...just to wrap things up
May. 1st, 2007 08:41 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
ciroccoj...because I've already sent the thing in, but I have this thing about completion, so even though I'm no longer asking for beta, I need the second & third parts of Part IV up or I will someday wonder what happened to them.
Also, I haven't been to bed yet.
b) Indigenous Sovereignty in the United States
Indigenous sovereignty in the United States is somewhat more complex than the Australian model, although it does on the surface at least give more deference to the concept of sovereignty and self-rule.
The U.S. Constitution appears to recognize Indian tribes as distinct governments. For example, one clause authorizes Congress to regulate commerce with "foreign nations, among the several states, and with the Indian tribes." Court precedence also appears to endorse native sovereignty. Johnson v. McIntosh decided in 1832 that although Native tribes' rights to sovereignty had been impaired by colonialization, they had not been destroyed . It also stated that only the federal government had the right to negotiate for Indian land. In Cherokee Nation v. Georgia, Chief Justice Marshall described tribes as "domestic, dependent nations" . And Worcester v. Georgia, decided in 1832, stated that tribes have not lost their sovereign powers by becoming subject to the power of the U.S., and that state laws do not apply in Indian Country .
However, some statutes infringe upon those rights. For example, Public Law 2806 (1953), awarded jurisdiction over general criminal7 and some civil8 matters on reservations to the States. A few other laws have awarded concurrent jurisdiction to tribal and State government over areas such as child welfare.
These statutes and a few recent court cases seem to indicate that tribes are sovereign only to the extent that the United States allows them to be sovereign. They also result in contradictory and confusing outcomes in disputes. For example, in 1831 the Cherokee were barred from suing in the Supreme Court because an Indian nation is not a foreign nation. However, in a case in 1997 case, the Coeur d'Alene were barred from suing in district court because an Indian nation is a foreign nation . As D'Errico puts it, "You figure it out: "now you see it, now you don't."
Moreover, the most concrete example of native "sovereignty" (the fact that reserves are ruled by a band council), does not always mean that the bands are ruled by traditional means. Some describe the results of the Indian Reorganization Act , which was passed to enable tribes to rule themselves, as an "…elaborate puppet government. … [the] act was also passed -- as its title states -- to "reorganize" the Indians, overthrowing traditional organizations and promoting a "democratic" tribal council system structured as a corporate business.
Three relatively recent court cases show the scope of Native government and power. Montana v. United States [Montana], Nevada et al. v. Hicks et al. [Nevada], and Atkinson Trading Co., Inc. v. Shirley et al. [Atkinson] , dealing with regulation of hunting and fishing on reserve lands, searches on reserve lands for crimes committed off reserve, and civil authority over non-tribe members over non-reserve tribal land, have all helped to set limits on tribal authority. Montana stated that the "[e]xercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations . . . cannot survive without express congressional delegation,” and Nevada stated that this applied to both Indian and non-Indian land. Nevada also found that "tribal authority to regulate state officers in executing process related to the off-reservation violation of state laws is not essential to tribal self-government or internal relations."
Atkinson stated that "tribal jurisdiction is limited: ... Their power over nonmembers on non-Indian fee land is sharply circumscribed." Montana noted only two exceptions: a tribe could regulate the activities of nonmembers in consensual relationships with the tribe or its members; and a tribe could "exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the tribe’s political integrity, economic security, or health or welfare."
All of these limits paint a picture of somewhat less than meaningful sovereignty for native tribes in the United States.
c) Indigenous Sovereignty in Canada
In Canada, as in Australia and the United States, sovereignty rights have evolved slowly over time, expanding and contracting. As happened in the United States, after an initial period of treaty-making, tribes were simply pushed into very small reserves, and the relationship between them and the Crown became that of wards of the state. By the time the Indian Act was passed in 1876, the powers of tribal self-government were defined very narrowly. By 1929, when the R v. Syliboy case was decided, the Court determined that an indigenous band was not an independent power and thus was not capable of concluding a treaty.
In the latter part of the 20th century, the demands of aboriginal rights organizations began to be heard. The Calder case in 1973 , though a loss for the band involved in the suit, helped the cause of indigenous land claims in that three of the judges agreed that the indigenous people in question retained their ownership rights of traditional territories. And when the Constitution Act of 1982 passed into law in 1982, s. 35 stated that "[t]he existing aboriginal and treaty rights of the aboriginal people of Canada are hereby recognized and affirmed." In addition, section 25 of the Charter of Rights and Freedoms also stated that "guarantees in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms."
