come from. At the same time, sharing your perspective within dominant legal practice gets your message out to a wider audience and hopefully across professions and disciplines as well. One way to put perspective into practice is to tailor legal academic training for law students to the needs and demands of indigenous people both in urban and traditional territories. Renee Taylor, a clinical law professor at University of British Columbia and indigenous practitioner directs an aboriginal law clinic in Vancouver as part of the University's public interest law advocacy theme in providing practical educational experience to law students. Both indigenous and non-Indigenous law students can receive practical legal training in mostly "front-line" work for indigenous peoples who cannot afford legal representation, as well as providing supervised legal services to indigenous governments, other universities, and indigenous organizations. Taylor describes the reciprocal relationships that indigenous law students have with the larger indigenous community: Indirectly, the Faculty o f Law, through the V A J C clinic, has had extensive contacts with First Nations organizations and clients. Virtual ly every major aboriginal organization has offered letters o f support for 40 the clinic at the V A J C and referred cases to the cl inic. A s wel l , the clinic is routinely asked by various tribes to give opinions on a wide range o f legal matters, such as co-management agreements between the tribe and the provincial government's Wildl i fe and Fisheries Department and child protection agreements between tribal governments and the province's Ministry o f Social Services and Housing. We have also been asked to draft by-laws for various aboriginal groups. Individual cases, however, comprise the bulk o f the workload. The cases are a combination o f criminal, c iv i l , family, and aboriginal rights. A maximum of seven students work as the V A J C per semester. The clinicians, thus far, have consisted o f half aboriginal people and half not. The students have, in a relatively short period o f time, built a good reputation with crown council , judges, and the police. More importantly perhaps, is that many o f the First Nations students state that they can now see trial work as a viable option. The clinic builds self-confidence by teaching students to prepare cases thoroughly and to aggressively pursue their clients' interests. Standard law office procedures are followed, giving students an opportunity to hone their skills prior to the articling period. The biggest impact, however, has been on the clients. First Nations people are generally delighted that they can access aboriginal counci l . 8 2 Other ways to bring indigenous perspectives to the dominant culture have been used by indigenous scholars including: speaking to high schools, the judiciary, churches, indigenous peoples both on-reserve and off-reserve. Robert Williams, Jr. describes how he incorporates legal theories into practice both at the university and within Indian communities: ....I'd always try to incorporate some critical race theory aspect into those student assignments; for example, I 'd develop a conflict mediation problem around the topic o f environmental racism, or I would ask them to do a research paper on what critical race scholars have to say about John Locke on property or law and economics. Teaching is a vital part o f translating critical race theory into practice. It's the students...They're future practictioners who won't have a lot o f time to read law review articles on critical race theory when they get out into the real world....I wrote an article for a bar journal review, and produced other, information-type pieces for Indian Country newsletters, enclyclopedia-type publications,..I was reaching more people-different types o f people-with the message, and that's what doing Crit ical Race Practice is al l about in my mind. I became semi-computer literate and started using the Internet..I became a co-editor o f an Indian law casebook, and incorporated critical race, critical legal studies, feminist, and indigenist materials in a new edition. I wrote a teacher's manual and accompanying syllabi that explained how the book could be used in a graduate or undergraduate ethnic studies course on Indian law and policy. I taught myself how to write grants and raise funds for various projects that needed to be done by the various organizations I was involved in, or to get funding for tribal judge training conferences and community workshops...I had probably been doing Crit ical Race Practice in a semi-serious vein for about two or three years when I decided in 1990 to go really big time and begin offering a clinical seminar on what I called "Tribal Law" ; or what became known as the Tribal Law C l i n i c . . . A l l o f our projects are approached as efforts at decolonizing United States law and international law relating to indigenous peoples' rights. Students are encouraged to try to understand how the legacy o f European colonialism and racism are perpetuated in contemporary legal doctrine, to expose that legacy at work in the project they are working on, and to develop strategies which delegitimate it, literally clearing the ground for the testing an R. Taylor, " A l l M y Relationships" (1996) 26 N e w Mex . L . R . 191 at 195. 41 development o f new legal theories. Kelly MacDonald, a full-time practitioner and part-time L L . M . candidate at the University of British Columbia incorporates women of colour theory into her area of practice which is family and child protection. She conducts workshops for social workers both indigenous and non-indigenous on how the Canadian constitution creates jurisdictional problems in the area of Child and Family Law and its effects on indigenous groups who are seeking greater autonomy over providing social services to their people. As interim Director of the First Nations Legal Studies at the University of British Columbia, she co-authored a report critiquing the lack of aboriginal women participation in all aspects of the British Columbia Treaty Commission Process.84 Kelly MacDonald's academic and practitioner work has contributed to what she terms "indigenized feminism." Sharon Mclvor, Teressa Nahanee, Patricia Monture-Angus; James Youngblood Henderson85 have all worked in the area of criminal justice and have documented their experiences in their scholarly writings and reports to government commissions. In the era of self-government and 'alternative aboriginal justice systems' talk"; these scholars have contributed their experiences (personal and professional) of violence against women, children, and aboriginal peoples overall. Many indigenous scholars produce research, opinions, analysis for local, regional, national, and international indigenous political organizations as well as for D L C . In Canada, 8 3 "Vampires Anonymous", supra note 37 at 762-63. 8 4 K . MacDonald , E . Herbert & K . Absolon, "Aboriginal Women & Treaties" (Vancouver, 1996) [unpublished]. 8 5 See S. M c l v o r , ABORIGINAL SELF-GOVERNMENT, supra note 49; T. Nahanee, "Dancing with a Gor i l l a" , supra note 49; P. Monture-Okanee, "Thinking About Aboriginal Justice: Myths and Revolution" in Gosse, Henderson & Carter, supra note 14 at 222; P. Monture-Okanee and M . E . Turpel, "Aboriginal Peoples and Canadian Criminal Law: Rethinking Justice" (1992) U . B . C . L . R . (Spec. Ed. : Aboriginal Justice) 249; M . E . Turpel, " On the Question o f Adapting the Canadian Criminal Justice System for Aboriginal Peoples", supra note 26; M.E.Turpe l , "Reflections on Thinking Concretely About Criminal Justice Reform", in Gosse, Henderson & Carter, supra note 14 at 206; J . Henderson, "Implementing the Treaty Order" in Gosse, Henderson & Carter, supra note 14 at 52; J . Henderson, " A l l is never said" in Gosse, Henderson & Carter, supra note 14 at 423. See also M . Sinclair, Associate Ch ie f Judge, M a n . Prov. Ct., "Aboriginal Peoples, Justice and the L a w " in Gosse, Henderson & Carter, supra note 14 at 173; T. Quigley, "Some Issues in Sentencing o f Aboriginal Offenders", in Justice and the Law" in Gosse, Henderson & Carter, supra note 14 at 273; L . Little Bear, "What 's Einstein Got To D o With It", supra note 14; P. Chartrand, " Issues Facing the Royal Commission on Aboriginal Peoples" in Gosse, Henderson & Carter, supra note 14 at 357. 42 numerous reports were commissioned from indigenous scholars in North America for the Royal Commission on Aboriginal Peoples.86 Practicing perspectives is indeed a necessary requirement for indigenous scholars to incorporate into their academic careers. John Borrows and Darlene Johnston are from Cape Croker on the western shores of Georgian Bay and have made invaluable contributions to their people as well as indigenous perspectives. John Borrows designed the "Intensive Program in Land and Resources and First Nations Governments" in 1993 and has taught the program with Shini Mah and Gordon Christy. This program is offered at Osgoode Law School as a 15 week course that combines both a class room component as well as a community (First Nations or legal) component for students. Over 50 indigenous and non-Indigenous students have accessed the program since its inception. Darlene Johnston has taught at the University of Ottawa. She returned to practice in her community and has provided excellent legal research and advice on areas of aboriginal rights, land claims, and self-government. Her work has received honourable mention by the Canadian judiciary in R. v. Jones87, an aboriginal rights case concerning the right to harvest fish and where Jones was successful in proving that he had such a right. As I have pointed out the various tools that indigenous scholars have used to carve out their own perspectives have been instrumental in providing different angles of the colonial regime. Identifying the current masks of oppression as well as contributing to the transformation of the existing colonial regime is a weighty task. Indigenous perspectives, being diverse, can facilitate this project through expressing their experiences of being dispossessed and oppressed. Indigenous perspectives at the same time can contribute to visions of self-determination, of no longer being colonized and oppressed by the dominant society. While scholars such as Robert Williams, Jr., Patricia Monture-Angus, James Youngblood Henderson and John Borrows have begun the process of decolonizing D L C , indigenous scholars entering D L C can carry on their hard work and develop more indigenous strategies both in the context of colonization and in relation to their peoples or groupings. 8 6 Paul Chartrand, a Metis law professor was appointed to be a Commissioner for R C A P . See also P. Chartrand, Manitoba's Metis Settlement Scheme of1870 (Saskatoon: Native L a w Centre, University o f Saskatchewan, 1991); "Aboriginal Rights: The Dispossession of the M e t i s " (1991) 29 Osgoode H a l l L . J . 457. 87 R .v. Jones (1993), 14 O.R. (3d) 421. (Ont. C A . ) 43 D Ned'u'ten Speaking from my 'Ned'u'ten mask', my perspective on D L C can provide an angle of how my people and myself have been colonized and how the legal system has been used to accomplish this goal. As a Ned'u'ten, I can also share decolonization strategies tailored to my people's aspirations. How I envision the implementation of self-determination for my people is just one perspective amongst many. It is principled. I do not believe in compromising my principles for political or legal pragmatism. In studying D L C , like other indigenous scholars, I have set out to ascertain its value base, its hegemonic roots, and how it positions different legal cultures subordinant to it. I am still on this journey. I am still exploring the colonial site. Upon entering D L C in 1991, my primary goal was to understand the legal arm of the Canadian state to supplement the economic and political dimensions of the state that I had already studied in undergraduate work. At law school, I had just enough time to learn the nuts and bolts of Canadian law, while balancing clinical work and meeting countless numbers of indigenous peoples throughout the world. I remember having a discussion with an indigenous graduate law student over the Sparrow88 decision. He was very upset about the 'justification test' for infringing aboriginal and treaty rights. I dismissed his concerns thinking, "but don't you see, Mr. Sparrow has an aboriginal right to fish, he won." Being in Ottawa, I was able to see and participate as a youth in indigenous national politics, organizing conferences for indigenous youth during the Charlottetown Accord process, conduct research for the Royal Commission on Aboriginal Peoples, organize indigenous youth for the U N Earth Summit, support the Mohawk people during their resistance, and set my course for home. I did not make time to delve into the murky waters of DLC and examine closely its roots and how this arm of the Canadian state would sanction so many atrocities against indigenous peoples. My anger had not been named yet. Upon returning to British Columbia to clerk for the British Columbia Court of Appeal and complete my articles, I decided that there was enough I needed to know about the legal dimensions of the Canadian state. As I began my journey as a hereditary chief, I became more conscious of how my peoples' governing system was still very much intact, how strong our language was and excited about how much I had to learn. This was very different from my observations of indigenous peoples in the east, as Indian Act governments and national See/?, v. Sparrow, [1990] 1 S.C.R. 1075. 44 organizations were the only forms of governance or political fora that I saw. I also realized that the spirit of indigenous peoples in the East was very strong compared to what I observed when I came home in the West. Some ceremonies of eastern indigenous peoples were separate from governance and this struck me as different because ceremonies form such an important part of my people's bah 'lats. Outside the political realm, however, this is not the case. Colonization and oppression continue to prevent this generation from accessing a balance. My goal was to go back to my people and territory after getting called to the bar. I have yet to achieve this goal. My mother's status was taken away before I arrived because she had married a non-Indian. In 1987,1 was reinstated. I grew up knowing what Canadian culture was, speaking English only, and experiencing racism without being able to name it and confront it. Going back home was to fill this void in my life. However, as decisions on aboriginal rights and as the treaty process unfolded, I realized that I did not learn all that I needed to know about DLC so that I could teach my people about it. As I learned more about the bah 'lats and my role as a dzakaza, and about the treaty process, I began to realize just how much my people's way of life was in jeopardy, especially if they embarked upon a course that would lead to extinguishing our rights as a people. While my people have never ceded their territories to the Canadian crown, nor engaged in any warfare, I could not understand how Canada acquired my people's land outright. During law school, I just assumed that once my people treatied with Canada, they and other indigenous peoples in British Columbia would finally be a part of Canada and begin a prosperous road to developing a productful way of life. Yet the principles of treaty-making that I had learned from elders across the country during law school were not sought after by my people as they participated in the treaty process currently underway. While I saw indigenous peoples' pursuing economic self-determination, I did not see sacred, solemn or spiritual and cultural self-determination on the table. Further, any treaty completed in the treaty process would be a domestic treaty, would include the province of British Columbia as a party to any agreements and would not entail 100% recognition of my peoples' territories. Rather, models proposed included 5% recognition of indigenous lands. Although the Delgamuukw decision has increased the bargaining power of indigenous peoples at the treaty