Pre-existing Legal Genealogies in Canada
The territory we now call Canada has a rich, varied, and ancient legal history.1 Prior to European arrival Indigenous peoples regulated their affairs and addressed their disputes by reference to a vast array of laws, practices, customs, and traditions.2 Although (like every human society) they did not always abide by their highest values they nevertheless had recognizable sources of authority which guided their governance and collective decision-making. Indigenous peoples “constituted” their societies in different ways—through, inter alia, Confederacies, House-structures, Leagues, Chieftainships, Tribes, Bands, and extended kin-based groupings. These structures facilitated world views which enhanced relationships of peace, friendship, and respect. At the same time, they were not always successful in cultivating goodwill. War, conflict, and social disorder were painful and periodic facts of life, as is the case with all peoples. Indigenous constitutional law prior to European arrival was complex. It produced tremendous innovations in human care and sustainable land use while struggling to deal with humanity’s inevitable limitations.
Like all legal systems, Indigenous constitutional structures were entangled with their broader life ways.3 Furthermore, these structures were fluid and changed through time. References(p. 14) They shifted, transformed, or retrenched in accordance with the ebb and flow of political, economic, and social considerations at play across the continent. Long and complicated legal genealogies preceded European arrival in North America.4 Indigenous constitutional arrangements continued to develop after Europeans contact too. In fact, Indigenous legal orders renew themselves even in the present day. All living traditions must adapt and change in order to stay relevant amidst changing circumstances. The presence of law is a necessary but not sufficient condition for securing any society’s health, stability, and vitality. Law must always be seen in its broader light to understand it can never be an autonomous source of power.5 This is as true in a historical context as it is in the present day. Law draws upon wider social networks even as it simultaneously constitutes those relationships.6
This chapter introduces the fact of historic Indigenous constitutionalism in the place we now call Canada.7 Indigenous constitutionalism has provided the standards through which social change is managed or resisted within Indigenous societies. There are approximately as many Indigenous peoples in Canada today as there were when Jacques Cartier arrived on Indigenous shores in 1534.8 They are comprised of over 11 different language families, which include 50 different languages. This linguistic diversity signals the wider legal, economic, social, political, and spiritual diversity among Indigenous Peoples of northern North America.9 The variation in Indigenous constitutional traditions is what one would expect when societies distinctly develop in diverse ecological spaces over vast epochs of time.
For instance, the Inuit people of the Canadian arctic have very different constitutional traditions than the Nuu-chah-nulth people on the Pacific-ocean’s coast. Likewise, the Mikmaq people of Atlantic Canada legally orient themselves in ways which are profoundly dissimilar from the Athapaskan-speaking peoples in the McKenzie delta. Furthermore, the Cree of the Hudson Bay lowlands, boreal forests, and Canadian prairies have diverse legal ideas within their linguistic family which are vastly different from (p. 15) non-Cree groups. Their historic constitutional practices would have been inaccessible and generally meaningless to Gitksan, Tsilhqot’in, Haida, Salish, Tsimshian, Scwepmec, Kwakwakwa’ak, Ktunaxa, Tahltan, and other First Nations in the area now called British Columbia (in Canada’s far west) in the time before Europeans arrived in northern North America. Moreover, all these traditions are also quite distinct when measured against European and colonially derived constitutional law.
Historic constitutionalism in what is now Canada should be judged in its own light and judged on its own terms.10 The mere fact of Indigenous difference should not prevent us from recognizing and affirming our country’s pre-European constitutional roots.11
Aboriginal peoples in section 35(2) of the Constitution Act 1982 are described as the Inuit, Métis, and Indian Peoples of Canada.12 A few historic examples of Indigenous constitutionalism will be this chapter’s remaining focus in order to place Canadian constitutional law in a broader light. We will briefly consider constitutional traditions from varied perspectives including the Inuit, Métis, Mikmaq, Haudenosaunee, Anishinaabe, Cree, and BC First Nations generally, including the Secwepmec and Gitksan nations.
The Inuit people of the circumpolar world have long occupied territories characterized by extreme cold and harsh climatic conditions. The arctic land and sea is covered by ice and snow for three-quarters of the year. Long dark winters where the sun barely shows itself are broken by summer seasons with 24 hours of daylight. The territory is largely treeless, and lakes, rivers, and streams are largely inaccessible when the land is snow-bound. In this environment Inuit constitutionalism rested on social and political forces which compelled the diffusion of legal order across wide spaces.13 Animals, fish, and plant life were not easily detected and harvested. Thus extended families were obliged References(p. 16) to spread out across the landscape to make a living.14 The placement of constitutional regulation and decision-making in small kin-based harvesting groups was an identifiable feature of this system.15
Inuit constitutional law was based on concepts that gave primacy to the sacred nature of breath in a life-and-death environment. Sila (the world’s breath) was regarded as a life-force which ordered and unified existence in the arctic and thus was constitutional in a broad legal sense.16 It gave structure to governance, life-regulation, and decision-making. Agency could be exercised by both the broader environment and humans within these structures.17 Attentiveness to non-human agency bestowed upon Inuit legal order a distinct set of societal rules and procedures.18 This gave special place to forces such as the weather, the decisions of animals, or the role of incorporeal living in legal affairs.19
Much of historic Inuit constitutionalism chronicles the self-governing obligations humans have to one another and these forces at different seasons of the year.20 Inuit laws would be recited at feasts or during “the prolonged period of enforced relative idleness during the dark period.”21 The failure to abide by these rules and precepts were not just private matters but affected entire communities.22 In this sense they had a public law-like dimension (though the “public” of contemporary Canadian constitutional law must be distinguished from the “public” of Inuit society, which was dispersed across communities remote from one another and the broader world).23 It was directed towards sustaining communities’ broader social and political order through the prevention of starvation and the facilitation of social peace.24 Inuit constitutionalism aimed at these purposes is still an important force in northern Canada today.25
Métis people also lived by constitutional forms in their societies.26 Métis people are found in many places across Canada where distinct Indigenous societies developed prior to “the time when Europeans effectively established political and legal control in a particular area.”27 “Being Métis … can mean different things in different contexts: one context may speak to an individual’s inner sense of personal identity; another may refer to membership in a particular Métis community; a third may signal entitlement to Métis rights as recognized by section 35 of the Constitution Act, 1982.”28
The Métis of the Red River Valley at the south-eastern edge of Canada’s prairies developed a distinctive constitutional order in the early 1800s. A unique language, culture, economy, and world-view was established which was separate from both First Nation and European people who were the Métis’ ancestors. During the time of their Nation’s growth agricultural activity was intensified in the Red River Valley, and a buffalo hunt developed which operated in accordance with Métis ideas and practices. “The buffalo hunt involved hundreds of men, women, and children, together with their Red River carts, horses and tools for processing and preserving the meat and hides.”29 Laws of the Buffalo Hunt were codified and included provisions such as:
References(p. 18) G. For the third offence, the offender to be flogged.
H. Any person convicted of theft, even to the value of a sinew, to be brought to the middle of the camp, and the crier to call out his or her name three times, adding the word “Thief”, at each time.30
The Law of the Hunt was a constitutional expression of public principles which assisted Métis in governing their main socio-economic activity. By “1869, the Red River Settlement was a vibrant community, with a free enterprise system and established judicial and civic institutions, centred on the retail stores, hotels, trading undertakings and saloons of what is now downtown Winnipeg.”31 In fact, “[t]he Métis were the dominant demographic group in the Settlement, comprising around 85 percent of the population, and held leadership positions in business, church and government.” When Canada intruded into this area to create its first province after Confederation, the Métis organized themselves into a Provisional Government. They at first strenuously resisted and later ushered the territory’s entry into Confederation as Manitoba.32
As a result, Métis constitutionalism was an important factor in bringing Canada into existence in this area. The Supreme Court of Canada wrote in the case of Daniels v Canada: “The Métis Nation was … crucial in ushering western and northern Canada into Confederation and in increasing the wealth of the Canadian nation by opening up the prairies to agriculture and settlement. These developments could not have occurred without Métis intercession and legal presence.”33 As such Métis political and legal organization had a direct impact on the construction of wider constitutional law structures in an important formative moment in the country’s history.
