Indigenous communities define themselves as separated from the settler nation-state and insist that their rights originate from within their own system of laws. At the same time, Indigenous communities must argue that they are incorporated in the settler nation-state to be able to use its judiciary to enforce these rights. As such, they are simultaneously included into and excluded from the state. Tracing how the Indigenous paradox is inscribed into the law by investigating several Indigenous rights cases in the Americas, from the early nineteenth century to the early twenty-first, Bens illustrates how Indigenous communities have managed--and continue to manage--to navigate this paradox by developing lines of legal reasoning that mobilize the concepts of sovereignty and culture. Bens argues that understanding indigeneity as a paradoxical formation sheds light on pressing questions concerning the role of legal pluralism and shared sovereignty in contemporary multicultural societies.
This book is the proceedings of a one-day symposium sponsored by the Land Claims Agreements Coalition. Chapters report events and initiatives in chronological sequence, beginning with an explanation and evaluation of the Royal Proclamation of 1763. Subsequent chapters consider historic treaties from the late
eighteenth to the early twentieth centuries and, then, modern treaties concluded since treaty making was resumed in 1973.
In early 2018, the failures of Canada's justice system were sharply and painfully revealed in the verdicts issued in the deaths of Colten Boushie and Tina Fontaine. The outrage and confusion that followed those verdicts inspired former Crown prosecutor Harold R. Johnson to make the case against Canada for its failure to fulfill its duty under Treaty to effectively deliver justice to Indigenous people, worsening the situation and ensuring long-term damage to Indigenous communities. Johnson examines the justice system's failures to deliver "peace and good order" to Indigenous people. He explores the part that he understands himself to have played in that mismanagement, drawing on insights he has gained from the experience; insights into the roots and immediate effects of how the justice system has failed Indigenous people, in all the communities in which they live; and insights into the struggle for peace and good order for Indigenous people now.
Providing a clear, critical analysis of the history of Aboriginal law, A Reconciliation without Recollection? exposes the limitations of the current constitutional framework of reconciliation by following the lines of descent underlying the relationship between Crown and Aboriginal sovereignty.
Arthur Ray's extensive knowledge in the history of the fur trade and Native economic history brought him into the courts as an expert witness in the mid-1980s. For over twenty-five years he has been a part of landmark litigation concerning treaty rights, Aboriginal title, and Métis rights. In Telling It to the Judge, Ray recalls lengthy courtroom battles over lines of evidence, historical interpretation, and philosophies of history, reflecting on the problems inherent in teaching history in the adversarial courtroom setting. Told with charm and based on extensive experience, Telling It to the Judge is a unique narrative of courtroom strategy in the effort to obtain constitutional recognition of Aboriginal and treaty rights.
Drawing from forty-five years of experience, E. Richard Hart elucidates the use of history as expert testimony in American Indian tribal litigation. Such lawsuits deal with aboriginal territory; hunting, fishing, and plant gathering rights; reservation boundaries; water rights; federal recognition; and other questions that have a historical basis. The methodology necessary to assemble successful expert testimony for tribes is complex and demanding and the legal cases have serious implications for man.