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SOSC 2350 Note 15.docx

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York University
Social Science
SOSC 2350
Dena Demos

SOSC 2350 Note 15 Law and Aboriginal Peoples in Canada Two Contrasting Faces of Law: - On one face, the rule of law represents a crucial means whereby the dominant rules and values in a society are applied and enforced - On the other, law represents a place where those rules and values are challenged and new ways of understanding may emerge. - Such is the case of aboriginal law o According to the legal historical record, that since confederation Canadian law has showed means whereby the culture has derived from colonists and religious values that were imposed on religious people o There have also been moments when these institution have been challenged by other people  It’s taken a lot of work, mobilization, and conversation. - We can say that there is more resolve to facilitate this legal resolution than before. o Idle No More Movement: this involves issues like treaty claims, bill c- 45 (natives are concerned that rights will be vanquished for the natives)  It’s an ongoing movement for indigenous rights, sovereignty, etc.  It’s culminating in a series of blockades o AS a result of this movement, there is now an unprecedented number of ministers having meetings to endorse particular plans for Ottawa passing plans  To change the structure of government finance plans  It’s meant to set up a long-term process for treaties and land- claims. - Maybe we’re on a larger picture of addressing native rights over things like jurisdiction, identity, and political voice. - “The impact of the history of colonization, informed by the experiences of schools … McMillan p.180 o How has the history of colonization influenced native culture? - Consider three historical phases that result in the problematic nature of legal consciousness Initial phase of aboriginal-crown relationship (1600-763) - Context of relationship o Aboriginal peoples are military powerful, possess unique knowledge and skills, control and valuable territory o Europeans first depended greatly on aboriginals o Competing Empires (France v. England) and conflicts within Empires o Europeans settlements were necessary for helping sides o They were unable to last without the Europeans - Legal relations o Nation-to-nation relationship o Relations regulated by negotiation between First Nations and the Crown  Treaties  Two-row wampum belt  Purple beads signify the course of two vessels: an Iroquois canoe and a European boat. Both of them are travelling the river of life together. They’re parallel and never touching  The three white stripes denote peace  This symbolizes the meaning of the treaty between the Iroquois and settlers.  It symbolizes the agreement at which the natives welcomed  This was a relationship of one of brothers.  The relationship is a partnership between these two governments  Recognition in practice in law of internal autonomy  However, the crown claimed sovereignty over North America - Royal proclamation of 1763 o After the victory in the seven years war, Great Britain acquires French territory in NA  Establishes Britain as strongest European colonial power o Treaty to stabilize relations with Aboriginal peoples through regulation of trade, settlement, and land purchases on western frontier o It acknowledges that natives possessed territories, and established a territory in which whites couldn’t settle o It could only be made by aboriginal peoples by treaty to the crown o Affirms native title to land - Tipping point (1763-1860) o Gradually reduced the need for Aboriginals peoples as military allies  Defeat of French Empire 1763  American Revolution 1775-83  War of 1812 o Reduced imperial competition and resolution of stable borders between Canada and US o Increased settlement and pressure to expand (loyalists) o Aboriginal peoples disposed of valuable land and resources – impoverishment and risk of conflict (particular with settlers) o The Natives sided with the British because the Americans were more likely to interfere with their way of life o Control through military repression is an option for the crown, but since wars were expensive they relied more on natives - British Law and Colonial Policy o The aim was an orderly frontier regulated by the rule of law  Idea that law applied equally to everyone in the colonies, including natives o However, the application of the law was inconsistent – some treaties was coerced  Use of treaties and contract were secured on false representations, some poorly described the lands transferred, some where not recorded, thus not paid o Tensions  Application of law as an efficient tool of domination and social control o English law was applied  Law was an efficient tool of domination  Juxtaposed to law as a legal protection (ethnocentric paternalism) it recognized the inherent humanity of natives o Ironically, some natives could vote on the same terms of Europeans until the Indian Act took that away o The policy was designed to protect the indigenous people from the actions of Europeans, but also to resocialize them to European education and Catholism for a future economy. - Governance project of the Colonial office o Efforts to do away (with nation-to-nation frameworks (resist making treaties) o Extended English law and rights to aboriginals as British subject o Also there is an expand of paternalist protections of natives (only the crown could sell) o This was done to slow down settlement to produce an orderly frontier - Gradual civilization act of 1857 (before Indian Act) o It explicitly declared the assimilation of Aboriginal peoples and defined inferior legal status for natives o Denied them the franchise o Under paternalistic protection of government o Assimilation policies to “civilize” them  Compulsory Christianization  Residential schools  Once “civilized”, board of examiners evaluated each native’s moral character, education and personal habits  If passed, it would grant 40 acres of land and full citizenship, but loss of status. o Three ways of assimilation  Reserves  Bank castles were appointed to replace tribal governments  An act of defining who was an Indian as a status o Rules for enfranchisement by which natives could acquire citizenship were intended to promote the absorption of natives into colonial society.  