Mikmaq people live on Canada’s east coast in what is now Newfoundland, Nova Scotia, New Brunswick, Prince Edward Island, and Quebec.34 The Mikmaq were a maritime power on the north-eastern edge of the continent long before Canada was formed. They occupied broad stretches of territory in the area and welcomed or repelled fishermen References(p. 19) from Europe for perhaps a thousand years before the country came into existence. Mikmaq people generally regarded their constitutional order as springing from their relationship with the earth—which is a living being in their language.35 The presence of a legal “langscape” drawn from the living earth helped to unify Mikmaq people across their territories. It encouraged an earth-centred constitutionalism. As Professor Sakej Henderson observed: “Out of the sounds of life forces in the ecology … [a] cognitive recognition and acceptance of the interrelations of the shared space inform their languages, thus creating a shared worldview, a cognitive solidarity, and a tradition of responsible action.”36 The Mikmaq law of responsible action encouraged mutual regard and respect, making land and ecological language a bedrock of Mikmaq constitutional law.37
The word which described (and describes) Mikmaq laws for caring the earth is netukulimk.38 Netukulimk are sets of customary legal practices focused on Mikmaq obligations related to land and resource use. Non-human forms participate in these constituting governance relationships. Detailed rules and processes guided their behavior and were aimed at fostering sustainability under this rubric. The performance of these duties was and is “interpreted as an expression of Mi’kmaq law ways” and provided a management structure for working with Mikmaq law across communities.39
Although Canadian courts have not accepted this view,40 Mikmaq people believe they have long exercised this jurisdictional authority through a Grand Council structure or Santé Mawíomi.41 The Mikmaq confederacy, or Awitkatultik, divided their territory across the Maritimes into seven districts, or sakamowati. Their names were: Kespukwitk, Sipekne’katik, Eskikewa’kik, Unama’kik, Epekwitk Aqq Piktuk, References(p. 20) Siknikt, and Kespek.42 This council structure was a mechanism for encouraging deliberation and building consensus in matters that affected the entire nation.43 The Grand Council operated under the direction of the Sakamaw (Grand Chief) and Kji-Keptin (Grand Captain) and dealt with important issues throughout Mi’kma’ki. Earlier European observers who witnessed Mikmaq councils were not impressed with their non-hierarchical form. Indeed, they had difficulty attributing governmental powers to Mikmaq people. For example, Jesuit missionary Father Baird wrote:
In these assemblies so general, they resolve upon peace, truce, war, or nothing at all, as often happens in the councils where there are several chiefs, without order and subordination, whence they frequently depart more confused and disunited than when they came. [Translation]44
It was hard for some Europeans to believe Indigenous peoples exercised law and governance powers.45 These Europeans were biased and partial in their descriptions.46 Indigenous peoples were considered to be primitive.47 As Indigenous governance structures did not have kings, parliaments, or written laws they were not regarded as having anything like a constitution.48 Of course British constitutionalism was unwritten.49 Furthermore, European societies were in an almost constant of war despite hierarchical structures.50 But this did not lead church writers to conclude Western nations were References(p. 21) without law, unlike their views of Indigenous peoples. For example, when describing Mikmaq councils Jesuit writers observed:
There can be no more polity than there is commonwealth since polity is nothing more than the regulation of government of the Commonwealth. Now these savages not having a great commonwealth, either in number of people, since they are few, nor in wealth, since they are poor, only living from hand to mouth, nor ties or bonds of union, since they are scattered and wandering, cannot have great polity. Yet they cannot do without it since they are men and brethren. [Translation]51
Although European writers acknowledged the council processes within Mikmaq territory in making these observations (stating “they cannot do without it”), their bias regarding the “low” state of Indigenous political organization must be revised.52 Their views were ethnocentric. They certainly do not explain Mikmaq law from an Indigenous perspective at the time they were recorded.
In fact, the Mikmaq likewise regarded the French as having a lower level of social organization in this same period; they were likewise ethnocentric and biased in their views of Europeans. They regarded the French as living a lower form of life. This is evidenced in a leading Mikmaq Indian’s observations of French life:
Thou sayest of us also that we are the most miserable and most unhappy of all men, living without religion, without manners, without honour, without social order, and, in a word, without any rules, like the beasts in our woods and our forests, lacking bread, wine, and a thousand other comforts which thou hast in superfluity in Europe. Well, my brother, if thou dost not yet know the real feelings which our Indians have towards thy country and towards all thy nation, it is proper that I inform thee at once. I beg thee now to believe that, all miserable as we seem in thine eyes, we consider ourselves nevertheless much happier than thou in this, that we are very content with the little that we have; and believe also once for all, I pray, that thou deceivest thyself greatly if thou thinkest to persuade us that thy country is better than ours. For if France, as thou sayest, is a little terrestrial paradise, art thou sensible to leave it? … We believe, further, that you are also incomparably poorer than we, and that you are only simple journeymen, valets, servants, and slaves, all masters and grand captains though you may appear, seeing that you glory in our old rags and in our miserable suits of beaver which can no longer be of use to us, and that you find among us, in the fishery for cod which you make in these parts, the wherewithal to comfort your misery and the poverty which oppresses you.53
References(p. 22) What is clear in these exchanges is that understanding pre-contact Indigenous constitutionalism from contemporaneous sources is exceedingly problematic. Both European and Indigenous views of one another’s legal structures must be interrogated. Subsequent recollections and reconstructions must also be open to question.54 Although written and oral traditions can give us insight they can also misrepresent the field in troubling ways.55
The implications of these observations for understanding pre-contact Indigenous constitutionalism prior to European arrival are significant. Calibrating constitutional law to align with questionable pre- and post-contact distinctions problematically freezes Canadian constitutionalism.56 It synchronizes contemporary forms with historic colonial biases and replicates them in the present day.57 Originalism in Canadian constitutional law—which pins rights to contact or Crown sovereign assertions—is deeply problematic.58 Although the genealogy of law includes Indigenous and European-derived sources, when it comes to Indigenous issues Canada’s constitution would be much stronger if it focused on contemporary expressions of Indigenous law bolstered by instruments such as the United Nations Declaration of Indigenous Peoples which characterizes Indigenous rights in contemporary terms.59
Although it is important to understand Indigenous constitutional roots, Indigenous “law” should not be equated with Indigenous “history” in understanding the country’s constitution. Aside from the dangers of reproducing bias from colonial eras, treating Indigenous law as history obscures the fluidity, mobility, and contingencies of Indigenous peoples’ past and present social organization. Law and history have different disciplinary criteria.60 Historians search for evidence of past events relatively (p. 23) uncontaminated by the interpretations which flow from the passage of time.61 Lawyers seek to explicitly interpret the past in light of the present.62 Although it is important to generally understand that Canada’s constitution has strong Indigenous genealogies, the separation of history from law would also help us see Indigenous constitutionalism in a contemporary light.63
The northern and southern shores of what came to be called Lakes Ontario and Erie were occupied by Algonkian- and Iroquoian-speaking peoples prior to European contact. The Iroquoian-speaking people were organized into confederacies. The Wendat or Huron Confederacy lived north of Lake Ontario around Lake Simcoe and eastern Georgian Bay. Their confederacy was divided into four clans: Attignawantan, Arendarhonon, Attigneenongnahac, and Tahontaenrat.64 In the early 1600s they lived in 18 to 25 villages and numbered some 18,000 to 40,000 inhabitants. Over two hundred miles of roads connected their villages, and they had sophisticated relationships of war and peace with their neighbours.65 This is in the area which is now framed by the cities of Orillia, Barrie, and Collingwood. After a period of intense conflict, the Wendat were removed to various locations in Oklahoma, Quebec, and the Ohio River valley, as well as being taken into Anishinaabe and Haudenosaunee families by marriage, adoption, and other forms.66
References(p. 24) The Haudenosaunee Confederacy of the lower Great Lakes were also an Iroquoian-speaking people. They also have a legal history which pre-dates Canada.67 The Confederacy was initially composed of five nations: Mohawk, Oneida, Onondaga, Cayuga, and Seneca.68 They were later joined by a sixth nation, the Tuscarora, after this nation was forced out of its more southerly homelands.69 The Six Nations lived on the northern shores of Lakes Ontario and Erie and into the St. Lawrence Valley, and they had their largest settlements below Lake Ontario in what is now New York State.