table, I still view this decision as being colonial. I could not accept this. My responsibilities as a dzakaza became to protect our traditional governing system 45 and the territories, 100%. And so began my journey back into the D L C , to answer that burning question: How did Canada acquire my peoples' territories legally? The answers I found, with the assistance of all the indigenous scholars canvassed in this chapter, allowed me to name my anger. I did not like the truths that I found and, honestly, I do not think I could go back to my naive conclusions about DLC. It is very hard for me to read decisions on aborignal and treaty rights, knowing how aboriginal and treaty rights are constructed (not recognized) by the Canadian state. In learning how my people and in particular how I have been colonized and dispossessed by illegitimate means, there is only one place I could go: the site of decolonization. My memory flashed back to that indigenous graduate law student telling me the Sparrow decision was the worst thing that could have happened to indigenous peoples. Seven years later, I finally understand him. Seven years later, I clearly see my mask of aboriginality. Seven years later, my journey has lead me to my Ned'u'ten mask. Seven years later, I can finally hear my ancestors and they are telling me that "it is not the right time to treaty." My perspective as a Ned'u'ten and indigenous scholar is motivated by my search to find an alternative treaty process for my people. Indigenous scholars mentioned in this chapter have already presented treaty perspectives about treaties made since the 1600's. My perspective is on treaty-making in the new millenium. But my answers require reaching back into the past in both DLC and Ned'u'ten legal culture in order to begin to de-centre and dismantle the colonial regime that hovers over my people and our territory. It is my thesis that decolonization theory does not just start from today. Rather, both Canada and the Ned'u'ten, you and me, must fasten onto our past and begin to decolonize there. In carving my Ned'u'ten mask or perspective in relation to this thesis, I use many of the tools that indigenous scholars have already employed in their writings. My approach is historical; based on oral traditions as used in the bah 'lats; and uses decolonizing language to communicate to the audience. It is also subjective and objective. Indigenous legal theories are used to challenge colonial theories that maintain the colonial regime. I have also benefitted from the theories and writings from other peoples of colour or what I call "oppression theorists." They have helped me to liberate my colonized consciousness at the same time as dismantling the 46 colonial regimes' racialized construction. Treaty-making in relation to indigenous peoples is an 'international act.' I have used rights discourse, in particular, the right to self-determination and the right to decolonize, to internationalize a Ned'u'ten-Canadian relationship through treaty-making. In the end, carving my 'Ned'u'ten mask' has been grounded in my political activism with my people through my participation in the bah 'lats. In other words, my alternative treaty model has been presented to my people in the bah 'lats for consideration and debate. These are the tools that I have used to shape my thesis and perspective. It is unnatural for me to limit my perspective to legal culture discourse whether it originates from D L C or Ned'u'ten legal culture. For this reason, I have taken an interdisciplinary approach to include the writings of scholars in fields of anthropology, history, geography, political, literary criticism and physcology, etc. This is an act of balance which can also be reflected in my comparisons of indigenous legal cultures and D L C as well as differences between indigenous peoples' efforts to decolonize. It is clear that to dismantle the indigenous-colonial state relationship, the writings of indigenous peoples can be fundamental to this project and for this reason, I have deliberately employed 'indigenous thoughts' into my story. Yet as I de-center myself from the colonial regime, my 'Ned'u'ten mask' takes form and shapes how I envision my people and Canadians being decolonized and living in peace. This is the true source of Ned'u'ten power, and my energy to rooted here. I have chosen to structure my thesis in four parts, however, not according to the standard academic linear framework. Rather, since most Canadians do not understand that indigenous peoples, such as the Ned'u'ten, have governing institutions and processes for living peacefully and harmoniously, I have used a bah 'lats framework' to shape each chapter of this thesis. Generally, when a bah 'lats takes place there is 1) an invitation process; 2) a feast; 3) the business; and 4) gift-giving. For example, i f an individual Ned'u'ten is to get a hereditary name by succession and/or inheritance, then that person will have to hold the requisite amount of bah 'lats to receive this name appropriately. This will include a "smoke" party, where the individual will state his or her intention before deneeza and dzakaza; another bah 'lats to pay for the name; payment of your seat to each of the clans when they host a bah 'lats; and payment for your regalia at another bah 'lats. Each of these stages to the taking of a name, is known as the "business" that occurs in our governing system. The process is the same for other "business" 47 such as the headstone bah 'lats; funeral bah 'lats; drying up the grave bah 'lats; transfer bah 'lats; shaming bah 'lats etc. Framing my thesis in this way allows the reader to access the thought processes that my people have used to establish social relations and peace. In the same way, i f I intended to bring the discussion of an alternative treaty process to the bah 'lats, I would have to invite deneeza/dzakaza to this "business." To contextualize my thesis in this framework, therefore, is only natural. Invitation: Chapter 1 Every bah 'lats will start with the host clan inviting deneeza and dzakaza to the intended business, at least 1-2 months in advance. Before paved roads and automobiles, it would take over a week to travel between communities and invite deneeza/dzakaza to a bah 'lats. When I invited deeneza and dzakaza, to attend and witness, the taking of my grand-father's name, it took over four days. I went to the communities of Woyenne, Fort Babine, Nedo'ats, and Tachet. I also invited the Wet'suwet'en from Moricetown. Some deneeza/dzakaza live in municipalities such as Smithers, Prince George, and Vancouver, so they had to be invited as well. Members from my clan and my mother travelled to each house, dressed in regalia. I wore my grand-father's blanket. I would express my intention to do business before each deneeza/dzakaza and after all protocals were complete, we would visit. I have chosen this introductory chapter to be like an invitation to a bah 'lats. This chapter identifies the purpose of the "business": to establish a decolonizing framework. It also provides the reader/guest with the opportunity to witness my business by reading on. This chapter outlines the approach I have taken to carve out my perspective as a Ned'u'ten and is therefore unique and specific to this project. It is my hope that, like attending a bah 'lats, the reader will leave this thesis with something to take with them and know that I appreciate the time and interest that they have put into witnessing my business. Feast: Chapter 2 When guests arrive to witness the host clan's bah 'lats, they are appropriately seated and immediately fed by the host clan. Deneeza and dzakaza have often travelled long distances to attend the bah 'lats and given the usual length of a bah 'lats, will need food to nourish this responsibility. It is my intention to feed the reader with the knowledge in chapter 2. This is my legal theory chapter. It sets the foundation for the business to take place by suggesting principles, 48 that I consider necessary for nation-to-nation treaty-making. It is my hope that as the reader continues to read this thesis, chapter two will nourish the reader's understanding of the purpose of my alternative treaty model and the efforts by indigenous peoples to decolonize. Business: Chapter 3 After the deneeza/dzakaza are fed, the business will take place and the bah 'lats will be legally sanctioned with swan down to bring the government to order so to speak. After the business has been completed, the head deneeza/dzakaza will each speak about the business. Chapter 3 is my "business" chapter. It focuses on treaty-making at the international level and discusses how the right to self-determination framework can legally pave the way for indigenous peoples such as the Ned'u'ten to restore their international subject status and be recongized in the international community with political and legal rights. I do not believe that any new relationship with Canada and my people should be domesticated. It is indeed an international relationship. Principles for the internationlization of this relationship will be discussed as well. Not all business is concluded at one bah 'lats. For example, the taking of a name could be discussed by all clan members for up to a year, especially if there is competition for the name by members of the same clan. Likewise, the principles that I suggest for restoring the Ned'u'ten to their international status are for meant for consideration and can be discussed and elaborated upon further. It is my hope that such consideration will lead to some concrete foundations for nation-to-nation treaty-making. Gift Giving: Chapter 4 Once all the business is finished there is a give-away or distribution of gifts according to rank of deneeza/dzakaza. Sugar, flour, coffee, traditional meats, and non-perishable foods, towels, cloth, clothes, blankets are distributed to the guests. No one is to leave the bah 'lats hall empty handed. In the same way, Chapter 4 is my gift to my people to take with them when they participate in treaty-making with Canada. The discussion therein centers around an alternative treaty process and the principles, once again, to achieve this. Each bah 'lats is opened by the head speaker of the host clan with a prayer and welcome. Each bah 'lats closes with a prayer and kind words to thank the people for witnessing the host clan's business and for the safe return of the guests to their homes. The introduction and conclusion of this thesis is the opening and closing of my business. Now that a brief description 49 has been provided of how I have structured my thesis, my perspective as a Ned'u'ten dzakaza can proceed. This is how I carve my 'Ned'u'ten mask. E. Conclusion: Invitation to a Ned'u'ten perspective on treaty-making I now invite you to my challenge of the legitimacy of the Canadian state in my peoples territories, and the rationalities used by Canada to acquire Ned'u'ten territories and jurisdiction over these territories. I now invite you to witness how a true nation-to-nation relationship can be obtained with Canadians through a peace treaty. This can be accomplished through indigenous formulations of the right to self-determination, a universal human right that my people are beneficiaries of and a right that will carry them into the new millenium as subjects in international fora. I now invite you to witness my process for the decolonization of the Ned'u'ten. This is my "bah 'lats business" and you are invited. Now it does not seem so strange. 50 Feast After ample time o f preparation, the host clan and deneeza or dzakaza, w i l l then begin to conduct business in the bah'lats. On the day o f the bah'lats, the guests w i l l come to the hall and be greeted by the head o f the host clan who w i l l announce their names to a l l present. The deneeza and dzakaza are then escorted to their seat. Before they are seated to witness the business, the floor is struck many times with an invitation stick. The guests are seated according to their clan affiliation. A s more guests arrive, the seated deneeza and dzakaza are fed by the host clan with food from their territories. 2 DOCTRINE OF DISPOSSESSION THEORY A. Rights Of Conquest, Discovery, terra nullius and their Modern Masks mauvaise volonte -Sartre-Newcomers and indigenous peoples have yet to find a way to live with each other in North America, even though over five hundred years have passed since first contact. We have not yet found a way to communicate to each other, though numerous attempts have been made. The use of treaties to chart a course for establishing relationships between indigenous peoples and the newcomers would serve different and, until recent treaty discourse, clearly opposite purposes. The newcomer's practice of making 'conquest treaties' amongst themselves clashed with indigenous peoples' understandings of making peace by establishing relationships. While the former considered the status of indigenous peoples as mostly 'defeated' tribes, the latter did not and pursued treaty-making as independent sovereign peoples. It is this fundamental difference of political identity that transcends into current treaty-making creating impasses. Treaty-making in the millennium era has yet to establish the "rough equality" that existed in what 51 Robert Williams Jr. calls the North American Encounter Era.1 After first contact and as settlement moved westward, the unwillingness to set or maintain2 precedents for peace-building gave way to colonial-settler populations dispossessing 1 Robert Wi l l i ams ' research into treaty-making from 1600-1800 between Europeans and indigenous peoples provides current negotiators with examples o f cultural group negotiations designed to shape a multicultural society where both indigenous peoples and the newcomers were equal: According to the countermythology that emerges from the Encounter era, North America during the seventeenth and eighteenth centuries was a unique, multicultural landscape o f different, conflicting groups. Understood in this sense, the North American Encounter era can be reimagined as an extended story o f cultural group negotiations in selected areas of intercultural cooperations. Adapting John Rawls; famous philosophical construct to the unique conditions that actually existed on the North American multicultural frontier, Indians and Europeans were in an original position o f a rough equality on the continent. A new kind of society was emerging from this unique cultural landscape, in which place, class, and social status were largely irrelevant. Both groups approached cultural group negotiations with each other with little knowledge o f what each side's future fortunes would be in this radically different and new type o f multicultural society. Each was similarly situated to propose the principles of justice that should govern the type o f society envisioned by their agreements. R. Wil l iams, Jr. Linking Arms Together: American Indian Treaty Visions of Law & Peace, 1600-1800 (New York : Oxford University Press, 1997) at 27. Martinez examines the "treaty relations" between indigenous peoples and the newcomers and states that at first contact, the newcomers recognized the sovereign status o f indigenous peoples: In establishing formal legal relationships with peoples overseas, the European parties were clearly aware that they were negotiating and entering into contractual relations with sovereign nations, with all the international legal implications o f that term during the period under consideration. This remains true independently of the predominance, nowadays, o f more restricted, State-promoted notions o f Indigenous "self-government", "autonomy", "nationhood" and "partnership" — i f only because the "legitimisation" o f their colonisation and trade interests made it imperative for European powers to recognise Indigenous nations as sovereign entities. Migue l Martinez, Spec. Rapp. Final Report on the Study of treaties, agreements and other constructive arrangements between States and indigenous populations, (1998) E /CN.4 /Sub .2 /AC. 4 /1998 /CPR. l at 23, paras. 108-109 [hereinafter Final Report on Study of treaties]. 