In R. v. Sparrow , the Court developed a test for the justification of interference with an existing aboriginal right, setting out the idea that aboriginal rights had to be respected whenever possible, unless there were good reasons for abrogating them and other options available had been carefully considered.
In reaction to the Sparrow decision, in 1996 in the Van der Preet trilogy of cases the Court defined those rights more narrowly, stating that "in order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming that right." In other words, in order to be permitted to pursue customs to enable them to live as they had lived before, a band had to show that it engaged in those customs before the arrival of Europeans, and that there was a reasonable degree of continuity between that practice and their current customs. This is a far cry from being considered sovereign and able to determine what activities to engage in.
In the Delgamuukw v. British Columbia decision, self-determination was further undercut when the Court declared that in order to be permitted to enjoy use of a territory, a band had to prove a number of things including "exclusive possession" of said territory - despite the fact that many bands in general, particularly the band in question, did not practice exclusive possession of territories, but shared them with other indigenous peoples. Thus, in order to be permitted sovereignty and control over a piece of land, they had to prove that they had used it in the manner that Europeans would have used it.
Delgamuukw also asserted that "distinctive aboriginal societies exist with, and are a part of, a broader social, political and economic community." The Court also indicated that it was permissible to infringe upon aboriginal title lands for many purposes, including "the development of agriculture, forestry, mining, and hydroelectric power, the general economic development … protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims.
In the Tlingit and Haida cases of 2004 the Court revived the spirit of Sparrow and declared that the government has a duty to consult and try to accommodate a tribe as much as possible and that this duty "cannot be interpreted narrowly or technically."
In lands that are occupied by natives and are ostensibly native land put aside for their exclusive use, the situation is fairly similar to that of the US reservations, with perhaps a little less deference given to the governments of the reservations. As in the United States, band councils have the right to govern the internal affairs of the reservations, but in order to be in power they must be chosen in the manner that municipal governments are chosen, and for the most part, they are expected to comport themselves as would municipal governments. For example, while there is some deference given to certain indigenous practices with respect to criminal law, for the most part, band members must still follow provincial and Federal laws and be subject to the authority of the provincial and Federal governments. Decisions of band councils are subject to review by the Federal government, under the Indian Act. And the Crown retains, by statute and by court precedent, ultimate title to all Canadian lands, including land on reservations.
Probably the best example of Canada's willingness to respect indigenous demands for sovereignty and self-government can be seen in the creation of the territory of Nunavut. Although in many ways it is no more than a new territory like any other (for example, the government of Nunavut will be chosen democratically by all Nunavut citizens, indigenous and non-indigenous), the Inuit will have great influence in the way the territory is run, since they constitute eighty-five percent of the population of Nunavut. It is still too soon to say how different this indigenous influence will make the territory as compared to other Canadian jurisdictions, but it does stand as a good example of how states can deal with calls for native self-determination.
There are two caveats. One, it seems far easier to "grant" control of a territory to indigenous peoples when it is land that is too inhospitable for there to be anybody but indigenous peoples living on it, and two, it must be remembered that Nunavut "is a public form of government that derives from a Canadian federal statute, the 1993 Nunavut Act , rather than from the Inuit's inherent right to self-government."
***
...and that's all she wrote. Other than the conclusion, which really sucked and just rehashed stuff so I'm too embarrassed to post it in case I happen to wander through here some day in the distant future and read it and wonder WTF.
So I pulled yet another all-nighter, but this time it really wasn't my fault. I went to bed, I swear I did, but my brain was running on so much hyper energy that I lay there for over an hour trying to go to sleep with no luck. Finally gave up. Watched Queer As Folk (mmm, Brian Kinney), some vaguely Law & Order-like show on A&E (Coach? Is that you?), CTV news (it's going to be windy & rainy in Toronto today), a documentary on serial killers (did you know Charles Manson had abnormally high levels of either nickel or lead in his hair?), and CNN. Wow, 1 in 10 American families have at least one illegal immigrant. That's a lot of illegals. Also? Yellow is not one of the colours of the American flag. If you're asked that question on a citizenship test, now you know.
I had vague ideas about writing a witty yet passive-aggressive entry aimed at my anonymous lj un-admirer, but I think it was only funny at four in the morning. I'll probably just continue to ignore her.