The Confederacy’s formation is contested by academics and the Keepers of the tradition,70 with the Keepers saying it is at least a thousand years old and some scholars saying it has a post-contact genesis.71 The Confederacy had at its heart the Kaianerekowa or Great Law of Peace.72 Its focused on peace, power, and righteousness as central constitutional principles to advance collective and individual well-being.73 The Great Law takes seven days to recite in its oral form, and this is done at least annually as has occurred for generations. The Great Law brought nations and clans together in council, with elaborate procedures for deliberating and deciding on contentious issues.74 Unanimity in council decisions was (and is) a necessary part of this structure whereas each party to the deliberations retains its independence within the Great Law’s centralized decision-making structure.75 Gender also plays a significant role in the Great Law, as women have the power to select and remove chiefs in this largely matriarchal constitutional order.76
Furthermore, the Haudenosaunee had an elaborate diplomatic tradition within the constitutional spheres.77 This brought them into treaty relationships with other Indigenous and non-Indigenous nations prior to Canada’s formation.78 Haudenosaunee constitutional forms and aspirations had a significant influence on the country’s own (p. 25) treaty relationships through time and at the state’s formation.79 As I wrote elsewhere about the Haudenosaunee treaty tradition:
One of the most prominent accords relates to the Gus Wen Tah, or Two Row Wampum. The fundamental principles of the Two Row Wampum became the basis for the agreements made between the Haudenosaunee and the Dutch in 1645, with the French in 1701, and with the English in 1763–64. The belt consists of two rows of purple wampum beads on a white background. Three rows of white beads symbolizing peace, friendship, and respect separate the two purple rows. The two purple rows symbolize two paths or two vessels travelling down the same river. One row symbolizes Haudenosaunee people with their law and customs, while the other row symbolizes European laws and customs. As nations move together side by side on the river of life, they are to avoid overlapping or interfering with one another. These legal precepts are said to be embedded in subsequent agreements. Another symbol related to the Gus Wen Tah that communicates Haudenosaunee independence is the Silver Covenant Chain. It is to be pure, strong and untarnished, and bind nations together without causing them to lose their individual characteristics or their independence. Those holding the Covenant Chain are responsible for keeping their relationships bright and preventing them from breaking.80
Thus, although the internal organization of the Confederacy is impressive, what is important for constitutional purposes is that the confederacy played a significant role in Canada’s constitutional development. They helped set the stage for subsequent treaty relationships between Indigenous peoples and the Crown. They were a key ally of the British during the United States struggle for independence against Great Britain in the 1770s and 1780s.81 After the war British officials invited the Haudenosaunee to resettle on the Grand River near what is now Brantford Ontario.82 This required treaties with the Anishinaabe of the region to ensure peaceful relationships.83
Governor Simcoe who presided over this scheme envisioned the Haudenosaunee as a buffer state between British North America and the newly formed United States of America.84 Thus, constitutionally, the Haudenosaunee were regarded as separate peoples from the developing nation of Canada which would itself grow and be named (p. 26) a Dominion some 80 years later—in 1867. Unfortunately, from a Haudenosaunee perspective, British North Americans (later Canadians) failed to keep their promises to treat them as nations and allies.85 Their efforts at the League of Nations in the 1920s,86 along with the forcible removal of their traditional government from their Longhouse, signals the failure of the British and Canadian governments to honour their foundational governing relationships with the Haudenosaunee, from their perspective.87 This demonstrates that a significant strand of Canada’s constitutional genealogy has been periodically marked by its failure to acknowledge the Indigenous pluralism that underlies the nation state in many complex ways.88
Like the Haudenosaunee the Anishinaabe also had a strong Great Lakes presence and a vibrant constitutionalism. Their territory was likewise north of Lakes Ontario and Erie; it also extended across the other Great Lakes into the southern woodlands and prairies of Canada’s west. The Anishinaabe constitutional tradition is embodied in the word chi-inaakonigewin, which means the great guided way of decision-making.89 This is a verb in Anishinaabemowin (the Ojibwe language) indicating that constitutionalism in this tradition was/is focused on action-oriented relationships in this governance structure. Historically, the Anishinaabe were organized as clans in loose confederacies,90 more recently called the Council of the Three Fires in the eastern parts of their homelands.91 References(p. 27) As families and clans lay at the heart of traditional Anishinaabe constitutionalism the constitutional order was diverse as it encouraged diffusion and local place-based decision-making.
Historically, Anishinaabe people did not generally permit leaders to consolidate power within their legal tradition.92 Leadership was decentralized and most often associated with a situation and not a particular person.93 As authority was transient and moved from person to person as circumstances required, this encouraged a constitutionalism which enhanced individual agency and decision-making power.94 For example, the Anishinaabe word for Chief is Ogimaa, which means one who counts their followers.95 Followers could often only be counted on for the duration of a particular task assigned to any given leader.96 Mary Black Rogers recorded the Anishinaabe understanding of leadership in these words:
An Ojibwe root, debinimaa, has been variously translated as “boss”, “master”, “the one in charge”, or “the one in control”. But the favoured translation of a sensitive bilingual was “those who I am responsible for”. The idea of bossing is generally rejected, as is the idea of competition, yet both must occur at times. It can be seen that the area of social control, of leadership and political structure, of the various cooperating social units necessary to kinship organization and subsistence activities—all these units must be balanced somehow to accord with the rules of the system about power.97
Like the Haudenosaunee, Mikmaq and other eastern First Nations, the Anishinanaabe likewise influenced the development of Canada’s now constitutionalized treaty order (protected within section 35(1) of the Constitution Act 198298). This impact is perhaps best illustrated in the Treaty of Niagara of 1764. The Treaty of Niagara gathered over 2,000 Indigenous individuals from 22 different First Nations at the dawn of Britain’s constitutional development in central Canada.99 On the heels of the Royal Proclamation of 1763, the Treaty of Niagara was an event designed to facilitate peace, order, and friendship among Indigenous peoples and the Crown. Thus it provided a foundation for government on this land. The two-month meeting at Niagara came after the Seven Years War which saw the English defeat the French in North America, but not the Indigenous peoples.100 After Indigenous leaders continued to defeat the British, the former issued ultimatums and invitations,101 and the Crown decided to issue a Proclamation.102 This document reserved Indian land from settlement, placed authority for treaties in non-colonial (i.e. Imperial) government, and outlined a public process for treaty relationships.103 The Treaty of Niagara affirmed these principles through protocols, principles, and processes which were rooted in Anishinaabe, Haudenosaunee, and other Indigenous legal traditions.