2 Peace-making was made between the Europeans and the Iroquois at a time when the power balance between both peoples was mutually treated as equal. Treaties were made based on the Great Law o f Peace or Kaienerekowa and the principles o f the Two R o w Wampum or Kahswentha which embodied the ideal o f mutual respect for the cultural and political autonomy o f each society or the non-interference o f each other's internal affairs. See G . Alfred, Heeding the Voices of Our Ancestors (Toronto: Oxford University Press, 1995) at 140, 185. The two row wampum has also been described by John Borrows as a "First Nation/Crown relationship that is founded on peace, friendship, and respect, where each nation w i l l not interfere with the internal affairs o f the other." John Borrows, "Wampum at Niagra: The Royal Proclamation, Canadian Legal History, and Self-Government" in M . Asch , ed., Aboriginal and Treaty Rights in Canada: Essays on Law, Equality, and Respect for Difference. (Vancouver: U B C Press, 1997) at 164 [hereinafter "Wampum at Niagra"]. Patricia Monture-Angus describes the Two Row Wampum treaty as follows: One o f the most important o f our treaties is this day and age is the "gus-wen-qah." It is also referred to in english as the "Two-Row Wampum". It is the treaty which governs the relationship between the Six Nations Confederacy (respectively called the Haudenosaunee) and the Settler Nations...The gus-wen-qah is vastly complex but is visually quite simple. It is two purple rows o f shell imbedded in a sea o f white. One o f the two purple paths signifies the European sailing ship that came here. In that ship are a l l the European things -their laws, and institutions, and forms o f government. The other path is the Mohawk canoe and in it are all the Mohawk things - our laws, and institutions, and forms of government. For the entire length of that wampum, these two paths are separated by three white beads. Never do the two paths become one. They 52 indigenous peoples through colonial laws and conduct that would eventually ignore indigenous peoples' capacities to possess territorial sovereignty and title to their territories.3 Although modern attempts to achieve a mutually consensual relationship4 have been recommended to achieve this goal, critical examination must ascertain whether proposed relationships completes the newcomer's quest for conquest or not. If this is the end result of treaty-making, our future generations will have an even harder time unravelling our tangled past. The illegitimacy of doctrines that sustain the rule of law upon, which the constitution of Canada affords territorial integrity and sovereignty over indigenous peoples will be validated through indigenous consent. A relationship between nations should not be reflective of one nation being defeated by the other, but rather should achieve peace and political equality between international subjects. This chapter focuses on how to avoid conquest treaty-making. It suggests that reaching into the past and examining colonial-settler practices and laws can reveal various masks of dispossession and how dispossession continues to plague current treaty-making in Canada. It is remain an equal distance apart. A n d those three white beads represent "friendship, good minds, and everlasting peace."...It is these three things that Aboriginal People and the Settler Nations agreed to govern all o f their future relationships by.. .Returning to the "gus-wen-qah", and the paths that belong to each o f our nations, the descendants o f the Settler Nations have your laws and beliefs, your institutions. These things w i l l be kept on the Canadian path. Canadian people have their own way o f doing things and they have the right to be that way. It is parallel to the right to be a Mohawk woman (which is in fact the only right that I have) and be in that canoe on the other purple path with all the Mohawk laws, ways, language and traditions. Those paths do not become one. Nowhere have my people ever agreed to live governed by your laws or your way o f thinking. N o r have my people tried to change the way Canadians govern themselves. That is our respect for your rights. This is the place where my people wish to remain, l iv ing in respect o f the Two-Row Wampum Treaty. R C A P , The Familiar Face of Colonial Oppression: An Examination of Canadian Law and Judicial Decision Making (Research Report) by P. Monture-Angus (Ottawa: Supply and Services Canada, 1994) at chapter one [hereinafter The Familiar Face of Colonial Oppression]. 3 Dichotomizing territorial sovereignty and title to territory may be how European states organized themselves with respect to distribution o f property and rights therein or determining possession, however, this is not necessarily the case for indigenous peoples. This dominant construction wi l l be discussed below. Sovereign attributes discussed by commentators to be possessed by indigenous peoples include their territory, the capacity to enter into international agreements, and their specific forms of government. 4 Canada, Report on the Royal Commission on Aboriginal Peoples, vols. 1-5 (Ottawa: Supply and Services Canada, 1996). 53 my thesis that indigenous peoples can provide counter-realities to prevent the seeds of conquest and dispossession from flourishing in territories such as those of the Ned'u'ten. First, a brief description of doctrines of dispossession will be provided. By taking a doctrinal and jurisprudential approach, it will be demonstrated how these doctrines continue to shape treaty-making in Canada. Second, an exploration of challenges by indigenous peoples to these doctrines will be made at three levels: Ned'u'ten, national, and international. This exploration will evidence indigenous resistance to dispossession. Finally, by focusing on an international treaty framework for Canada, this chapter will propose principles for an alternative treaty framework that is not based on doctrines of dispossession, nor aimed to complete the colonizers' game of conquest. Central to the rejection of dispossession theories is the challenge to state legitimacy. It is this challenge that we now explore. 1. Challenging Canada's legitimacy as a State Our system o f leadership saw the Indigenous peoples through the first five hundred years after Columbus. If the state o f Canada wants to claim use o f the lands o f Indigenous peoples, it must recognize that the traditional governments o f Indigenous Peoples are the only governments which lend legitimacy to the state o f Canada. The International Court o f Justice was very clear in its decision concerning terra nullius and the role o f treaty-making with Indigenous peoples. Only agreements entered into with the Indigenous peoples o f the territory can give any legitimacy to the use and occupancy o f the lands. Canada must recognize the position o f the traditional governments that entered into treaty with the British Crown. To discount the legitimate governments o f Indigenous peoples is to discount Canada's own legitimacy. 5 -Sharon Venne-Doctrines of dispossesions6 such as the rights of conquest and discovery are 5 S. Venne, "Understanding Treaty 6: A n Indigenous Perspective" in Asch , supra note 2 at 206-207 [hereinafter "Understanding Treaty 6"]. 6 See E . Daes, Spec. Rapp. "Human Rights o f Indigenous Peoples: Indigenous people and their relationship to land". E C O S O C , C H R E/CN/Sub.2/1997/17, 20 June, 1997 [hereinafter "Human Rights o f Indigenous Peoples"]. In this preliminary working paper, theories that justify dispossession of indigenous peoples' lands by non-Indigenous sovereigns are called doctrines o f dispossession. Such doctrines include 1) non-recognition o f the indigenous relationship's to their lands; 2) the conversion of indigenous peoples to Christianity; 3) Eurocentric attitudes o f 54 rationalizations used by European states at contact to acquire sovereignty over indigenous lands. It is my thesis that such rationalizations are the fictions upon which current treaty talks in British Columbia are based. Critical inquiries must simultaneously be made regarding treaty policies, processes and substantive entitlements proposed by Canadian state governments that stem from these rationalizations. A place to start, is to challenge the statehood of Canada. By doing so, indigenous peoples located in what is now called British Columbia can 1) find real, practical but principled ways to make aspirations such as nation-to-nation treaty making just; and 2) simultaneously facilitate a decolonization regime that both Canadians and indigenous peoples such as the Ned'u'ten could use for legitimating future relations. One can challenge the legitimacy of the Canadian state by exposing colonial theories regarding Crown acquisition of sovereignty over indigenous peoples' traditional territories. Although colonial-settler populations have not felt it in their interest to challenge the validity of their Crown's declaration of sovereignty over indigenous .territories, until recently,7 it remains to be proven legally how Canada acquired such sovereignty.8 The practice by the Canadian civilization or civi l i ty; 4) economic agenda's o f states that drove attitudes, doctrines and policies developed to justify the taking o f lands from indigenous peoples; 5) rationalization; 6) conquest discovery; 7) terra nullius. A l s o see a comprehensive study on these doctrines in R C A P , Doctrines of Dispossession: A Critical Analysis of Four Rationales for the Denial or Extinguishment of Aboriginal Rights in Canada (Research Report) by R. Spaulding (Ottawa: Supply and Services Canada, 1995). 7 See C . B e l l and M . Asch , "Challenging Assumptions: The Impact o f Precedent in Aboriginal Rights Lit igation" in Asch , supra note 2 at 38. See also P. Bowles, "Cultural Renewal: First Nations and the Challenge to State Superiority" in B . Hodgins, S. Heard & J. M i l l o y , eds., Co-Existence? Studies In Ontario-First Nations Relations (Peterborough: Trent University, 1992) at 132. 8 Kent M c N e i l states: The assumption that along with sovereignty the Crown in settled Canada acquired title in fee simple to lands occupied by indigenous people has never been directly challenged in a Canadian court. N o r do any of the decided cases preclude such a challenge from being made. K . M c N e i l , Common Law Aboriginal Title (Oxford, Clarendon Press, 1989) at 289 [hereinafter Common Law Aboriginal Title]. Brian Slattery did not find it necessary to question how the Crown acquired territorial sovereignty from indigenous peoples until 1991. Accepting the assumption o f Crown sovereignty as being valid and legitimately acquired in the approach taken in Slattery's earlier writings on aboriginal rights in Canada: The question is this. When the Brit ish Crown claimed sovereignty over a territory and introduced new laws 55 judiciary and scholars has been to 1) accept the assertion of Canadian sovereignty over indigenous peoples and indigenous territories as being valid; 2) ascertain whether the colonial-settlers' law afforded indigenous peoples in non-ceded or conquered territories with common law aboriginal rights to land and governance at the time Crown sovereignty was acquired9 and 3) validate any Canadian rights acquired during the dispossession era.10 This is convenient. The and legal institutions, what impact did this have on the land rights held by aboriginal peoples? Were those rights nullified, or did they survive in a form cognizable by Crown courts? B . Slattery, "Ancestral Lands, A l i e n Laws: Judicial Perspectives on Aboriginal Ti t le" (Saskatoon: University o f Saskatchewan Native Law Centre, 1983) at 1 [hereinafter "Ancestral Lands"]. B y 1991 he makes the following argument: M y basic argument is that any approach which purports to rely exclusively on a body o f positive or conventional law is necessarily afflicted by arbitrariness or circularity. The only possible approach is one that draws to some extent on basic principles o f justice. In fact, so-called "positive law" cannot be severed from "Natural law," nor the latter from the former: they are both aspects o f the unitary phenomenon o f law. I w i l l argue that native American peoples held sovereign status and title to the territories they occupied at the time of European contact and that this fundamental fact transforms our understanding o f everything that followed. B . Slattery, "Aboriginal Sovereignty and Imperial Cla ims" (1991) 29 Osgoode Ha l l L . J. 681 at 690 [hereinafter "Aboriginal Sovereignty and Imperial Claims"] . 9 L ike Brian Slattery, Kent M c N e i l has broadened his focus on indigenous issues from a British colonial, common law and predominately proprietary perspective to looking at sources o f indigenous rights outside this framework. However, his attempt to bring the judiciary progressively in line with a more balanced discourse has not been realized injudicial pronouncements. Rather, the Supreme Court o f Canada has relied heavily on M c N e i l ' s earlier restrictive interpretation o f sources that could recognize indigenous rights. Such restrictive approaches leave aside the legitimacy o f Crown's claim to sovereignty over indigenous territories, self-determination, and the growing recognition o f indigenous peoples at international law as subjects: The focus o f this work is thus on the moment of acquisition of a new settlement by the Crown. The principal theme is the applicability o f English real property law to any indigenous people l iving their at the time. The approach taken is therefore doctrinal rather than jurisprudential. The morality of the colonization process, the justice of applying English law in this context, and related ethical issues are generally not discussed. The question sought to be answered is not whether the Crown should have respected indigenous occupation, but whether it was under a legal obligation to do so. Common Law Aboriginal Title, ibid at 5. See also K . M c N e i l , "The Decolonization o f Canada: M o v i n g Toward Recognition of Aboriginal Governments" (1994) 7 Western Legal History 113. 1 0 For example, Spaulding explicitly states that while trying to redress the dispossession indigenous peoples face today, in the interests o f justice, ethics, the rule o f law and equality, Canadians cannot be dispossessed in this process: It should be emphasized that this paper's critical project does not presume that renovations to the law that might overcome the defects identified here must restore absolute rights to Aboriginal peoples, and none to the descendants o f settlers. None o f the values just mentioned support such a stance, and few human rights are considered unsusceptible to justifiable limitation. In arguing, in particular, that the doctrines examined here do not justify denying Aboriginal land rights the status o f property in English law, or Aboriginal rights o f self-government that status o f internal sovereignty, this paper does not claim that non-Aboriginal people hold no valid deeds o f title from the Crown or that Canada's sovereignty is chimerical. Rather, i f the analysis advanced here is persuasive, colonial law must look elsewhere than these doctrines to justify entitlements coordinate with Aboriginal rights. 56 following inquiry into "doctrines of dispossession" avoids this approach and asks the question are such acquisitions valid? This approach also voices indigenous scholarship to de-center the claimed legitimacy of the colonial regime. Indigenous scholars question not just the juridical effect of debatable colonial acquisitions' practice, but the act of acquisition itself. Although non-Indigenous scholars may also support the invalidations of such doctrines, I have yet to see any of these scholars take the next step to publicly challenge the legitimacy of their own status as subjects of colonizing states nor the juridical effect that accompanies such fictions. This "theoretical justice" remains to be seen.11 The presumption that has underlying title to indigenous soil vested in the Canadian See Spaulding, supra note 6 at Part A . 