...and now it's time to start my day and prepare for our vacation tomorrow. Packing, picking up drugs, possibly buying a swimsuit, dropping off all 97 books I borrowed for AbLaw, calling the city re. our taxes, collecting my choir music, and possibly trying to get a nap in there somewhere. We leave tomorrow at 5:30AM. ::sob::
Also, I haven't been to bed yet.
b) Indigenous Sovereignty in the United States
Indigenous sovereignty in the United States is somewhat more complex than the Australian model, although it does on the surface at least give more deference to the concept of sovereignty and self-rule.
The U.S. Constitution appears to recognize Indian tribes as distinct governments. For example, one clause authorizes Congress to regulate commerce with "foreign nations, among the several states, and with the Indian tribes." Court precedence also appears to endorse native sovereignty. Johnson v. McIntosh decided in 1832 that although Native tribes' rights to sovereignty had been impaired by colonialization, they had not been destroyed . It also stated that only the federal government had the right to negotiate for Indian land. In Cherokee Nation v. Georgia, Chief Justice Marshall described tribes as "domestic, dependent nations" . And Worcester v. Georgia, decided in 1832, stated that tribes have not lost their sovereign powers by becoming subject to the power of the U.S., and that state laws do not apply in Indian Country .
However, some statutes infringe upon those rights. For example, Public Law 2806 (1953), awarded jurisdiction over general criminal7 and some civil8 matters on reservations to the States. A few other laws have awarded concurrent jurisdiction to tribal and State government over areas such as child welfare.
These statutes and a few recent court cases seem to indicate that tribes are sovereign only to the extent that the United States allows them to be sovereign. They also result in contradictory and confusing outcomes in disputes. For example, in 1831 the Cherokee were barred from suing in the Supreme Court because an Indian nation is not a foreign nation. However, in a case in 1997 case, the Coeur d'Alene were barred from suing in district court because an Indian nation is a foreign nation . As D'Errico puts it, "You figure it out: "now you see it, now you don't."
Moreover, the most concrete example of native "sovereignty" (the fact that reserves are ruled by a band council), does not always mean that the bands are ruled by traditional means. Some describe the results of the Indian Reorganization Act , which was passed to enable tribes to rule themselves, as an "…elaborate puppet government. … [the] act was also passed -- as its title states -- to "reorganize" the Indians, overthrowing traditional organizations and promoting a "democratic" tribal council system structured as a corporate business.
Three relatively recent court cases show the scope of Native government and power. Montana v. United States [Montana], Nevada et al. v. Hicks et al. [Nevada], and Atkinson Trading Co., Inc. v. Shirley et al. [Atkinson] , dealing with regulation of hunting and fishing on reserve lands, searches on reserve lands for crimes committed off reserve, and civil authority over non-tribe members over non-reserve tribal land, have all helped to set limits on tribal authority. Montana stated that the "[e]xercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations . . . cannot survive without express congressional delegation,” and Nevada stated that this applied to both Indian and non-Indian land. Nevada also found that "tribal authority to regulate state officers in executing process related to the off-reservation violation of state laws is not essential to tribal self-government or internal relations."
Atkinson stated that "tribal jurisdiction is limited: ... Their power over nonmembers on non-Indian fee land is sharply circumscribed." Montana noted only two exceptions: a tribe could regulate the activities of nonmembers in consensual relationships with the tribe or its members; and a tribe could "exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the tribe’s political integrity, economic security, or health or welfare."
All of these limits paint a picture of somewhat less than meaningful sovereignty for native tribes in the United States.
c) Indigenous Sovereignty in Canada
In Canada, as in Australia and the United States, sovereignty rights have evolved slowly over time, expanding and contracting. As happened in the United States, after an initial period of treaty-making, tribes were simply pushed into very small reserves, and the relationship between them and the Crown became that of wards of the state. By the time the Indian Act was passed in 1876, the powers of tribal self-government were defined very narrowly. By 1929, when the R v. Syliboy case was decided, the Court determined that an indigenous band was not an independent power and thus was not capable of concluding a treaty.
In the latter part of the 20th century, the demands of aboriginal rights organizations began to be heard. The Calder case in 1973 , though a loss for the band involved in the suit, helped the cause of indigenous land claims in that three of the judges agreed that the indigenous people in question retained their ownership rights of traditional territories. And when the Constitution Act of 1982 passed into law in 1982, s. 35 stated that "[t]he existing aboriginal and treaty rights of the aboriginal people of Canada are hereby recognized and affirmed." In addition, section 25 of the Charter of Rights and Freedoms also stated that "guarantees in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms."