The Treaty of Niagara promised First Nations that the Crown would recognize Indigenous governance,104 free trade, open migration, respect for Indigenous land holdings, criminal justice protection, military assistance,105 respect for hunting and (p. 29) fishing rights, and the development of peace and friendship.106 The principles of this treaty served as a template for many subsequent treaties in areas to the west. The Ontario Court of Appeal framed the constitutional significance of the arrangement in this way:
The meeting at Niagara and the Treaty of Niagara were watershed events in Crown-First Nations relations. The Treaty established friendly relations with many First Nations who had supported the French in the previous war. It also gave treaty recognition to the nation-to-nation relationship between the First Nations and the British Crown, Indian rights in their lands and the process to be followed when Indian lands were surrendered.107
These promises have not always been adequately recognized and affirmed. In that regard, as with the other examples provided in this chapter, Canada’s constitutional order has been diminished. Nevertheless, the Treaty of Niagara’s development during the first moments of British constitutional law in central Canada points to principles that puts deliberation, persuasion, and consent at the heart of our constitutional aspirations. This genealogical root is part of Canada’s living tree, and it should be more fully nurtured in future developments between the Crown and First Nations.
Cree people live in the James Bay watershed, the northern boreal forests and prairies of Canada. Like the Mikmaq and Anishinaabe, they are an Algonkian-speaking people whose constitutional traditions are also strongly influenced by their language and ecosystems.108 Cree law-keepers are called Onisinweuk and Cree law embodies foundational principles related to wahkohtowin, miyo-wicehtowin, pastahowin, ohcinewin, and kwayaskitotamowin.109 Wahkohtowin in particular has strong constitutional connotations and is References(p. 30) considered to be the principal law governing all relations.110 This law is based on relationships found in the natural world,111 and thus draws on environmental observations and analogies to bring them into the human sphere.112
Cree constitutionalism, like other systems described herein, also had a role in Canada’s broader constitutional development. Treaties signed between the Cree and the Crown, like the Treaty of Niagara and Mikmaq treaties, allowed Canada to expand with some measure of participation by Indigenous peoples.113 Although strong critiques exist about Canada’s treaty formations,114 at least some Crown representatives intended to act with the highest honour and create Canada by reference to Indigenous views and interests.115
In this light, when seen from an Indigenous perspective, it is possible to regard treaties between Aboriginal peoples and the Crown as foundational agreements in Canada.116 They underlie Canada’s political order because they allowed for the peaceful settlement and development of large portions of the country, while at the same time promising certainty for Aboriginal peoples’ possession of lands and in pursuit of their livelihoods.117 They are also important because they implement Indigenous law in Canada by grounding Aboriginal peoples’ deepest obligations to the Creator and others in a framework of reciprocity and mutual exchange. This is a vital part of Canada’s constitutional genealogy.
References(p. 31) In coming to this view the written words of a treaty document alone cannot be relied upon to provide the whole picture.118 The written sources are often biased, being written in English, not the Aboriginal language of the negotiation.119 Furthermore, the treaties use technical legal words and their transcription was usually in the hands of non-Aboriginal parties. The limitations of the written word mean that Elders’ oral traditions and perspectives must be taken into account to determine the meaning of the treaties. For example, each of the numbered treaties entered into by the Cree contains a “peace and order clause.” In the Cree language this promise is understood by the word miyo-wicehtowin. It asks, directs, admonishes, or requires people to conduct themselves in a manner such that they create positive and good relations in all their experiences. Similarly, pastahowin: “Crossing the line” was another important teaching relating to peace, order, and justice in Saskatchewan treaties. It means that certain things cannot be done without experiencing bad consequences. Finally, wahkohtowin is an important part of the meaning of the peace and order clauses because it conveys the idea that laws and duties must be followed in order to have good relationships.
Further, as part of our constitutional genealogy we should understand that First Nations peoples are not the only treaty beneficiaries. Non-Indigenous peoples also have treaty rights. Both groups are recipients of the promises made in the negotiation process. The mutuality of Indigenous and non-Indigenous peoples as beneficiaries of the treaties is overlooked because it is most often Indigenous peoples striving to assert their rights. Yet there are a number of potential inheritors of treaty rights beyond Indigenous nations, bands, and First Nation individuals. The British and Canadian Crown certainly received many benefits from the treaties. Their citizens were able to peacefully settle and develop the prairies. Non-Indigenous Canadians trace many of their rights to do certain things in this country to the consent that was granted to the Crown by Indigenous peoples in the treaty process.
The Office of the Treaty Commission in Saskatchewan recognized this gap in understanding and highlighted the mutuality of the treaty relationship in the following terms:
The people of Saskatchewan can benefit from learning more about the historical events associated with the making of the treaties as they reveal the mutual benefits and responsibilities of the parties. There is ample evidence that many people are misinformed about the history of the Canada-Treaty First Nations relations, and about the consequent experiences of Treaty First Nations communities and individuals. Until recently, the perspective of many Canadians has been to view treaties as remnants of antiquity, with little relevance to the present. Treaties were seen as frozen in time, part of Canada’s ancient history. Some no doubt still hold this view of treaties References(p. 32) as primarily “real estate transactions” modeled on business contracts and British common law. Non-Aboriginal Canadians forgot that they, too, gained rights through treaty–rights to the rich lands and resources from which they have benefited greatly. They also forgot about the partnership formed at the time of treaty-making. The benefits of the treaties were to be mutual, assisting both parties.120
When we move into the province now called British Columbia constitutional genealogies are muted or absent insofar as they positively influenced the development of Canada’s constitution.121 This is the case despite the fact that British Columbia has the richest diversity of First Nations in the country. Six of the eleven language families are found in the area. Economic and social relations were also very complex. The presence of salmon in most of the territory was a unique source of life. People could often fill their entire community’s yearly need for protein in a single run. Salmon also attracted other food sources, such as bears and smaller mammals, which would further feed the people through the year. Furthermore, salmon carcasses which escaped predation nourished the surrounding land. Vegetation grew more abundantly when these bodies fertilized the forest floor, plateau, and alpine regions. Rain is also abundant in the coastal regions of the province. This further added to the bounty Indigenous peoples enjoyed prior to European arrival which fed their social and legal systems.
Within British Columbia, First Nations dot the land, with names such as the Coast Salish, Kwakwaka’wakw, Nuu-chah-nuulth, Haisla, Gitksan, Wet’suwet’en, Tsimshian, Nisga’a, Haida, Tsilhqot’in, St’at’imc, Secwepmec, Ktunaxa, Kootney, Syilx, Nlaka’pamux, Cree, Ojibwe, and Dunne-Za.122 Each had/has its own unwritten constitutional traditions. This allowed their governments to function in ways which enriched their families and managed their environments. In making this observation we must remind ourselves that Indigenous constitutionalism in British Columbia was also imperfect, as is the case with all legal traditions. War, internal conflict, and other human flaws contributed to their challenges. This is evidenced in the abundant stories of social dislocation among First Nations.123 Indigenous peoples’ constitutional law flows not References(p. 33) only from agreement, harmony, and consensus, but also from conflict and the need to address this conflict through governmental and management structures at foundational levels.124
Unfortunately, when we examine the influence of Indigenous constitutionalism in British Columbia we find fewer inter-societal legal arrangements which allowed Indigenous forms to impact non-native constitutionalism. Except for the Douglas Treaties on small portions of Vancouver Island,125 pre-Confederation legal arrangements between the parties are almost completely absent.126 Moreover, soon after Confederation, British Columbia took active steps to explicitly deny Indigenous land and governance rights.127 Joseph Truth, land commissioner and the first Lieutenant-Governor of British Columbia, led and illustrated this movement.128 He spoke in the following way:
The title of Indians in the fee of the public lands, or any portion thereof, is distinctly denied. In no case has any special agreement been made with any of the tribes of the Mainland for the extinction of their claims of possession; but these claims have been held to have been fully satisfied by securing to each tribe, as the progress of settlement of the country seemed to require, the use of sufficient tracts of land for their wants of agriculture and pastoral purposes.129
The denial of Indigenous land rights and the resettlement of British Columbia by non-native people had a severely negative impact on Indigenous social and spatial organization in the province.130 At the same time, we should be clear that Indigenous constitutionalism was a vital force in helping First Nations critique and resist colonial conceits. In this regard it is part of the constitutional genealogy of Canada through its agonistic engagement with the nation-state.131 To round out this chapter two brief examples of Indigenous constitutionalism in British Columbia will be canvassed. This is done to illustrate the active nature of Indigenous constitutionalism in Indigenous communities despite their negative reception by the province and country more generally.