1 1 Albert M e m m i provides an explanation as to why colonizers are unwill ing to decolonize themselves completely. M e m m i paints an accurate observation o f the "colonizer." I have extracted portions o f the 'colonizer portrait' he has painted and paraphrased the essence o f his work to try and understand the positions taken by colonial scholars regarding indigenous peoples: The colonizer knows he is both a privileged being and a usurper. M e m m i argues that the colonizer illegitimately grants himself privileges upon entering foreign lands by creating his own laws and rules to replace those o f the original inhabitants. The colonizer believes that the colonized w i l l be refused certain rights forever while reserving advantages strictly to himself. The colonizer who has a consciousness o f this identity eventually comes to a crossroads where he can neither reject this identity nor becomes one o f the colonized. W M e refusing to accept colonial ideologies, he continues to live with its actual relationships. He refuses to take the next step to a complete revolt, to be a turncoat. Rather M e m m i , describes this colonizer as both a revolutionary and an exploiter with no intention to becoming decolonized. He discovers that i f the colonized have justice on their side, and he approves and offers his assistance, his solidarity w i l l stop there; he is not one o f them and has no desire to be one. He vaguely foresees the day o f their liberation and the reconquest o f their rights, but does not seriously plan to share their existence, even i f they are freed...He invokes the end o f colonization, but refuses to conceive that this revolution can result in the overthrow o f his situation and himself. For it is too much to ask one's imagination to visualize one's own end, even i f it leads to his rebirth. M e m m i states that a colonizer, aware o f his illegitimate status, is politically ineffective. He refuses to demand the status quo of the colonial regime, but cannot identify his future with that o f the colonized. He remains at the crossroads while he legitimates colonization and manages the colonized. He endeavors to falsify history, rewrite laws and extinguish memories - anything to succeed in transforming his usurpation into legitimacy. The colonizer navigates between a faraway society which he wants to make his own and a present society which he rejects and thus keeps in the abstract. He does not address the racism that unites himself with the colonized. He is master and innocent in a new moral order that he founds, an order that cannot be questioned by others and certainly not by the colonized. He portrays a colonized according to his reconstruction. He begins to construct myths. A . Memmi , The Colonizer and the Colonized (Boston: Beacon Press, 1965) respectively at 9,20,22,23,32,40,41,52,68,70 and 76. 57 Crown is based on the domestic legitimization of doctrines of conquest and discovery, now deplored by the international world order and rejected by indigenous peoples. The questionable fact that Europeans legitimately acquired title to indigenous lands in North America at the time of contact; the exclusion of indigenous peoples as subjects from the international system; and the colonization of indigenous peoples provide sufficient reasons for indigenous peoples in British Columbia and other parts of Canada to challenge Canada's assertion of sovereignly over their territories. As indigenous discourses worldwide are gaining respect and support for self-determination, decolonization and subject status, it is imperative for indigenous peoples to understand why they have been excluded from history as sovereign peoples with sovereign territories. The histories, laws, customs, and traditions of indigenous peoples must be told to the world and be accepted by the colonizing state before any new relationships are created. In other words, any new relationship between indigenous peoples and colonizing states must be based on compliance with evolving international standards and must recognize indigenous peoples' survival as sovereign entities. Their right to decolonize completely and peacefully must also be recognized. Equally, to canvass indigenous scholarly writings also brings out the racialized nature of dispossession doctrines. This analysis is certainly lacking in colonial scholarship to date. 2. Colonial Acquisitions Theories ...The ancestors o f these people had been there for thousands o f years. They defended this territory against enemies to the north and south and, when Europeans arrived, debated how best to deal with them. However, the peoples o f the canyon were up against not only superior fire power, but also well-developed strategies o f colonialism worked out in the course o f Europe's worldwide advance into the non-European world. In detail colonialism took many forms, but it turned on common assumptions about the superiority o f European civil ization to the ways o f the non-European world and, for all the kindly intentions o f some o f those who 58 were caught up in it, depended on force to achieve its essential purpose: the transfer o f land from one people to another. This was true in Brit ish Columbia as anywhere else. Broadly, we are here, most o f us, because we have imposed ourselves. 1 2 -Cole Harris-Historically, in international law there are five ways to acquire territory of a foreign sovereign: discovery/occupation, cession, prescription, conquest and accretion.13 In modern international law, acquisition to title in lands are based on an act of effective occupation, conquest or cession.14 In contemporary international law, foreign territory can no longer be acquired by conquest through use by force but only through agreement with the original sovereign. However, it remains that territorial sovereignty over lands acquired by right of prescription, i f continuously and peacefully displayed to other states will be as good as title, and sufficient to mark boundaries between states and accord the state the exclusive right to do state activities.15 Brian Slattery observes that there is no universal consensus16 on how "original title" was 1 2 C . Harris, The Resettlement of British Columbia: Essays on Colonialism and Geographical Change (Vancouver: University o f Brit ish Columbia Press, 1997) at x i i . 1 3 Wi th respect to land territory, acquisition by occupation wi l l occur when 1) the territory belongs to no other state or is uninhabited and 2) the occupying state exercises effective control over such territory. Acquisi t ion by cession wi l l occur when territory is transferred from one state to another by a treaty o f cession or where the acquisition o f territory by a new state through the grant o f independence by a former colonial power. Acquisi t ion by prescription occurs when a state peacefully, over a period of time, occupies a certain territory with the knowledge of and without protest by the original sovereign. Acquisi t ion by conquest is achieved through war and subsequent annexation leaving the conqueror in possession o f the conquered's territory. Acquisi t ion through accretion occurs when natural forces enlarge a state's territory. See H . Kindred, International Law: Chiefly as Interpreted and Appl i ed in Canada, 4th. ed. (Canada: Emond Montgomery Publications Ltd. , 1987) at 360. Note these acquisition rules are descriptions or codifications o f colonial practice after unknown inhabited territories were "discovered" by European colonizing powers. 14 Island ofPalmas Case, Netherlands v. United States (1928), 2 R . I . A . A . 831. 15 Ibid. 1 6 Slattery states: The authorities disagree as to how an original title could be obtained. Some argue that the first European state to "discover" or explore American lands gained title. Others say that a symbolic act o f taking possession, such as the planting o f a cross, a flag, or royal insignia, was necessary. Stil l 59 obtained in North America. He states that territorial sovereignty could be acquired by aliens through the establishment of factual control and continuity of this factual dominion over a territory regardless of whether such territory was inhabited by peoples or not. Other scholars also accept these modes of territorial acquisition.17 According to such scholars, conquest through effective occupation is favoured over the right of discovery as the theory to explain how indigenous peoples became dispossessed. Alternative articulations of the same theory have been developed as well. 1 8 Canadian others insist that none of these methods was valid, that the incoming European power had to occupy the territories in an effective manner before sovereignty vested, as by establishing settlements, a governmental apparatus, or at least the elements of factual control. All of these methods - discovery, symbolic acts, and effective occupation - presuppose that North America was legally vacant at the relevant time, that there were no existing rights capable of impeding the smooth flow of incoming sovereignty... Where a territory is already held by a sovereign power, title to it can only be won by such methods as conquest, cession from the existing sovereign, or the continuous exercise of factual dominion for a period long enough to confer prescriptive title. "Aboriginal Sovereignty and Imperial Claims", supra note 8 at 685-686. 1 7 Kent McNeil states: For an assertion of sovereignty by the Crown to be effective internationally the criteria of the law of nations relating to acquisition of territory would have to be met. These criteria are derived mainly from the practice of States and the opinion of jurists of the period in question. At the dawn of the colonial era towards the end of the fifteenth century, there were no set rules for acquisition of territories which were not already within the jurisdiction of a recognized sovereign. The European powers sought to fortify shaky claims by whatever means they could, including assertions of discovery, symbolic acts of possession, papal bulls, the signing of treaties with rival States or local chiefs and princes, the establishment of settlements, and the outright conquest by force of arms. The juridical effect of these various acts is a matter of debate. In practical terms, however, might made right, so that a sovereign who succeeded in exercising sufficient degree of exclusive control was generally regarded as having acquired sovereignty. Common Law Aboriginal Title, supra note 8 at 110. 18Douglas Sanders states that european colonial powers were able to effectively assert suzerainty over tribes which decreased Indian autonomy and accompanying rights. Suzerain has been defined as a feudal lord; a sovereign or nation having some control over another nation that is internally autonomous. See K. Barber, ed., Canadian Oxford Dictionary, (Toronto: Oxford University Press, 1998) s.v. "suzerain". Suzerainty has been discussed by Hurst Hannum to be associated with a "vassal state" which is considered by international law as possessing some degree of international personality and sovereignty: A vassal state subject to the suzerainty of another state does have some international personality, but it is subject to greater control by the suzerain state than is the case for protected states. The status of vassals may be defined both by treaty and by rather vague customary and personal relations which originated within feudal law. "[A] distinctive element of the feudal suzerainty relationship is that the suzerain holds the source of the governmental authority of the vassal State whose ruler he grants the right to exercise the authority autonomously. International treaties of the suzerain are automatically binding on the vassal, although the 60 governments and judiciaries have not pronounced how the territorial sovereignty of indigenous peoples, in what is now Canada, have been acquired by Europeans.19 Without a judicial endorsement of acquisition theory in Canada, Sanders believes one has to look to state practice to answer this question. However, he states that acquisition theory can facilitate the determination of aboriginal and treaty rights in Canada, the extinguishment of these rights and internal self-government or territorial rights.20 vassal does retain some capacity for independent international action, for instance Bulgaria 's war against sovereign Serbia while Bulgaria was at least a nominal vassal o f Turkey. The term has most commonly been employed to describe various components o f the Ottoman empire, and other examples might include the Native States in India under British "paramountcy," Outer Mongol ia , and pre-1911 Tibet. H . Hannum, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights (Philadelphia: University o f Pennsylvania Press, 1996) at 17. 1 9 Sanders states: United States law has used the doctrine o f "discovery" to justify the takeover o f Indian people and territory. In the same way Australian law has used the concept o f "terra nullius," the legal myth that Australia had no previous owners. Today it is easy to see that both doctrines are racist. Both are inconsistent with modern international law. The United Nations Working Group on Indigenous Populations rejects both doctrines. Canadian law has never used either "discovery" or "terra nullius". Our legal tradition has been so self-confident, so arrogant, that it felt no need to have any legal theory justifying British colonialism. D . Sanders, "The Supreme Court o f Canada and the Legal and Poli t ical Struggle over Indigenous Rights" (1990) 22 Canadian Ethnic Studies 122 at 122. 20 Sanders states: Acquisi t ion theory, that is, the legal principles involved in the acquisition o f colonies, can be used either to establish that some aboriginal rights survive the acquisition o f the area as a colony or be used to limit or deny the survival o f aboriginal rights. Litigation in Australia has been preoccupied with using acquisition theory to establish some aboriginal rights. N o w that Canadian law accepts the survival o f aboriginal rights, acquisition theory could be used in this country to establish limitations on those rights. Canadian law currently has no acquisition theory, as such, that could explain which aboriginal rights survive and which do not. The only acquisition theory apparently around in Canadian law is "occupation and settlement", which would deny survival o f any aboriginal rights and therefore is in conflict with both Guerin and section 35. The logical analytical framework, consistent with Guerin, is for the courts to begin with the proposition that Indians and Inuit had a full range o f territorial, legal and political rights. European colonial powers first took control over Indian foreign relations by effectively asserting suzerainty over the tribes and blocking their relations with other European powers. Incrementally other rights were assumed by the European colonial power and Indian autonomy was further reduced. This historical approach abandons two alternative theories that are both now indefensible. The first, is that the Indian tribes had no legal order. The second is that "discovery" or the planting of a flag or some blind imperial enactment aimed at the new world had the effect o f completely ending Indian rights on a particular date. 61 Slattery, McNeil , and Sanders accept that Britain, and later Canada, established effective occupation of indigenous territories according to state practice. None of these colonial authorities present the argument that colonial sovereignty asserted by means of racialized doctrines such as prescription can survive the legitimacy of sovereign indigenous peoples. By limiting colonial discourse to only rights that survive Crown assertion of sovereignty, the writings of these colonial theoreticians should not be viewed as absolute. These conclusions should be measured against the voices of indigenous peoples and scholars who argue otherwise. While these colonial scholars argue that the domestic conduct of the state in question must be reviewed to ascertain the mode of acquisition and juridical effect, others state that international law regulated such conduct. The extent to which European states abided such modes is a matter of debate. However, indigenous peoples can be argue that acquisition of their territories in Canada has occurred outside the realm of international law. By examining European transgressions from international laws, it is my thesis that Canada has illegally, and without regard for justice, assumed sovereignty over my people and my peoples' traditional territory. Such an inquiry will also show the foundation on which Canada based its colonial acts over my people and demonstrate why my people can assert the fullest right to self-determination and complete decolonization. This inquiry will contribute to 'sovereign discourses' by indigenous peoples and provide a caution for indigenous peoples that prefer to Logical ly there should be no single rule for extinguishment o f aboriginal rights. There should be different rules for the taking o f different aboriginal rights. The taking o f Indian external sovereignty in what is now Canada was not accomplished by conquest, consent or explicit legislative act. What was explicit was the creation o f British and Canadian sovereignty, which necessarily reduced Indian and Inuit sovereignty. There was no reason why the implicit taking o f Indian external sovereignty should mean that internal self-government or territorial rights should be able to be taken in the same way. These are the questions that need to be canvassed in the current aboriginal title cases. D . Sanders, "Pre-existing Rights: The Aboriginal People o f Canada: s.25 and s. 35" in G . Beaudin & E . Ratushny, eds., The Canadian Charter o f Rights and Freedoms, 2nd. ed. (Toronto: Carswell , 1989) 707 at 732 [hereinafter "Pre-existing Rights"]. 