In R. v. Sparrow , the Court developed a test for the justification of interference with an existing aboriginal right, setting out the idea that aboriginal rights had to be respected whenever possible, unless there were good reasons for abrogating them and other options available had been carefully considered.
In reaction to the Sparrow decision, in 1996 in the Van der Preet trilogy of cases the Court defined those rights more narrowly, stating that "in order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming that right." In other words, in order to be permitted to pursue customs to enable them to live as they had lived before, a band had to show that it engaged in those customs before the arrival of Europeans, and that there was a reasonable degree of continuity between that practice and their current customs. This is a far cry from being considered sovereign and able to determine what activities to engage in.
In the Delgamuukw v. British Columbia decision, self-determination was further undercut when the Court declared that in order to be permitted to enjoy use of a territory, a band had to prove a number of things including "exclusive possession" of said territory - despite the fact that many bands in general, particularly the band in question, did not practice exclusive possession of territories, but shared them with other indigenous peoples. Thus, in order to be permitted sovereignty and control over a piece of land, they had to prove that they had used it in the manner that Europeans would have used it.
Delgamuukw also asserted that "distinctive aboriginal societies exist with, and are a part of, a broader social, political and economic community." The Court also indicated that it was permissible to infringe upon aboriginal title lands for many purposes, including "the development of agriculture, forestry, mining, and hydroelectric power, the general economic development … protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims.
In the Tlingit and Haida cases of 2004 the Court revived the spirit of Sparrow and declared that the government has a duty to consult and try to accommodate a tribe as much as possible and that this duty "cannot be interpreted narrowly or technically."
In lands that are occupied by natives and are ostensibly native land put aside for their exclusive use, the situation is fairly similar to that of the US reservations, with perhaps a little less deference given to the governments of the reservations. As in the United States, band councils have the right to govern the internal affairs of the reservations, but in order to be in power they must be chosen in the manner that municipal governments are chosen, and for the most part, they are expected to comport themselves as would municipal governments. For example, while there is some deference given to certain indigenous practices with respect to criminal law, for the most part, band members must still follow provincial and Federal laws and be subject to the authority of the provincial and Federal governments. Decisions of band councils are subject to review by the Federal government, under the Indian Act. And the Crown retains, by statute and by court precedent, ultimate title to all Canadian lands, including land on reservations.
Probably the best example of Canada's willingness to respect indigenous demands for sovereignty and self-government can be seen in the creation of the territory of Nunavut. Although in many ways it is no more than a new territory like any other (for example, the government of Nunavut will be chosen democratically by all Nunavut citizens, indigenous and non-indigenous), the Inuit will have great influence in the way the territory is run, since they constitute eighty-five percent of the population of Nunavut. It is still too soon to say how different this indigenous influence will make the territory as compared to other Canadian jurisdictions, but it does stand as a good example of how states can deal with calls for native self-determination.
There are two caveats. One, it seems far easier to "grant" control of a territory to indigenous peoples when it is land that is too inhospitable for there to be anybody but indigenous peoples living on it, and two, it must be remembered that Nunavut "is a public form of government that derives from a Canadian federal statute, the 1993 Nunavut Act , rather than from the Inuit's inherent right to self-government."
...and that's all she wrote. Other than the conclusion, which really sucked and just rehashed stuff so I'm too embarrassed to post it in case I happen to wander through here some day in the distant future and read it and wonder WTF.
So I pulled yet another all-nighter, but this time it really wasn't my fault. I went to bed, I swear I did, but my brain was running on so much hyper energy that I lay there for over an hour trying to go to sleep with no luck. Finally gave up. Watched Queer As Folk (mmm, Brian Kinney), some vaguely Law & Order-like show on A&E (Coach? Is that you?), CTV news (it's going to be windy & rainy in Toronto today), a documentary on serial killers (did you know Charles Manson had abnormally high levels of either nickel or lead in his hair?), and CNN. Wow, 1 in 10 American families have at least one illegal immigrant. That's a lot of illegals. Also? Yellow is not one of the colours of the American flag. If you're asked that question on a citizenship test, now you know.
I had vague ideas about writing a witty yet passive-aggressive entry aimed at my anonymous lj un-admirer, but I think it was only funny at four in the morning. I'll probably just continue to ignore her.
...and now it's time to start my day and prepare for our vacation tomorrow. Packing, picking up drugs, possibly buying a swimsuit, dropping off all 97 books I borrowed for AbLaw, calling the city re. our taxes, collecting my choir music, and possibly trying to get a nap in there somewhere. We leave tomorrow at 5:30AM. ::sob::