The Secwepemc people of the interior plateau of British Columbia currently live in 17 Indian Bands: Stẃecem’c/Xgat’tam (Canoe Creek/Dog Creek Indian Band), Tsqescen (Canim Lake Indian Band), Xatsull First Nation (Deep Creek/Soda Creek Indian Band), and T’exelc (Williams Lake Indian Band), Esketemc First Nation (Alkali Lake Indian Band); Sexqeltqín (Adams Lake Indian Band), St’uxwtéws (Bonaparte Indian Band), Llenllenéy’ten (High Bar Indian Band), Tk’emlúps (Kamloops Indian Band), Qw7ewt (Little Shuswap Indian Band), Sk’atsin, (Neskonlith Indian Band), Simpcw, North Thompson, Tsk’wéylecw (Pavilion Indian Band), Kepésq’t (Shuswap Indian Band), Skíitsestn (Skeetchestn Indian Band), Splatsín (Spallumcheen Indian Band), and Stil’w/Pellt’íqt (Whispering Pines Indian Band/Clinton). Their traditional territory consists of some 5,500,000 hectares of land extending north to Quesnel, southwest to Salmon Arm, west to Alexis Creek, and east to Wells Grey Park.
Like many Indigenous constitutional regimes which start with origin stories,132 Secwepemc creation stories contain principles which emphasize governmental obligations in both the human and natural worlds.133 The close relationship between human-kind and the broader natural world generated principles for humans and animals to facilitate self-governance.134 The Creator, the Trickster, and the Old One in their stories all offer words and examples about how (or how not) to organize communities. Secwepemc scholar Ron Ignace discussed this historic idea in contemporary form as follows:
The ancient history of Secwépemcúl’ecw gave us the laws, what we call “yirí7 re stsq"ey’s-kucw,” that defined us as Secwépemc, and that gave us what I call “equipment for living” (p. 35) as a people: What is traditionally marked on the land through our own history and existence on the land is mirrored in our ways of dealing with things by giving counsel to one another when issues arise that need to be dealt with and solved. “Yirí7 re stsq"eý’s kucw,” thus requires the tkw"enemíple7ten, the ongoing advisors, to implement the ways that were set forth by our ancestors.135
Secwepemc constitutional law thus had/has its adherents focus on the resources for reasoning found in the stories which could be identified when people counselled together. It could be applied through reasoning by analogy or creating distinctions between past stories and present circumstances. These stories are recorded in rock landforms throughout the territory, in ‘transformer’ sites and pictoglyphs. Reading the land and stories at origin story locations helped/helps Secwepemc people identify the sources and limits of their jurisdiction within their territories.136 Hereditary chiefs and sub-chiefs were/are responsible for asserting and bringing this jurisdiction to life in the face of challenge and conflict.137 Kinship also played an important role in governance, encouraging respect for land and resource use throughout the territory.138
The metes and bounds of Secwepemc sovereignty found in the stories as expressed by the Chiefs was used to defend their lands and governments from intrusion. As noted in the last section, First Nations constitutionalism in the province was a source of resistance. A Secwepemc petition to Sir Wilfrid Laurier in 1910 makes this point: “When [the first whites] first came amongst us there were only Indians here. They found the people of each tribe supreme in their own territory, and having tribal boundaries known and recognized by all.139 The Secwepemc people were contesting their treatment at the hands of colonial governments by drawing on their own legal traditions. Secwepemc constitutionalism in this instance intruded in Canadian political life only to be ignored by subsequent commissions, inquiries, and other national developments.140 This reinforces the point made earlier concerning British Columbia’s development and its denial (p. 36) of Indigenous governance in Canada’s unfolding constitutional processes. Nevertheless, Secwepemc traditions of governance survive in many forms throughout the territory. They await further future reference as source of authority not only for authority for Secwepmec governance but also for how Canadian constitutional relationships develop in the territory more generally.
The north-west coast of British Columbia is home to Indigenous groups that organize their constitutional structures in ways more hierarchical than other groups discussed in this chapter. The Haida, Tsimshian. Nisga’a, Tahltan, Wet’suwet’en, Dakelh, and others in the region have elaborate House and Clan structures which direct their governmental affairs. These constitutional traditions surfaced in the recent case of Delgamuukw v British Columbia which revolved around the issue of whether the Gitksan and Wet’suwet’en people had jurisdiction and/or self-government in their territories in north-western British Columbia.141 Although this issue was ultimately sent back to trial for determination the case has not been re-litigated to test the continuing existence of Indigenous governance to this point.
Despite the lack of attention to this constitutional tradition the Gitksan had/have a nuanced, strong, and sophisticated governance structure.142 The basic structure of Gitksan political, social, and legal organization is the House. A House is a matrilineal kinship group that creates rights to access land and resources and participate in varying ways in group decisions. Houses belong to four larger clans: the ganeda (frog), gisgahast (fireweed), lax gibuu (wolf), and lax skiik (eagle). Within each House a head chief (simoogit) and wing chiefs (hla ga kaaxhl simoogit) work to keep peace and order amongst the group through adaawk and antamahlaswx, which contain stories about how to manage relations across the group.143 The Gitksan use their crests and feasts to formalize the implications of these stories in each generation. As the Supreme Court of Canada reported in the Delgamuukw decision:
The most significant evidence of spiritual connection between the Houses and their territory is a feast hall. This is where the Gitksan and Wet’suwet’en peoples tell and retell their stories and identify their territories to remind themselves of the sacred connection that they have with their lands. The feast has a ceremonial purpose, but is also used for making important decisions.144
References(p. 37) Gitksan constitutionalism through the feasting structures deals with questions of “marriage, shaming (to control harmful and injurious behaviour), cleansing (to restore spirits after serious injury), restitution, birth, graduation (to celebrate achievements), naming, reinstatement (for Gitksan people who disobeyed the laws), coming of age, “smoke” (for obligations related to organizing settlement feasts), grave-stone placing, settlement (repayment of obligations arising from a death), divorce, and pole raising.”145 Gitksan constitutionalism decentralizes political power through reciprocal kinship relationships which are maintained through frequent negotiation.146
When Europeans arrived in Gitksan territory the power of Gitksan law structured the interactions. William Brown was the first European to live among the Gitksan in 1822. He was a Hudson’s Bay Company trader who set up residence on Lake Babine in 1822. He described Gitksan people as “men of property” and “possessors of lands”147 who regulated access to their territory through a “structure of nobles or chiefs, commoners, kinship arrangements of some kind and priority relating to the trapping of beaver in the vicinity of the villages”.148 Writing in his journal in 1823, Brown observed that the Chiefs “have certain tracts of country, which they claim an exclusive right to and will not allow any other person to hunt upon them”.149 Following this early period of contact there were sporadic interactions between Gitksan and European people. Unfortunately, “[t]he 1870–80’s were turbulent times in the territory with some difficulty and much hard feeling. Specific incidents, such as the accidental burning of Kitsegeucla in 1872, Youman’s murder in 1884, the killing of Kitwankool Jim (sometimes called the Skeena uprising) in 1888, and other incidents are examples of strained relations between the old and the new cultures.”150 Following this period Gitksan and Canadian constitutional law had different rules regarding governance in the territory.