62 place pragmatism ahead of principles. History has to be retold; the state has to recognize its illegitimacy; and a new relationship must be constructed on the unconditional legitimacy of indigenous peoples' governing systems and rights to their territories. In other words, indigenous peoples are not just mere burdens on the underlying title of the state. Peace and justice can be achieved when two nations can live in harmony and co-existence with the growing world order. Indigenous peoples assert that they have always been subjects under international law, even though their contributions and membership into the family of nations was denied or rationalized to not exist by colonizing powers.21 3. Masks of Dispossession a. The right of conquest (where territory is inhabited) Events on the ground, not theories o f law, no matter how carefully crafted, have often been the true determinants o f Indian rights. 2 2 -Thomas Berger-2 1 Martinez sets out subject status at international law: ...both in theory and in practice - and during the whole era o f European expansion - international law was taken to be universal and its norms were considered to be applicable to the whole world. The bone o f contention was determining who were subjects o f such a universal system of norms. Two conflicting replies were offered to that question: (i) the L a w o f Nations were restricted to the European "actors" wherever they operated; this thesis was based on aspirations to European world hegemony and excluded from its scope any non-Christian or "uncivi l ized" political entity, and (ii) each o f the independent political entities in the world would be declared a potential subject o f that universal international law, and would only achieve full status as such when it established relations with the "authentic" subjects that already existed (hence the importance acquired by the so-called "theory o f recognition" both in this discipline and in its diplomatic law branch. Obviously, in practice it was impossible for either o f these two variants to establish itself. In reality a wide variety o f situations obtained. ...concerning the situation in English-speaking North America...the practice followed by States, as a source o f customary international law, contradicts "conventional wisdom" which denies indigenous nations legal capacity as subjects o f international law. Quite the contrary: from the very beginnings o f that relationship, the indigenous nations were considered as capable of preserving peaceful and warlike relations and o f entering into treaties with the European Powers. M . Martinez, Spec. Rapp., Second Progress Report on the Study of treaties, agreements and other constructive arrangements between States and indigenous populations, (1995) E/CN.4/Sub.2/1995/27 [hereinafter Second Progress Report] at paras. 166-170. 2 2 T. Berger, Village Journey: The Report of the Alaska Native Review Commission (New York : H i l l and Wang, 1985) at 124. 63 In modern and contemporary international law, the right of conquest23, is no longer an acceptable way to acquire territory of a foreign sovereign, though traditional international law certainly recognized the right of conquest. Conquest was initially an absolute and unrestricted right to acquire territory by force of one sovereign over another and was not qualified by standards of morality or justice which would assess whether the means of acquiring title by conquest were lawful or not. In such circumstances, the conquered sovereign and its territories would be subjugated to the conqueror's sovereign unilateral will , powers and laws.2 4 Within the context of this thesis, this absolute right of conquest could not be invoked against the Ned'u'ten by the Canadian Crown today. It would also not apply at the time of contact (1822) or even at the date of sovereignty's assertion in British Columbia (1846). Ned'u'ten territories have never been acquired by the use of an unregulated force by foreign entities. A conqueror could not claim title by conquest over foreign territories i f no force occurred.25 The right o f conquest has been defined as: ...the right o f the victor, in virtue of military victory or conquest, to sovereignty over the conquered territory and its inhabitants.. .The only requirement o f fact to be fulfilled before the title by conquest can be established is that the territory must be in the effective possession o f the conqueror. Legally, this is presumed to have occurred when the conquest o f military occupation is followed either by the complete extinction o f the political existence of the conquered state; or by the cession o f the conquered territory through a treaty o f peace (when the defeated state remains in existence to make it); or by the practical acquiescence of the defeated state in the conquest, as would be evidenced by its failure to prolong war for the purpose of recovering it... S. Korman, The Right of Conquest: The Acquisition of Territory by Force in International Law and Practice (Oxford, Claredon Press, 1996) at p. 9. 2 4 Korman cites Grotius, De Jure Belli ac Pads, bk. Ill, ch. 7 sect. 1 for an explanation o f the absolute power granted to a victor o f conquest: It was Grotius' view that the rights o f the conqueror over the conquered were, in his own time (the early seventeenth century), absolute and unlimited. Hence, he claims, the conqueror was at that time permitted by the law o f nations to k i l l or enslave any person captured on enemy territory, including women and children, and to destroy and pillage all private property belonging to inhabitants. Ibid, at 30. it Korman makes this point: Thus the first essential condition for establishing a title by conquest was the existence o f a state o f 64 Canada asserts sovereignty and title to indigenous lands in British Columbia in 1846 through the Treaty of Oregon, an agreement between foreign entities. This should not include or imply that such assertions are between Canada and indigenous peoples such as the Ned'u'ten. The right of conquest was acceptable in international law until 1919 when the League of Nations and its successor the United Nations rendered it in principle, no longer acceptable.26 Substantial contact with the Ned'u'ten people by Europeans did not occur until the late 1800's, and no force or war occurred at the time the Crown asserted sovereignty. So at the time the Crown asserted sovereignty in British Columbia, its underlying title to Ned'u'ten territories could not be founded on the right of conquest as accepted by international law. In the Enlightenment Era, the unrestricted right of conquest grew unpopular and the use of force to acquire foreign territory began to be regulated by state practice and developing international norms of justice and humanity. Use of force now had to be just27 and the victorious conqueror could no longer absolutely subsume the conquered into its sovereign domain.28 To war: 'Unless preceded by war, the unilateral annexation o f the territory o f another State without contractual consent is i l legal . ' The isolated snatching o f territory by force, in the absence o f war, was not a recognized basis o f title. Ibid, at 109. 2 6 The first and second world wars have rendered the right o f conquest obsolete. After the first world war, the League o f Nations sanctioned the annexation of territories by force and coupled with the second world war, paved the way for the U . N . Charter to denounce conquest as stated in 2(4) o f the Charter which "prohibits the threat or use o f force against the territorial integrity of. .any state" .Charter of United Nations, 26 June 1945, Can. T. S. 1945 N o . 7; See also Article 52 o f the Vienna Law Convention on the Law o f Treaties which declares "any treaties procured by the threat or use o f force in violations o f international law is void" . From 1919, onward, peaceful settlement o f territories and sovereignty would be based on the right to self-determination. 2 7 See writings o f Vattel, The Law of Nations bk. I l l , Grotius Mare Liberum and De Jure Belli ac Pacis and Victor ia found in J . Brown Scott, The Spanish Origin of International law Francisco de Victoria and his Law of Nations (Oxford: Claredon Press, 1934) and R. Wil l iams, Jr., The American Indian in Western Legal Thought: The Discourses of Conquest (Oxford: Oxford University Press, 1990) [hereinafter The American Indian]. 2 8 Korman cites Vattel: Whi le war might result in a transfer o f sovereignty to the conqueror, the property o f individuals was to be left undisturbed: In the conquests o f ancient times even individuals lost their lands...But at present war is less dreadful in its consequences to the subject: matters are conducted with more humanity: one sovereign makes war against another sovereign, and not against the unarmed citizens. 65 preclude the duration of war, treaties became a necessary requirement to peacefully facilitate cession of territory from the conquered to the conqueror. In such treaties, while the conquering state gained sovereignty over the conquered territory, it did not immediately gain jurisdiction over the inhabitants whose laws and ways of living were kept intact, subject to the future conduct of the new sovereign.29 In theory, treaties had to be based on the consent of the conquered before the conqueror could claim its sovereignty by the right of conquest. So we see how the absolute right of conquest and the territorial sovereignty acquired under this mode was no longer validated in international law with the increase in morality in human rights. It can be argued that states who acquired territories in indigenous North America based on this "regulated right of conquest" through war or treaty, leave indigenous peoples at present in a strong position to assert the right to self-determination and have their traditional territories recognized by subjects of the international order. This is because 1) such treaties were not necessarily understood as ceding sovereignty or title;30 and 2) contemporary international law now holds any acquisition of foreign The conqueror seizes on the possessions o f the state, the public property, while private individuals are permitted to retain theirs. They suffer indirectly by the war; and the conquest only subjects to a new master. Korman, supra note 23 at 31. 2 9 See the relationship established between Britain and its conquest over France's claims to the new world in the Treaty o f Paris, 1763 where the inhabitants originally subjects o f the state o f France were able to eventually retain their liberties such as religion, language, c iv i l code over c iv i l law for property and c iv i l rights as codified in the Quebec Act, 1774, while English common law governed criminal and public law. See also Britains ' treatment o f the inhabitants o f Scotland, whereby the latter were able to hold office, exercise local government and practice their own religion. But see Britain 's relationship with Ireland where the inhabitants were to be assimilated into the sovereign o f the conqueror. M . Hechter, Internal Colonialism: The Celtic Fringe in British National Development, 15-36-1966 (Berkeley: University o f California Press, 1975). 3 0 Venne observes the purpose for Cree treaty-making in the latter 19th century: Sharing the land through treaty-making was a known process. The treaty-making process with the Bri t ish Crown and others followed the Cree laws. The way to access the territories o f the Cree, Assiniboine, Saulteau, and Dene was to enter into a treaty. "Understanding Treaty 6" in Asch , supra note 2 at 184. See "Wampum at Niagara" in Asch , supra note 2 at 169 where John Borrows states that in the context o f treaty-making between the Anishnabe and Britain, his people did not recognize the sovereignty o f Britain: "[fjhe promises made at Niagara, and their solemnization in proclamation and treaty, demonstrate that there was from the outset considerable doubt about the Crown's assertion o f sovereignty and legislative power over Aboriginal rights." See also J. Henderson, "First Nations Legal Inheritances in Canada: The 66 territory through the use of force (ie/ imposed treaties as opposed to freely given consent) as illegal. The Ned'u'ten have never given consent, to have their traditional territories governed by their clan systems, be subsumed into the Canadian Crown, by conquest nor cession through treaty or purchase. The Ned'u'ten have never had their traditional territories annexed to the Canadian Crown. In other words, the Ned'u'ten have never gone to war with the Crown and have yet to surrender their traditional territories to any foreign sovereign. So how can Canada legitimately assert sovereignty over Ned'u'ten traditional territories and categorize the Ned'u'ten's interest in their homelands as only those lands under federal jurisdiction: "s.91(24) reserve lands or aboriginal title lands"?31 Furthermore, how can Canada through its import of English legal Mikmaq M o d e l " (1995) M a n . L . J . 1 [hereinafter "First Nations Legal Inheritances"]; " M i k m a w Tenure in Atlantic Canada" (1995) 18 Dalhousie L . J . 195 [hereinafter " M i k m a w Tenure"]. 3 1 Martinez offers an explanation for the theory behind the right o f conquest in the context o f Britain taking possession o f Australia around the 1830's and 1840's: ...but although this theory could have explained how the Brit ish had gained sovereignty over the continent, it did not justify the total dispossession o f the original inhabitants, since according to legal doctrine at that time (e.g. Vattel) conquest implied taking possession of the property of the conquered State, but not o f that o f its individual inhabitants. It should be noted that although international law at this time did not recognize indigenous peoples as subjects, had it done so, the juridical effect o f conquest leaving the individual inhabitants with their property subject to the wi l l o f the conquering sovereign would be suspect as indigenous peoples would have contributed principles o f peace-making as practiced in their realms of diplomacy to international discourse and would have most likely 'enlightened' Europeans by questioning the justness of territorial acquisitions o f lands already inhabited by peoples. The soundness o f any juridical effect stemming from the territorial acquisitions by foreign sovereigns over indigenous peoples w i l l be explored below. Second Progress Report, supra note 21 at para. 208. See also J. Borrows, "Because it does not make sense: A case comment on Delgamuukw v. Brit ish Columbia" [forthcoming in 1999],[hereinafter "Because it does not make sense"], where he states that the Crown is able to restrict aboriginal title by treating its status as being the same interest that courts recognize with respect to reserve lands: While the Court is careful to note that aboriginal title is not "restricted to those uses which are elements o f a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right, the Court found, quoting from R. v. Guerin, that "the same legal principles governed the aboriginal interest in reserve lands and lands held pursuant to aboriginal title." Aboriginal people w i l l find little solace in the statement that "the Indian interest in the lands is the same in both cases." The similarity o f reserve and title land restricts aboriginal title because "the nature o f the Indian interest in reserve land" is held by Her Majesty for the use and benefit o f the respective bands for which they are set apart..." While the Court focuses on the similarity in title and reserves to demonstrate the "breadth" of uses for "any...purposes for the general welfare o f the band", its reasons ignore the fact that this similarity removes the underlying title from the land's original inhabitants, and vests this title interest in another. 