This is unattractive to the majority of natives  - Domination: marginalization and attempted assimilation In 1860-1970 o Context  There was an authority to legislate natives and their land. It was allocated to the authority to the new dominion of Canada  It began eradicating native leadership through a liberal election system  There was Further dispossession, marginalization, impoverishment of Aboriginal peoples  Assimilation became important goal of aboriginal policy o There is an influx of settlers in upper Canada that created pressures on the government to free up more land for settlement  This leaves policymakers to find more aggressive civilization measures. o Aboriginals are now an obstacle in the creation of the Euro-Canadian civilization. They’re being perceived as a dying culture that is forcibly assimilated into Canadian society o These policies tried to enforce assimilation o The point to remember is that although many of these policies are no longer in place, their legacy continues, and continues to influence Canada’s relationship with aboriginals in a sense of controlling, disempowering, and exploitive.  Aboriginal people who would become Christian would become an example to those who clung to their traditional way of life.  The hope was that originally natives would disappear. Legal Relations - Natives were deprived the right to vote, unable to sue government or seek legal advice for suit - Cultural practices banned (potlatch) - They placed further limitations of cultures such as ceremonies, dances, etc. - Residential schools were compulsory attendance from 1920 - Indian Act created elected band councils and invested them with limited authority - Indian act determines who qualifies as an “Indian” - Despite the Act being introduced as a temporal control over natives, it was clearly shown as an agenda to absorb natives into the body politic - The First nations are the only group having a special legislation governing their groups – laws that apply to natives do not apply to other people in Canada. - The act defined who was an Indian under the law, what Indians could do or what they couldn’t do. o Status Indians are registered for the purpose of special entitlements o It wasn’t until 1960 that first nations members were given the right to vote in federal elections - There was an amendment in 1880 in the Indian act for the automatic loss of status with those who had a university degree or for any women who married a non-Indian or a non-registered Indian - From 1927 and until 1951 it was illegal under the Indian act to take any type of claim or grievance into court - Our Canadian Indian act is regarded as providing the framework for South Africa’s apartheid system. o It has the dubious distinction to be the few in the world that is aimed at a specific racial group. Residential School System - Residential school system was intended to force the assimilation of aboriginal peoples into European-Canadian society o Killing the Indian in the child o The churches would run these school - Methods of forced assimilation included o Removal from communities and dislocation of families o Punishment for speaking indigenous languages or practicing their cultural traditions - Residential schools were known for overcrowding, poor sanitation and lack of medical healthcare - Residential school students often experienced high rates of physical and sexual abuse, social dislocation and the effects of institutionalization - It was punishable by law for children to be out of these schools, but also for parents from withholding children from the schools - There were restrictions of their civil rights – they weren’t understood as persons under the law. There were no means of challenging these intrusions on their families and communities o They were wards of the government. This act made it very possible and easy to assume legal custody of children in the native schools. - Between 1889-1998 were forced to attend schools to forget certain things o Language, culture, and abuse o This nightmare continued for 160 years. o In 1998 the last residential school was shut down - Reconciliation now can only be maintained if we are aware of our history. - Residential schools were only one aspect of the project to assimilate all people o The devastating effects of this program of social engineering (using the law as a tool of social engineering to broaden the public view) - On June 11, 2008 Stephen Harper makes an apology on behalf of all Canadians to the Native people o A government apology and compensation of residential school abuse despite being a critical start may not be enough to restore the relations. o It is important to acknowledge and reflect on the brutalities of our past – it allows us to make change Contemporary Period - Over the past 40 years Canada has seen the development of a global indigenous identity. - Activism, consciousness-raising, and organizing o Universal Declaration of Human Rights in 1948 o Civil Rights movement in US o Aboriginal rights movement (1970s-80s) o Increasing militancy and conflict - Everything that is important and knowledge about their place in their universe o Most of the destruction of natives has come from British policies - The indigenous movement around identity has earned increasing institutionalization within the system and culminated a permanent forum, and finally, a declaration on the rights of indigenous nations o This triggered a growth of consciousness of what has to be indigenous. - Canada only recently signed the US declaration - Since the 1970s, we’ve put major court decisions acknowledging aboriginal rights and protest rights (blockades) - For indigenous communities to rely on the court system of what is still regarded as a colonial institution, this is highly problematic – you see it reflected o It represents tasks of approval of these kinds of institutions o Leaders of natives are fighting to hang on to whatever distinction they have left.  Therefore, they want to play by western rules, despite that working against distinction - There is one frustration – particularly since 1990 there has been a rise in bad behaviour based on civil disobedience (Oka, Gustafson Lake, Ipperwash, Caledonia, Ardoch - Oka Crisis o It occurs when the leaders decide to allow the construction of a golf course o This is met with great resistance on how the state can allow this o This upsets natives because the golf course
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