Although British Columbia and Canada regard themselves as possessing overarching jurisdiction power in the area, the Gitksan people continue to believe their authority is the legitimate power in the territory. At some point in the future this issue will be tested again in the courts or addressed through negotiation. Until this occurs the Gitksan will continue to question Canada and British Columbia’s constitutional claims in their ancient territories.151
References(p. 38) 11. Conclusion
Canada’s constitutional development was influenced by Indigenous constitutionalism to differing degrees across the country. Even the failure to recognize Indigenous constitutional orders influenced Canada’s constitutional development. The country lost the benefit of struggling with this kind of diversity in earlier periods and the state had to develop discriminatory policies which transferred the Indigenous estate to people who arrived from other parts of the world. The active suppression and selective recognition of Indigenous constitutionalism by Parliament and the judiciary confirms the Supreme Court of Canada’s observation: “there can be no doubt that over the years the rights of the Indians were often honoured in the breach”.152
Despite their ambiguous treatment by Canadian courts Indigenous peoples’ constitutional orders were a vital part of the land for thousands of years prior to European arrival. These traditions continue to exist and they give structure (both positive and negative) to Canada’s broader constitutional tradition. This chapter has gestured towards the diverse constitutional pluralism that existed before Europeans arrived in North America, and which continues to underlie our country’s political and legal experience. It has shown how Canada’s constitutional genealogy cannot be recounted without accounting for Indigenous constitutionalism across the land.
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5 Roderick Macdonald, “Critical Legal Pluralism as a Construction of Normativity and the Emergence of Law” in Andrée Lajoie et al. (eds), Théories et émergence du droit: pluralisme, surdétermination et effectivité (Thémis, 1998) 9 (“Explicitly made legal rules … are not the only vehicles of normativity, but compete with a variety of indigenous and customary rules, practices and purely implicit interactional expectancies”. Ibid., 15). See also R. Macdonald, Lessons of Everyday Law (McGill-Queen’s University Press, 2002).
7 Earlier work of mine addressing this subject is found in John Borrows, Canada’s Indigenous Constitution (University of Toronto Press, 2010). Some of the information in the following paragraphs is drawn from this work.
9 For more information about the diversity and history of Indigenous peoples in what is now Canada see Olive P. Dickason, Canada’s First Nations: A History of Founding Peoples from Earliest Times (McClelland & Stewart, 1992); Arthur Ray, I Have Lived Here since the World Began: An Illustrated History of Canada’s Native Peoples (Lester Publishing, 1996); J.R. Miller, Skyscrapers Hide the Heavens: A History of Indian-White Relations in Canada (University of Toronto Press, 2000).
13 Susan Inuaraq, “Traditional Justice among the Inuit”, in Anne-Victoire Charrin, Jean-Michel Lacroix, and Michèle Therrien (eds), Peoples des Grands Nords Traditions et Transitions (Sorbonne Press, 1995) 255.
14 Mariano Aupilaarjuk, Marie Tulimaaq, Emile Imaruittuq, Lucassie Nutaraaluk, Akisu Joamie in Jarich Oosten, Frédéric Laugrand, and Wim Rasing (eds), Interviewing Inuit Elders, Volume 2: Perspectives on Traditional Law (Nunavut Arctic College, 1999) at 2.
15 For a discussion of Inuit traditional law see, generally, Mariano Aupilaarjuk, Marie Tulimaaq, Emile Imaruittuq, Lucassie Nutaraaluk, and Akisu Joamie in Jarich Oosten, Frédéric Laugrand, and Wim Rasing (eds), Interviewing Inuit Elders, Volume 2: Perspectives on Traditional Law, (Nunavut Arctic College, 1999).
18 Ibid. at 130.
22 Stone, above (n 17) at 130.
23 Ibid. at 148–150.
25 For example Inuit Qaujimajatuqangit plays an important part in Nunavut’s legislative principles. This concept advances the idea “as a living technology for rationalizing thought and action, organizing tasks, resources, family and society into a coherent whole”, Jaypetee Arnakak, “Commentary: What Is Inuit Qaujimajatuqangit?”, Nunatsiaq News, 25 August 2000. In 2008, the Nunavut Legislative Assembly passed four Acts that develop Inuit law in a democratic setting, see: the Midwifery Profession Act, S.Nu 2008, c 18; the Education Act, S.Nu 2008, c 15; the Official Languages Act, S.Nu 2008, c 10; and the Inuit Language Protection Act, S.Nu 2008, c 17. Each of these four Acts expresses Inuit aspirations in a way that combines historic and contemporary legal perspectives. These Acts build upon innovative expressions of Inuit tradition in explicit ways.
26 For a general discussion of Métis forms of legal organization see Kerry Sloan, The Community Conundrum: Métis Critical Perspectives on the Application of R v Powley in British Columbia, PhD dissertation, University of Victoria, Faculty of Law, 2016 [unpublished].
28 Canada, Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples: Perspectives and Realities, Vol. 4 (Ministry of Supply and Services, 1996) (“Métis Perspectives”) at 199.
29 Borrows, above (n 7) at 87.
32 Ibid. [24–31].
33 Daniels v Canada (Indian Affairs and Northern Development), 2016 SCC 12  citing Borrows, above (n 7) at 87–88.
34 Charles A. Martijn, “Early Mikmaq Presence in Southern Newfoundland: An Ethnohistorical Perspective, c.1500–1763” (2003) 19, The New Early Modern Newfoundland at https://journals.lib.unb.ca/index.php/NFLDS/article/viewArticle/141/238; Trudy Sable and Bernie Francis, The Language of This Land (Cape Breton University Press, 2012) 17–25.
38 Kerry Prosper, Jane McMillan, Anthony Davis, and Morgan Moffitt, “Returning to Netukulimk: Mi’kmaq Cultural and Spiritual Connections with Resource Stewardship and Self-Governance” (2011) 2(4) The International Indigenous Policy Journal 1–17.
40 R. v Marshall (2001), 191 N.S.R. (2d) 323;  2 C.N.L.R. 256 : “I was not persuaded by him that the Grand Council or the seven districts were ancient Mi’kmaq traditions. The written record proves otherwise.”
41 Ibid. For further discussion of the Santé Mawíomi see Canada, Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples, Looking Forward, Looking Back, Vol. 1 (Supply and Services, 1996) at chapter 4:
The Mawíomi, which continues into the present time, recognizes one or more kep’tinaq (captains; singular: kep’tin) to show the people the good path, to help them with gifts of knowledge and goods, and to sit with the whole Mawíomi as the government of all the Mi’kmaq. From among themselves, the kep’tinaq recognize a jisaqamow (grand chief) and jikeptin (grand captain), both to guide them and one to speak for them. From others of good spirit they choose advisers and speakers, including the putu’s, and the leader of the warriors, or smaknis.
42 Daniel Paul, We Were Not Savages, First Nations History (Fernwood, 2006) at http://www.danielnpaul.com/Mi’kmaqCulture.html.
43 See Canada, Royal Commission on Aboriginal Peoples, above (n 41). At the annual meeting, the kep’tinaq and Mawíomi saw that each family had sufficient planting grounds for the summer, fishing stations for spring and autumn, and hunting range for winter. Once assigned and managed for seven generations, these properties were inviolable. If disputes arose, they were arbitrated by the kep’tinaq individually or in council.
45 For the challenges Europeans encountered in recognizing Indigenous governance and law rights see, generally, R.A. Williams Jr., The American Indian in Western Legal Thought: The Discourses of Conquest (Oxford University Press, 1990); Robert J. Miller, Jacinta Ruru, Larissa Berendht, and Tracey Lindberg, Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies (Oxford University Press, 2010).