67 traditions, categorize the remaining portions of Ned'u'ten territory as 'settled territories'.32 The answers to this foundational question lies in challenging the statehood of Canada, its sovereign presumptions, and the justification for the colonization of Ned'u'ten people by Canada. ^Common Law Aboriginal Title, supra note 8 at 267 where M c N e i l states that aboriginal title can only exist in 'settled territories' and therefore it is necessary to classify regions in Canada as being conquered, ceded or settled: Before discussing indigenous land rights in Canada, it is essential to distinguish the regions to which the Crown has original territorial title by settlement from those acquired derivatively by conquest and cession from France. Settled parts consist o f Newfoundland (including Labrador), Rupert's Land (granted to the Hudson's Bay Company by Royal Charter in 1670), the old North-Western Territory, the Canadian Arct ic Islands, and Brit ish Columbia. Douglas Sanders questions the "settled territories "application to B . C . as being inconsistent with treaty policy elsewhere in the country: The distinctions between settled colonies and colonies acquired by cession or conquest was described by Blackstone in his Commentaries on the Laws o f England. It seemed that in settled colonies there was no pre-existing legal order to be recognized. The crudest formulation was that such an area was "terra nullius", the land o f no-one, even it was occupied by indigenous peoples, as in Australia. The indigenous population was seen as having no legal order. This is a formalized version o f the recurrent depiction o f indigenous peoples as "wandering savages", a depiction used to deny the possibility o f legal rights... A strict application o f the idea of a "settled colony" denied Aboriginal rights. Clearly, then, this did not explain colonial practice in Canada, where treaties were negotiated in major parts o f the country. D . Sanders, "Politics and Law - Land Claims in Brit ish Columbia" (15 Augus t , 1995) on file with author. In response to a recent article by P. M c H u g h , "The Common-Law Status of Colonies and Aboriginal "Rights": H o w Lawyers and Historians Treat the Past" (1998) 611 Sask. L . R . 393, Sanders has reformulated his position: ...What this suggests, then, is that Canada is not odd. M y analysis that Canada has no acquisition theory would be met by an analysis that Canada, like the U . S . and N e w Zealand, came to be considered to be a "settled colony", but that the "settled colony" analysis was not applied in the late 18th and part o f the 19th century to deny indigenous rights. I think there is some tradition o f regarding Canada as a "settled" colony -which I used to think made no sense because o f the treaties and the Royal Proclamation. What I think M c H u g h would say was that Canada came to be treated as a settled colony with the birthright kind o f analysis - British law automatically applied (a clear result o f the settled colony analysis) - but other factors determined the recognition or non-recognition o f indigenous rights. So what we wind up with is not "no acquisition theory" [as I had been arguing], but an "acquisition theory" to deal with colonial issues o f the relationship o f settlers/Crown/imperial parliament and no acquisition [or other] theory on the survival o f indigenous rights into the colonial situation. (Pers. comm.) The point I am trying to illustrate is that indigenous peoples such as the Ned'u ' ten have 'original title' or 'Ned'u ' ten title' and sovereignty over these territories. Constituting Ned'u ' ten territories as settled territories (regardless o f who it is in relation to) presumes 1) the Crowns' acquisition o f Ned'u ' ten territory is effected thereby leaving the juridical effect that the Ned'u ' ten are only capable of possessing 'aboriginal title' over their non-reserve designated territory and 2) that as settlers arrived, there was no suitable law (ie/ Ned'u ' ten law) for settlers. I do agree with M c H u g h , however, that designating or categorizing indigenous territories as conquered, ceded or settled is a "red herring and only relevant to the extent that the scholarship has made it so". James [sakej] Younblood Henderson challenges the assumption o f 'settled colonies': It cannot be assumed that Brit ish law automatically applies to North America because the Indian had no law or property systems. Such an assumption is built on supremacist colonial theory. " M i k m a w Tenure", supra note 30 at 291. 68 b. right of prescription (where territory is inhabited)33 In case o f conquest the only test as to the title o f the conqueror is found in the course o f dealing which he himself has prescribed. When he adopts a system that w i l l ripen into law he settles the principle on which the conquered are to be treated. 3 4 States have been able to work their way around the requirement that force is necessary to acquire title by conquest by fashioning a new title based on the right of prescription. In other words, foreign territories illegally held and possessed by another foreign sovereign would be sanctioned by state practice if it can be established that " i f the law is violated successfully and the fruits of illegality prove enduring, the change is presumed to give rise to new rights of sovereignty which cannot be questioned and which, by the principle of prescription, must not in future be tampered with." 3 5 By ignoring the injustice of the right of prescription from an indigenous, human rights, or decolonizing perspective, it has been argued that Canada acquired Ned'u'ten territories through the right of prescription as practiced by Britain in the 19th century.36 In Reference re Secession 3 3 Martinez defines prescription: .. .in order to exercise a right o f prescription, a conquering state must take continuous possession o f conquered lands for a long period of time and with the general acquiescence o f the conquered to the right. Second Progress Report, supra note 21 at para. 209. 3 4 See the Supreme Court o f Canada decision of St. Catherine's Milling and Lumber Co. v. The Queen (1887) 13 S.C.R. 577 at 580 where counsel for the plaintiff company argued that prescription applies to territories designated as conquered [hereinafter St. Catherine's Milling cited to S .C.R. ] . 3 5 Korman, supra note 23 at 17. 3 6 Sanders believes so, and writes: International law accepted colonialism as valid and gave no force to treaties with indigenous peoples. Native tribes were outside the exclusive club of nation states. Today, colonialism is a violation o f international law and certain non-state peoples are recognized as having the right to self-determination. The International Court o f Justice's ruling on the Western Sahara in 1975 destroyed most o f the theories which had justified the European takeover o f populated lands. We are left without an international law justification for the British acquisition of Canada, other than the consent of the tribes expressed in treaties or in other forms of acquiescence. "Pre-existing Rights", supra note 20 at 736. 69 of Quebec , the Supreme Court of Canada held that through the right of prescription and acquiescence, Canadian law recognizes two modes of acquiring territorial sovereignty or possession regardless whether the acquisition was legal or not, if internationally, such acquisition is recognized by state actors. This pronouncement is made in the context of the Court's discussion on the principle of effectivity and whether the international community would recognize an independent Quebec born from unilateral secession. Implicitly, indigenous peoples should be able to read between the lines and see the inherent contradiction or double standard this would create in the indigenous context. It therefore, cannot go unnoticed where indigenous peoples are concerned: The principle o f effectivity operates very differently. It proclaims that an illegal act may eventually acquire legal status if, as a matter o f empirical fact, it is recognized on the international plane. Our law has long recognized that through a combination of acquiescence and prescription, an illegal act may at some point be accorded some form of legal status. In the law of property, for example, it is well-known that a squatter on land may ultimately become the owner i f the true owner sleeps on his or her right to repossess the land. In this way, a change in the factual circumstances may subsequently be reflected in a change in legal status. It is, however, quite another matter to suggest that a subsequent condonation o f an initially illegal act retroactively creates a legal right to engage in the act in the first place. The broader contention is not supported by the international principle o f effectivity or otherwise and must be rejected. 3 8 According to this articulation by the Supreme Court of Canada and putting Quebec's story aside for the moment, it could be argued that since Canada is recognized internationally, its state legitimacy and acquisition of requisite sovereignty, even if illegally acquired from indigenous peoples, will eventually be made legal. This result would require that the indigenous territory in question be categorized as "conquered", like Quebec. The Court's interpretation of prescription would therefore hold because there is arguably a change in factual circumstances (of who owns the territory in question), that would change the illegal status of Canada's undisputed Reference re Secession of Quebec (20 August, 1998) S.C.C. Fi le N o . 25506 [hereinafter Secession Reference]. 38 Ibid, at para. 146. 70 acquisition. It is interesting that this statement by the Court is the last word in the Secession Reference, which is argued to be the most important judgment in Canadian history. It is my submission that prescription theory is challengeable because it presumes that Indigenous territories are conquered. It was not until the late 19th century that colonial-settler populations came in contact with the Ned'u'ten, and certainly not enough time had passed to warrant Canadian control over Ned'u'ten territory. Certainly, the "settler's precarious presence" could not oust Ned'u'ten sovereignty.39 To apply this theory today would run contrary to the contemporary international law requirement to obtain consent from the Ned'u'ten, through agreement. Canada's conduct to establish a treaty process in British Columbia today evidences this inconsistency. Further, since Ned'u'ten territory is not conquered territory, prescription could not legitimate Canadian Crown sovereignty therein. The doctrine of prescription needs fuller exploration by indigenous peoples. Such an inquiry can ascertain whether or not it was a right recognizable at international law at the time of contact in the 15th century, or whether it remains to be a conveniently and self-serving fashioned right by colonizing powers who came upon peoples that held systems or principles of sharing or peace-making in their territories as customary to their respective governing orders. In other words, colonial powers that took sharing to be acquiescence to colonial settlement and thereby acquiescence to the Euro-Canadian sovereignty assertions over indigenous peoples would be tantamount to an absolute right of conquest, a mode of territorial acquisition no longer 3 9 Spaulding, supra note 6 at Part 2.3.1 where he cites H . Fosters's "Forgotten Arguments: Aboriginal Title and Sovereignty in Canada Jurisdiction Ac t Cases." (1992) 21 Man .L . J . 343. Fosters argues that in 1818, the Crown had a "precarious presence" in Indian Territories that did not oust exclusive Aboriginal jurisdiction over Aboriginal persons and non-British subjects. 71 sanctioned in international law. If this is the case, then the right of prescription as it may be argued by colonial-settler states including Canada to apply to indigenous peoples in North America, should be repudiated and made illegal, like its predecessor: conquest. The right of prescription has been used against indigenous peoples as a mode of acquiring Canadian sovereignty over non-ceded lands or non-conquered lands in Canada. The juridical effect of prescription leaves indigenous peoples in the same position as other dispossession doctrines, the foreign crown has underlying title to indigenous territory and maintains its claims to sovereignty supreme and intact. Many indigenous scholars agree that, with conquest debunked, the discovery right, should be the primary legal fiction to dismantle. c. right of discovery In the 1820s and 1830s, Chie f Justice Marshall undertook to describe the nature o f United States sovereignty, Indian self-government, and Indian title. Marshall accepted the legitimacy o f Native sovereignty, Native institutions, and Native title, and he wove them into the American polity. Ever since then, Marshall 's analysis o f the question has served as the basis for the assertion of Native claims, not only in the United States, but throughout the Western wor ld . 4 0 -Thomas Berger -The right of discovery has undergone many derivative forms. While many Canadian scholars may disagree41 with "discovery" as being the legal theory for Crown sovereignty assertion over indigenous territories in Canada, it is my thesis that the doctrine of discovery is the leading doctrine that set in motion doctrines of dispossession. By the time settlement reached the territory of the Ned'u'ten, the juridical effect of discovery was the same as if the territory was uninhabited: i.e. the Crown has underlying title to the soil; sovereignty over indigenous peoples; 4 0 Berger, supra note 22 at 121. 4 1 See B . Slattery, Land Rights of Indigenous Canadian Peoples, as Affected by the Crown's Acquisition of Their Territories,( Doctoral Dissertation, Faculty of Law, Oxford University 1979) reprinted by the University of Saskatchewan Native Law Centre, 1979; "Ancestral Lands", supra note 8 at 17-38. See also Common Law Aboriginal Title, supra note 8 at 244-264. 72 and indigenous peoples are forced to abide by the "distribution preference of the discovery principle."4 2 Some authors may organize dispossession theory around the doctrine of terra nullius/3 Although I agree that this doctrine was used against the Ned'u'ten, it is not the doctrine that justifies Canada's dominance over indigenous peoples. For example, now that international and common law courts have deemed terra nullius illegal and states acknowledge that indigenous peoples are the original inhabitants of their territories, rejecting the terra nullius doctrine alone will not prevent states from continuing the dispossession of indigenous peoples' territories. For this reason, I believe the right of discovery must be discarded in order for indigenous peoples to decolonize. The doctrine of terra nullius will be discussed in tandem with the right of discovery as I examine Ned'u'ten territories.44 The following indigenous scholars have centered their 4 2 Spaulding refers to the "inalienability" o f the Indian title except to the "discover", as the distribution preference. 