46 James Thomas Baker, Religion in America Vol 1 (Thomson Wadsworth, 2005) at 19; James Ronda, “We Are Well as We Are”: An Indian Critique of Seventeenth-Century Christian Missions (1977) 34 William and Mary Quarterly 66–82. For further information on the Jesuit Relations see Allen Greer, The Jesuit Relations: Natives and Missionaries in Seventeenth-Century North America (Bedford Books, 2000).
49 John H. Baker, An Introduction to English Legal History, 2nd ed. (Butterworths, 1979); Frederic W. Maitland & Francis C. Montague, A Sketch of English Legal History (G.P. Putnam and Sons, 1915) at 1–130.
50 For a discussion of law being present across nations despite European disorder at the time of contact with Indigenous peoples in North America see Laurie Benton and Richard Ross (eds), Legal Pluralism and Empires, 1500–1850 (New York University Press, 2013); Laurie Benton, A Search for Sovereignty: Law and Geography in European Empires, 1400–1900 (Cambridge University Press, 2010); Laurie Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400–1900 (Cambridge University Press, 2002).
56 Bradford W. Morse, “Permafrost Rights: Aboriginal Self-Government and the Supreme Court in R. v. Pamajewon” (1997) 42 McGill Law Journal. 1011; John Borrows, “Frozen Rights in Canada: Constitutional Interpretation and the Trickster” (1997) 22 American Indian Law Review 37; Russell Barsh and Sakej Henderson, “The Supreme Court’s Vanderpeet Trilogy: Native Imperialism and Ropes of Sand” (1997) 42 McGill Law Journal 993.
57 Discussion of the replication of colonial ideas in present jurisprudence is found in John Borrows, “The Durability of Terra Nullius: Tsilhqot’in v. the Queen” (2015) 48 University of British Columbia Law Review 701; John Borrows, “Sovereignty’s Alchemy: An Analysis of Delgamuukw v. British Columbia” (1999) 37 Osgoode Hall Law Journal 537.
59 The United Nations Declaration on the Rights of Indigenous Peoples was enacted by the United Nations in 2007, United Nations Declaration on the Rights of Indigenous Peoples, UNGA Res 61/295 (13 September 2007) [UNDRIP].
60 However, it is important to note the challenge in creating too sharp a distinction between the disciplines of history and law, see Alan Carr, What Is History? (2nd ed.) (Penguin Books, 1987) at 30: History “is a continuous process of interaction between the historian and his facts, an unending dialogue between the past and the present.”
62 For further discussion, see Helen Irving, “Outsourcing the Law: History and the Disciplinary Limits of Constitutional Reasoning” (2015) 84 Fordham Law Review 957 at 958: “History and judging operate in different fields; they belong to different disciplines. Historians and judges are not just people with different titles; they are people with different jobs.”
63 R. v Pamajewon  2 S.C.R. 821; Lax Kw’alaams Indian Band v Canada (Attorney General), 2011 SCC 56 . The courts should not demand historic proof of Aboriginal governance and other practices prior to the arrival of Europeans to recognize and affirm their contemporary necessity.
65 Wendat residency has been studied in the following sources: Conrad Heidenreich, “Mapping the Location of Native Groups, 1600–1760” (1981) Journal of the Historical Atlas of Canada 6–13; Conrad Heidenreich, “Maps Relating to the First Half of the 17th Century and Their Use in Determining the Location of Jesuit Missions in Huronia” (1966) 3 The Cartographer 103–126; Conrad Heidenreich, “Mapping the Great Lakes: The Period of Exploration, 1603–1700” (1980) 17 Cartographica 32–63; Conrad E. Heidenreich, “Mapping the Great Lakes: The Period of Imperial Rivalries” (1981) 18 Cartographica 74–108; G. Malcolm Lewis, “Changing National Perspectives and the Mapping of the Great Lakes Between 1755 and 1795” (1980) 17 Cartographica 1–31; Conrad Heidenreich, “An Analysis of the 17th Century Map ‘Nouvelle France” ’ (1988) 25 Cartographica 67–111.
69 More information about the Tuscarora, including their migration from around what is now North Carolina, can be found in Anthony Wallace, Tuscarora: A History (State University of New York Press, 2012).
71 A critique of the time-depth of the Haudenosaunee Confederacy’s historical origins is found in William Starna, “Retrospecting the Origins of the League of the Iroquois” (2008) 152 Proceedings of the American Philosophical Society 279.
77 William Fenton, “Structure, Continuity and Change in the Process of Iroquois Treaty Making” in Francis Jennings et al., The History and Culture of Iroquois Diplomacy (Syracuse University Press, 1985).
78 The Haudenosaunee could invite others into their Confederacy and Great Law; see William Fenton, The Great Law and the Longhouse: A Political History of the Iroquois Confederacy (University of Oklahoma Press, 1998) at 73.
79 John Borrows, “Wampum at Niagara: The Royal Proclamation, Canadian Legal History, and Self-Government” in Michael Asch (ed.), Aboriginal and Treaty Rights in Canada: Essays on Law, Equity, and Respect for Difference (University of British Columbia Press, 1997).
80 Borrows, above (n 7) at 75–76.
81 Barbara Graymont, The Iroquois in the American Revolution (Syracuse University Press, 1972); Max Mintz, Seeds of Empire: The American Revolutionary Conquest of the Iroquois (New York University Press, 1999).
85 The historic roots of the contemporary Haudenosaunee struggle to have their alliance status recognized in Canadian constitutional law is chronicled in Laura Devries, Conflict in Caledonia: Aboriginal Land Rights and the Rule of Law (University of Toronto Press, 2011) at 81–109, 130–159.
87 Haudenosaunee and Canadian perspectives of Six Nations governance are explored in Logan v Styres (1959), 20 D.L.R. (2d) 416 (Ontario H.C.) (upholding forcible eviction of traditional Haudenosaunee government).
88 For a fuller treatment of how Canadian law has dealt with Indigenous legal pluralism see Patrick Macklem, “Indigenous Peoples and the Ethos of Legal Pluralism in Canada” in Patrick Macklem and Douglas Sanderson (eds), Section 35 @ 25 (University of Toronto Press, 2016) at 17; Michael Asch and Patrick Macklem. “Aboriginal Rights and Canadian Sovereignty: An Essay on R. v. Sparrow” (1991) 29 Alberta Law Journal 498; Patrick Macklem, Indigenous Difference and the Constitution of Canada (University of Toronto Press, 2001).
89 A contemporary example of chi-inaakonigewin is found in Ngo Dwe Waangizid Anishinaabe, Preamble to the Anishinaabe Chi-Naaknigewin- as adopted by the Grand Council of the Anishinabek Nation in June 2011 (describing the background of the Anishinaabek constitution’s creation), http://www.anishinabek.ca/roj/download/NDWABrochureMarch2012.pdf.
90 See Lisa Brooks, The Constitution of the White Earth Nation: A New Innovation in a Longstanding Indigenous Literary Tradition, 23 Studies in American Indian Literatures 48, 62 (Winter 2011) (discussing totemic associations in the political context).
92 Richard White, The Middle Ground: Indians, Empires, and Republics in the Great Lakes Region, 1650–1815 (Cambridge University Press, 1991) at 37–40. However, Anishinaabe leadership values changed through time; see Anton Truer, The Assassination of Hole in the Day (Borealis Books, 2011) at 9–34.
93 For the application of this concept to war and diplomacy see Rebecca Kugel, To Be the Main Leaders of Our People: A History of Minnesota Ojibwe Politics, 1825–1898 (Michigan State University Press, 1998).
94 Theresa Schenck, The Voice of the Crane Echoes Afar (Garland, 1997); My First Years in the Fur Trade: The Journals of 1802-1804 (McGill-Queen’s, 2002) (co-edited with Laura Peers) at 71, citing Morton Fried, The Evolution of Political Society: An Essay in Political Anthropology (Random House, 1967) at 83.
95 Basil Johnston, an Elder from Cape Croker who taught about the Anishinaabe language, in oral communication to me said: ogimaa is related to the word agindaussoowin, which means to count. He told me that a leader counts his or her followers because he knows who they are. He said there could be different kinds of people who count followers in leadership terms. A band leader could be an ogimaa to his orchestra, as that person could count his or her follower; likewise an effective teacher could be an ogimaa for those who followed. However, see an alternative meaning published by Anton Truer, who writes:
The Ojibwe word for leadership—ogimaawiwin—literally means “to be esteemed” or “to be held to high principle”. It comes from the morphene ogi, meaning high, found in other Ojibwe words such as ogichidaa (warrior), ogidakamig (on top of the earth) and ogidaaki (hilltop).
Truer, above (n 92) at 14.
99 William G. Godfrey, Pursuit of Profit and Preferment in Colonial North America: John Bradstreet’s Quest (Wilfred Laurier Press, 1982) at 197; William Warren, an Ojibwe historian, records “twenty-two different tribes were represented” at the council at Niagara. William Warren, History of the Ojibway of Lake Superior (Minnesota Historical Society, 1885; reprinted Ross & Haines, 1970) at 219.
Three basic principles underlie the Proclamation’s detailed provisions. First, First Nations are to be protected in their lands by the Crown. Second, legitimate settlement may take place in areas designated from time to time by the Crown. Third, before an area can be settled, any native land rights must be ceded voluntarily to the Crown.
105 Johnson promised that the agreement at Niagara would be a “Treaty of Offensive and Defensive Alliance” that would include promises to “assure them of a Free Fair & open trade, at the principal Posts, & a free intercourse & passage into our Country, That we will make no Settlements or Encroachments contrary to Treaty, or without their permission.” “That we will bring to justice any persons who commit Robberys or Murders on them & that we will protect & aid them against their and our Enemys & duly observe our engagements with them.” C. Flick (ed.), The Papers of Sir William Johnson, Vol. 4 (The University of the State of New York, 1925) at 328.
• Wahkohtowin—laws governing all relations.
• Miyo-wicehtowin—having or possessing just relations as in the way Cree will conduct their lives individually or collectively.
• Pastahowin—a transgression of spiritual or natural law, sin, use of bad medicine or evil doings all of which will be responded to by the Creator.
• Ohcinewin—part of the concept of pastahowin, to suffer in retribution for an action against creation.
(1973) 42 D.L.R. (3d) 8 (N.W.T.S.C.); rev’d on other grounds 63 D.L.R. (3d) 1 (N.W.T.C.A.); aff’d on other grounds 72 D.L.R. (3d) 161 (S.C.C.).
What I trust and hope we will do is not for today or tomorrow only; what I promise and what I believe and hope you will take, is to last as long as that sun shines and yonder river flows,
Alexander Morris, The Treaties of Canada with the Indians of Manitoba and the North-West Territories, Including the Negotiations on Which They Were Based, and Other Information Relating Thereto (Fifth House Publishers, 1991) at 202.
118 For a general discussion of how courts deal with this issue see Leonard Rotman, “Taking Aim at the Canons of Treaty Interpretation in Canadian Aboriginal Rights Jurisprudence” (1997) 46 University of New Brunswick Law Journal 1.
119 Doctrines developed to address this problem are found in R. v Horseman  1 S.C.R. 901 at 907; R. v Badger  1 S.C.R. 771  ; R. v Sundown,  1 S.C.R. 393 ; R. v Marshall  3 S.C.R. 456 ; R. v. Bernard  2 S.C.R. 220 .
122 More information about First Nations in British Columbia is found in Robin Fisher, Contact and Conflict: Indian-European Relations in British Columbia, 1774–1890 (University of British Columbia Press, 1992).
123 The role of conflict as a source of Indigenous law is developed more fully in Emily Snyder, Val Napoleon, and John Borrows, “Gender and Violence: Drawing on Indigenous Legal Resources” (2014) 47 University of British Columbia Law Review 593.
124 An excellent illustration of these points is found in Val Napoleon and Hadley Friedland, “Indigenous Legal Traditions: Roots to Renaissance”, in Markus D. Dubber and Tatjana Hörnle, The Oxford Handbook of Criminal Law (Oxford University Press, 2014).
130 Cole Harris, The Resettlement of British Columbia: Essays on Colonialism and Geographical Change (Vancouver: University of British Columbia Press, 1997); Cole Harris, Making Native Space: Colonialism Resistance, and Reserves in British Columbia (University of British Columbia Press, 2002.
131 For a discussion of the agonistic nature of Canadian constitutional law see Jeremy Webber, above (n 6).
132 The role of non-human forces is found in many Indigenous legal traditions; see generally K. Llewellyn and E.A. Hoebel, “The Cheyene Way: Conflict and Case Law in Primitive Jurisprudence (Norman: University of Oklahoma Press, 1941); See E. Adamson Hoebel, The Law of Primitive Man (Atheneum, 1974); Karl N. Llewellyn and E. Adamson Hoebel, The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence (University of Oklahoma Press, 1941); Max Gluckman, Politics, Law and Ritual in Primitive Society (Aldine Publishing, 1965); Rennard Strickland, Fire and the Spirits: Cherokee Law from Clan to Court (University of Oklahoma Press, 1982); Antonio Mills, Eagle Down Is Our Law: Witsuwit’en Law, Feasts and Land Claims (University of British Columbia Press, 1994).
134 Ibid. at 597:
He also regulated the winds, telling them the proper directions from which to blow, and when to be calm. He introduced trout into many of the streams and lakes, and ordered salmon to ascend new rivers. He made many new kinds of trees, bushes, and plants to grow in places where they were required. He introduced certain kinds of animals, such as the deer, elk, bear, and hare, and told them to multiply. Before that, they had lived all together in their own worlds, underneath the ground. He told the people to be respectful to them, use them properly, and not make them angry. At that time the people were all poor and foolish, and he taught them what kinds of animals, fishes, and roots to eat. He also taught them many methods of catching, procuring, and preserving the food, and how to make certain tools and weapons. He introduced sweat-bathing and smoking, and taught the people how to make baskets, snowshoes, and canoes. He transformed the remaining bad people into animals, birds, fishes, and rocks. Where he found too many people in one place, he told them to move, and live in other places.
135 Ron Ignace, Our Oral Histories Are Our Iron Posts: Secwepemc Stories and Historical Consciousness, PhD dissertation, SFU Vancouver, 2008 [unpublished] at http://shuswapnation.org/wordpress/wp-content/uploads/2016/01/Ron-Ignace-PhD-Thesis.pdf at 4–5.
136 The use of toponyms at significant sites aided this process. Ibid. at 172–180.
137 Teir, above (n 133) at 569.
138 Ignace, above (n 135) at 185.
140 See the work of the McKenna McBride Commission: British Columbia, Report of the Royal Commission on Indian Affairs for the Province of British Columbia (1916) at http://www.ubcic.bc.ca/Resources/final_report.htm#axzz4KF1C4tlr.
143 Val Napoleon, Ayook: Gitksan Legal Order, Law and Legal Theory, PhD Dissertation, University of Victoria Faculty of Law, 2009 at http://dspace.library.uvic.ca:8080/bitstream/handle/1828/1392/napoleon%20dissertation%20April%2026-09.pdf?sequence=1 at 7.
145 Napoleon, above (n 143) at 8–9.
147 Arthur Ray, “Fur Trade History and the Gitksan and Wet’suwet’en Comprehensive Claim: Men of Property and the Exercise of Title” in Kerry Abel and Jean Friesen (eds), Aboriginal Resource Use in Canada: Historical and Legal Aspects (University of Manitoba Press, 1990) 301–315.