4 3 Spaulding has taken this approach in his research report to the Royal Commission on Aboriginal Peoples. He argues that the terra nullius doctrine possesses an 'unacceptable currency' in Canadian law and is the initial principle used by colonizing powers that have then tailored it to meet their immediate needs in relations to indigenous peoples. He lists the following effects as derived from this principle: ...in particular, that the "organized society" requirement for proof o f Aboriginal rights, the doctrine o f peaceful settlement, and the ancillary rationales under which Aboriginal land rights have been treated as "usufructuary, and Aboriginal rights confined to uses notionally frozen at the moment o f contact with settler societies, al l owe an unacceptable debt to this discredited theory. While Spaulding has taken the doctrine o f terra nullius and demonstrated its use in international law; its enlarged and distorted state formulations; and the juridical effects that stem from it, I have taken the approach that it is the right o f discovery that was consistently applied in all indigenous territories. I do agree with Spaulding's descriptions o f terra nullius, I just do not agree that it is the initial or foundational principle o f dispossession. Regardless o f these approaches, terra nullius is a doctrine o f dispossession that must be rejected. See Part 4 o f Spaulding, supra note 6 where he discusses terra nullius. 4 4 For example, the right o f discovery coupled with terra nullius fictions that Ned 'u ' ten territories were vacant and unknown (not literally, but indigenous peoples were racialized and categorized to not exist) permitted European and American sovereigns to make treaties with each other (such as the Treaty o f Oregon) to regulate their self-proclaimed rights to the territories in question as o f 1846, and whereby Canada could settle and occupy these territories north o f the 49th parallel without the informed consent o f the indigenous peoples therein and worry-free from the reach of the American's manifest destiny to do the same. In other words, most colonial theoreticians that attempt to concentrate their understanding of history between indigenous-newcomer relations on isolated or discrete inquiries into colonial practices and conduct o f Europeans to ascertain possible defects in acquisition, fail to assess the 73 scholarship around the right of discovery as being the foundational doctrine of indigenous dispossessions. Patricia Monture-Angus contributes to indigenous discourses on the right of discovery by showing how the constitution of Canada as a colonizing tool for indigenous peoples is premised on the right of discovery: It may seem crazy to some people to try to locate an Aboriginal vision or image in Canada's constitution. What I am really trying to accomplish on this guided journey through the constitution of Canada is to discover the ways in which and the extent to which the constitution is a tool o f the colonization o f Aboriginal Peoples. 'Pr imit ive, ' 'sub-human,' 'uncivi l ized, ' 'savage,' 'backwards,' 'without law or government' and so on is still the language of the courts in Canada when discussing Aboriginal rights and claims. Section 91(24) is part o f the problem as it reinforces the subordinate status and inequality accorded Aboriginal nations. Section 91(24) creates that possibility. The first step that Aboriginal litigants are forced to make is to prove to the court that they exist and then show that they lived in "organized societies". The philosophical underpinnings o f section 91(24) rest on the European doctrine o f discovery. Aboriginal peoples were less than human because the territory "discovered" was then terra nullius (empty lands). The European state could then claim title by virtue o f their discovery. Section 91(24), as long as it stands as part o f Canadian constitutional law, entrenches an ethnocentric (at best) view o f history o f this country. A l l o f these historical myths that must be corrected i f we are to proceed as a country, from here, in a good way. A n d it must be considered who clings to these myths. It is difficult being colonized, but it is more difficult to be a decolonized colonizer. 4 5 Robert Williams, Jr., a native American scholar stresses the spiral inter-connectedness of such doctrines and that through the doctrine of discovery, the discovering European nation, maintains an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest: . . .Marshall 's opinion essentially collapses the distinctions between modes o f acquisition o f territory under the doctrine o f discovery. I take his reasoning in Johnson to be that once "discovered" by a European nation-state, the indigenously-occupied country came under its sovereignty, and vested in it inchoate rights to title. Marshall 's analysis is essentially indifferent as to how those inchoate rights might be perfected; by purchase, conquest, or abandonment; no matter, "the rights thus acquired being exclusive," in Marshall 's culminating effects o f the dispossession doctrines as a whole with respect to indigenous peoples nor its historical racialized construction. Such scholars must put their national allegiance to their state aside when delving into the murky waters o f dispossession doctrines. It does not matter whether colonial practices are signatured as Canadian, American or European for at the time o f contact, these colonial practices were owned by aliens, foreigners and strangers to indigenous peoples. 4 5 P. Monture-Angus, Thunder In My Soul: A Mohawk Woman Speaks (Halifax: Fernwood Publishing, 1995) at 164. I 74 words, "no other power could interpose between them". Other English-derived settler state courts, and continental writers on international law, have drawn more careful distinctions between modes o f acquisition and rights acquired under the doctrine. Yet , despite the distinctions, the outcome historically has been the same. Indigenous peoples around the world have been dispossessed o f their territories whenever the doctrine and its varying permutations have been applied. 4 6 John Borrows, inquires into the Crown's sovereignty assertion over indigenous peoples in his forthcoming case comment on Delgamuukw v. B. C. He traces "sovereignty dispossession" back to its 'discovery roots' and states: The keywords which unlock sovereignty's power are ancient. Practitioners o f its craft can summon a tradition that reaches deep into the past. Its channeling flows from classical times through the renaissance. Poli t ical and legal ascendancy are conveyed to those who can conjure fictions that vindicate their claims o f authority. In the thirteenth century Pope Innocent IV invoked sovereignty's oath in the middle-east during the Crusades... In the fourteenth century, Papal Bulls called up these same covenants as peoples sailed out from Portugal and Spain to cast their words on Afr ica and North America. Such assertions enabled Iberia's Kings and Queens to "discover and make conquests o f lands beyond the then-known boundaries o f western Christendom." To facilitate these purposes, in 1513 another manisfestation o f sovereignty's power was revealed in the Requerimiento, to be read aloud to peoples over which Spain intended to exercise control... Documents such as the Requerimiento, numerous Papal Bul ls , and other proclamations mingled in a potent brew to create a cant o f conquest justifying assertions o f sovereignty to the other's lands. The Brit ish and Americans in the seventeenth, eighteenth and nineteenth centuries chanted these same rites to bring codes forward into contemporary jurisprudence. Imperial courts participated too... Sovereignty's incantation is like magic. Its mantra: "Aboriginal title is a burden on the Crown's underlying title". This mere assertion is said to displace previous Indigenous titles by making them subject to, and a burden on, another's higher legal claims. Contemporary Canadian jurisprudence has been susceptible to this artifice. In Delgamuukw v. B.C. the Supreme Court o f Canada declared that the Crown gained "underlying title" when "it asserted sovereignty over the land in question." This annoucement illustrates that, as in past centuries, sovereignty once again heralds the diminishment o f another's possessions. In this respect, the decision echos ancient discourses o f conquest. 4 7 Sharon Venne also examines the origins of the discovery right and its contribution to the development of international standards drawn from the Eurocentric world view regarding Indigenous Peoples: Spanish and other European exploration led to the development o f the doctrine o f discovery and its acceptance in international law... the right o f Indigenous Peoples in the Americas to continue determining their way o f life was denied though acceptance of the doctrine o f discovery, and this denial persists to the 4 6 R. Wil l iams, Jr., "Sovereignty, Racism, Human Rights: Indian Self-Determination and the Postmodern Wor ld Legal System" (1995) 2 Review o f Constitutional Studies 146 at 163, n. 34 [hereinafter "Sovereignty, Racism Human Rights"]. 4 7 "Because it does not make sense", supra note 31 (paragraphs omitted). 75 present day... Columbus arrived on the shores o f the Indigenous Amer ica in 1492. Columbus came to Indigenous America as an invader and a colonizer without regard for the original inhabitants o f the lands "he discovered"... The belief in the inherent superiority o f the European current at the time allowed the initial claim to be made ~ but the legal basis for the legitimacy o f this claim is doubtful... The sovereign and the church collaborated to deny the rights o f Indigenous Peoples using the "doctrine o f discovery" as their basis. It is noteworthy that these Papal Bulls were enacted without consulting or achieving the consent o f the Indigenous Peoples o f the Americas... B y 1493, the patterns were set for the next five hundred or so years in the Americas and other places where European colonizers relocated, displaced and dispossessed Indigenous Peoples from their lands and resources. N o state in Europe contested the doctrine o f discovery. Every subsequent European state that moved onto the lands of Indigenous peoples used the doctrine o f discovery to assert their jurisdiction. Indigenous Peoples were moved along with flora, fauna, water and land. They had no protection against slavery, torture, murder and other horrendous acts committed against the Indigenous inhabitants by the European colonizer. During the colonization period- lasting five hundred years - Indigenous lands changed hands from one sovereign to another without consideration o f the rights o f the Indigenous inhabitants. The colonizer states treated Indigenous Peoples in national law as they were being treated in international law - as objects rather than subjects - and denied the Peoples their right to continue determining their way o f l i fe . 4 8 Indigenous discourses on the doctrines of dispossessions reject the doctrine of discovery as the foundational right for claims of sovereignty over indigenous peoples and their respective territories. They bring balance to the rationales put forward by non-Indigenous authorities that try to 'race to innocence'.49 The right of discovery wears many masks from its application to indigenous territories in North America in the 15th century through to today. In viewing these masks, we are able to connect its origins to today and see how this right gave way to conquest treaties and their present manifestations. Distinctions will be made as to whether territory that was "discovered" was inhabited or not and where inhabited territories were racially categorized to be vacant or unknown. 4 8 S. Venne, Our Elders Understand Our Rights: Evolving International Law Regarding Indigenous Peoples ( L L . M . Thesis, Faculty of Law, University o f Alberta 1997) at 9-22 [unpublished], (paragraphs omitted), [hereinafter Our Elders Understand]. 4 9 Razack describes "racing to innocence" as the failure to see the connections between subordination and privilege: " W e fail to realize that we cannot undo our own marginality without simultaneously undoing all the systems o f oppression." S. Razack, Looking White People in the Eye (Toronto: University o f Toronto Press, 1998) at 14. 76 i. doctrine of discovery #1 (as applied in non-inhabited territories - acquisition of absolute sovereignty once possession is effective) The doctrine of discovery as it was originally used by Europeans was a regulatory mechanism to achieve peace or quiet territorial claims amongst themselves over "unoccupied or unknown lands" and the acquisition thereof. If the lands were 'unoccupied" or terra nullius, the right to discovery did not automatically vest title to such lands in the discovering sovereign.50 Rather, "discovery" gave an inchoate or paper title to the discoverer to establish sovereignty by effective occupation. In other words, the juridical effect would have the discoverer's sovereignty vest in the territory inchoately upon initial discovery. This rudimentary claim would become complete or developed upon possession and the successful" discoverer" would have absolute territorial sovereignty against all others. ii) doctrine of discovery #2 (as applied in inhabited territories- acquisition of territorial sovereignty) If foreign territories were occupied and were not terra nullius but were unknown or terra incognita, then the inchoate discovery right would be made complete through possession obtained by 1) conquest or 2) purchase. Churchill states the basic tenet of the doctrine was interpreted by American courts and was argued to be a composite of international law with respect to acquisitions of foreign territories in the early 19th century: ...that the European nation which first discovered and settled lands previously unknown to Europeans thereby gained the right to acquire those lands from their inhabitants - became part o f the early body o f international law dealing with aboriginal peoples... [B]y the time Europeans settled in North America, it was well-established international law that natives had property rights could not be lawfully denied by the s c Slattery states: The doctrine o f "discovery" was never a principle o f inter-national law, but at most a part o f "the common law of European sovereigns. If it could not confer sovereignty, neither could token occupation. B . Slattery, "The Indigenous Peoples o f Canada in International L a w " (University o f Dar es Salaam, 1973) at 28. 77 discovering European nation... The Right o f discovery served mainly to regulate the relations between European nations. It did not limit the powers or rights o f Indian nations in their homelands; its major limitation was to prohibit Indians from diplomatic dealings with all but the discovering European nation -Moreover, the right o f discovery gave a European nation the right to extinguish Indian land title only when the Indians consented to it by treaty. 5' According to these accounts, the right of discovery was a mere regulatory right between European sovereigns.52 When indigenous peoples had greater population densities and held the balance of power, the newcomers recognized indigenous sovereignty.53 If lands were occupied or inhabited, then no foreign sovereign could acquire such lands outright. In North America, lands were not terra nullius and were inhabited by indigenous peoples when the Europeans came upon their lands. Under international law, where foreign inhabited territories with Christian kingdoms were said to be acquired by conquest or cession, the law of conquered peoples will continue to apply until altered by the new sovereign at a later period. Colonial powers did not abide this standard, however, when acquiring indigenous 5 1 W . Churchi l l , "The Earth is Our Mother" in A . Jaimes, ed., The State of Native America: Genocide, Colonization and Resistance (Boston: South End Press, 1992) at 140 [hereinafter "The Earth is Our Mother"]. 52 Morris also recounts the purpose o f the doctrine in relation to inhabited territories and its juridical effect: After the 17th century, the discovery doctrine was generally understood not to limit or divest indigenous nations o f any authority over their territories. The doctrine was developed as a regulatory mechanism between European sovereigns to prioritize their rights to engage in international relations with indigenous nations, and to preempt other European states from interacting with the same indigenous nation. G . Morr is , "International Law and Politics: Toward a Right to Self-Determination for Indigenous Peoples" in Jaimes, Ibid, at 64 [hereinafter "International Law and Polit ics"]. 5 3 For example, the Dutch recognized the sovereign status o f indigenous peoples and their occupation o f their lands since time immemorial: Enforceable rights under immemorial possession were recognized by the legal theorists o f the Middle Ages, as they had been by the Romans before them. The doctrine o f immemorial possession, combined with the recognition o f the inherent sovereignty and possessory right o f indigenous nations, was found to be so compel l ing by the Dutch that they began to negotiate treaties for land cessions from indigenous nations from their first contact with one another. Ibid. 78 territories in North America void of Christian kingdoms. In order to expand trade into the 'new world' the Europeans had to fashion a way to exercise the right of discovery so as not engage in simultaneous wars with 1) the indigenous peoples and 2) other competing european sovereigns. However, as the balance of power tipped in favour of Europeans states such as Spain, France and Britain coupled with the increase in the settlement of colonial populations, the newcomers eventually55 denied that indigenous peoples had the sovereign capacity to occupy or hold title to their lands in the international sense. The transgressions begin to unfold in tandem with the increase in colonial power over indigenous peoples. Conquest through cession treaties with indigenous peoples no longer had to be pursued because indigenous peoples were not Christian56 and were not civilized. 5 7 These 5 4 Spaulding states that the law of "conquered infidels" did not apply in North American indigenous peoples, but rather was mere rhetoric: ...Crown sovereignty and English law could be unilaterally applied wherever the colonists planted, whether or not there had been actual conquest, whether or not any war had been just, and regardless of the requirement otherwise that the law of conquered peoples must continue to apply, at least to them, until altered by the Crown. As in the case of its international counterpart, the outlines of this colonial law argument appear to have originated in the rhetoric of 17th century colonial pamphleteers. Spaulding, supra note 6 at Part 4.2.3.2. 5 5 Britain signed treaties until the balance of power tipped in their favour. 5 6 Without legal basis, Europeans acquired territories over non-Christianized territories of the world, on the basis that indigenous peoples' in such lands were not Christian, but rather were heathens, infidels, pagans and barbarians that needed to be converted in order to satisfy Eurocentric values and beliefs of religious superiority. The fact that the indigenous peoples were not Christians gave sufficient cause to wage war even though theorists at the time of discovery questioned the legal basis of such conquest as it could not satisfy conquest through'just wars". The Pope issued papal bulls to Spain and Portugal to legitimize the taking of indigenous lands. See Our Elders Understand, supra note 48 at 12 where Venne states that these papal bulls "declared that non-Christians could not own land in the face of claims made by the Christian sovereigns." Morris compares Spanish and english usages of Christianity to justify war with indigenous peoples and rights to acquire territories through discovery: English justifications for the dispossession of North America from indigenous peoples derived from an Elizabethan Protestant doctrine declaring the English in covenant with God to bring "true" (as opposed to Spanish) Christianity to "heathen natives". The development of English legal doctrines regarding colonization was heavily influenced by George Peckham, who, in turn, relied on the writings of Victoria. Peckham, however, used Victoria for his own purposes, primarily to justify English colonization under the Laws of Nations by asserting that English Christians had the lawful right to trade with indigenous peoples worldwide. According to Peckham, if infidels refused to trade, the English were then entitled to conquer the resisters and dispossess them of their lands. By this reasoning, all that was required to wage a Just War was to come upon a people that was unwilling to trade or accept missionaries...As often happens in the development of law affecting indigenous peoples, these early self-serving justifications of the English became 79 rationalizations or justifications provided "just" cause for Europeans to engage in warfare and acquire indigenous territories through conquest as well. By characterizing indigenous peoples in these ways, European sovereigns could justify using the right of discovery to regulate acquisition of occupied lands. Although it was necessary for their survival to get the Indigenous peoples' consent to settle in the primary days of contact, this was no longer the case when survival was no longer a necessary concern of the discoverers. Discovering sovereigns would get around the conquest rules of cession or purchase by recategorizing indigenous territories as terra nullius.5* The doctrine of terra nullius holds that enshrined and legitimized in legal precedent. The 1622 Barkham\ case held, despite contrary writings by Vattel and other legal authorities, that the legal and political authority o f "heathen infidels" was necessarily abrogated when it came into contact with Christian sovereignty. "International Law and Politics", in Jaimes, supra note 51 at 63. See also The American Indian, supra note 27 and M . F . Lindley, The Acquisition and Government of Backward Territory in International Law: A Treatise on the Law and Practice Relating to Colonial Expansion (London: Longmans, Green, 1926). 5 7 Korman, supra note 23 at 57-59 set out elements of the doctrine o f civil ization, including variations o f the doctrine: superiority o f agriculture over nomadic food-gathering by inhabitants, and c iv i l good government for the legitimization o f conquest by discovery: In the eighteenth and nineteenth centuries, as religious influences on international politics gave place to secular ones, the apologists o f European expansion in the colonial world tended to justify the conquest of 'barbarian' peoples less in terms o f the right and duty to convert infidels to Christianity than by reference to the benefits o f civi l izat ion ' which European conquest and rule would serve to confer on the backward. For by this time there had emerged within Europe a sense o f cultural superiority - 'so strong that we would not hesitate to condemn it today as "racist" - that Europeans on both sides o f the Atlantic came to believe that in virtue o f the superiority o f the 'white man's' civil ization, Europeans peoples 'had a self-evident right to settle in territories they found agreeable and to subjugate any native inhabitants as might offer resistance.' But the introduction of agriculture in backward territories was only one aspect o f the c iv i l iz ing mission that was taken to justify the conquest o f non-European lands. The provision of good government, o f law and order and economic development - in short, the institution o f civi l ized rule on the European model - in 'primit ive ' parts o f the world was the end which was universally held by educated opinion within Europe to justify conquest, i f this was the only means by which the advancement o f ' c iv i l i za t ion ' could be achieved. In all its variations, the justification given for the conquest and rule o f colonial peoples to meet the standards o f ' c iv i l i z a t i on ' . 5 8 Spaulding states that terra nullius can be traced back to Roman times: The international law rule derives by analogy from a rule o f Roman c iv i l law concerning, not sovereignty over territory, but property in land. Under the Roman law doctrine of occupation, property in unowned and unoccupied lands (or unowned and unappropriated chattels) could be acquired by occupation. The basic Roman law principle also applies, in one way or another, to Crown acquisition o f lands 80 where a territory is found to belong to no one or "is without a sovereign or uninhabited," a discovering sovereign could occupy such territories and acquire territorial sovereignty. The discovering sovereigns' law would immediately become the law of the "vacant land". Spaulding states that terra nullius was enlarged or distorted when indigenous territories were sought after by Europeans. This created a limitation on the indigenous peoples' right of occupation.59 Dara Culhane aptly describes how Euro-Canadian colonizers applied the terra nullius to indigenous peoples in British Columbia to acquire inhabited lands (doctrine of discovery #2) while benefitting from the fruits of doctrine of discovery #1 as applied in non-inhabited territories: In the case of terra nullius, Britain simply proclaimed sovereignty by virtue of discovery and British law became, automatically, the law of the land. Where Indigenous populations were found inhabiting the desired land, the law required that British sovereignty had first to be won by military conquest achieved through the negotiation of treaties, before colonial law could be superimposed. Of course, Britain never had colonized and never would colonize an uninhabited land. Therefore, the doctrine of discovery/occupation/ settlement based on the notion of terra nullius was never concretely applied "on the ground." Rather, already inhabited nations were simply legally deemed to be uninhabited if the people were not Christian, not agricultural, not commercial, not sufficiently evolved" or simply in the way. In British Columbia, the doctrine of terra nullius has historically legitimized the colonial government's failure to enter into treaties with First Nations. The application of the doctrine of conquest to First Nations in British Columbia, which would have required recognition of the fact of prior occupation, and their status as human beings, was available within the confines of British imperial law but was rejected by colonial governments in British Columbia. When Aboriginal people say today that they have had to go under English colonial law. On one view, the Crown acquires ownership of "vacant" or "waste" lands in a colony, solely by operation of this principle. On another view, the Crown acquires a limited paramount lordship over all lands in a colony on the basis of a transported theory of tenures, and the lordship includes unqualified ownership of vacant lands, on the basis, shared with the Roman law principle, that "there would be no other proprietor". The theory of tenures giving rise to paramount lordship over occupied lands is itself rooted in this principle, relying in large part upon the legal fiction that the monarch originally occupied all the lands in the realm, and subsequently granted them to subjects. Spaulding, supra note 6 at Part 4. 5 9 Spaulding notes this juridical effect: "Occupation" came to be defined by culturally Eurocentric and politically biased standards, reflected in a variety of legal tests. Aboriginal peoples were deemed, on account of their presumed inferiority, "inhabitants", whose permanent connection to territory must be tested before it could qualify as occupation. The territory of peoples who failed the test was deemed to be terra nullius, freely available for acquisition by occupation on behalf of European sovereigns. Ibid. 81 to court to prove they exist, they are speaking not just poetically, but also literally.60 Through deemed terra nullius, British colonial governments would acquire indigenous territories, such as those of the Ned'u'ten, and would benefit from the following juridical effects: 1) Britian and later Canadian governments would not have to obtain the consent of indigenous peoples to settle and use their territories; 2) colonial governments could unilaterally and arbitrarily assert sovereignty over indigenous territories and colonial laws would vest in settled territories because it was deemed that Ned'u'ten laws did not exist; 3) colonial governments would not have to bore the cost of conquest through use of force or cession treaties; and 4) because the laws of the Ned'u'ten could not meet eurocentric standards of legitimacy, no proprietary interests would be recognized. This was the first departure from the doctrine of discovery in inhabited territories.61 Discovery coupled with a tailored terra nullius right, allowed for peaceful settlement of indigenous territories where colonizing powers held the balance of power and could effect their occupation. The fruits of discovery and doctrines such as terra nullius would allow western states to acquire indigenous territories and eventually displace the international subject status of indigenous peoples as owners of their homelands. 6 0 D . Culhane, The Pleasure of the Crown (Burnaby: Talonbooks, 1998) at 48. 6 1 In Johnson v. M'lntosh, 21 U . S . (8 Wheat.) 543 (1823), C h i e f Justice Marshall domestically legalized the doctrine of discovery to mean that Indigenous peoples did not have the capacity to convey title in its own sovereign right. Since indigenous peoples were not christian and not c ivi l ized, they could not own the soil , but only could occupy it. They could not like an independent state convey title at their w i l l to anyone because "discovery gave exclusive title to those who made it" who would then assert "ultimate dominion to grant the soil , while yet in possession o f the natives." Marshall states that all Europeans sovereigns recognized each other assertion of discovery which gave an exclusive right to appropriate lands occupied by the Indians and to extinguish Indian title to such lands upon purchase or conquest. He also concludes that the doctrine o f discovery can be used to convert an inhabited country into conquest by asserting discovery, maintaining possession of discovered indigenous lands and creating property from such lands through crown grants. 82 iii) doctrine of discovery #3 (acquisition of territorial and political sovereignty in inhabited territories) The second expansion62 to the doctrine came about when Europeans enlarged the right of discovery that gave access to acquire indigenous lands to include the ability to gain sovereignty over the political status of indigenous peoples as well. 6 3 Churchill summizes the Marshall trilogy, which has had great influence in the development of common law aboriginal rights, as follows: By the end of this sequence of decisions, Marshall had completely inverted international law, custom, and convention, finding that the Doctrine of Discovery imparted preeminent title over North America to Europeans - the mantle of which implicitly passed to the U.S. when England quit-claimed its thirteen 0ZBrian Slattery also observes this expansion: The international legal history of North America has traditionally been presented as a series of military and diplomatic struggles among European states and their colonial offshoots, culminating in the grand treaty settlements of the 18th and 19th centuries in which the modern international boundaries of the United States and Canada were fixed. The accounts differ in explaining exactly how European powers originally gained sovereignty over North America, with some authors allowing for such supposed methods as discovery and symbolic acts, and others discounting these and arguing that effective occupation was necessary. Despite these differences, the traditional accounts tend to assume that the original peoples of North America had no significant role to play in this high imperial drama. Indigenous peoples, it is thought, lacked sovereign status in law and so had no international title to the territories they occupied. On this view, lands of North America were legally equivalent to vacant territories which could be appropriated by the first European state to discover or occupy them. The only role assigned to the original inhabitants of North America was subsidiary, as factual obstacles or aids to the spread of European sovereignty. Slattery, supra note 8 at 682. 6 3 The United States extended the modified doctrine as rights to acquire indigenous territories