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The generally disadvantaged position of native people in Canada is well known. Substandard housing, inadequate health care, shocking mortality rates, over-incarceration, the abnormally high incidence of child apprehensions, unemployment - the list seems almost endless. This tragic situation is already thoroughly documented in Canada. In addition, it is compounded by a lack of understanding and confusion about the dominant legal system's rules and goals, which is clearly not surprising for at least two reasons.
Canadian law, and the legal institutions which apply it, has only rarely considered the Indian, Metis, and Inuit peoples in a separate light from the rest of society. Critical differences in culture, language, religion, and perceptions of the surrounding world have been ignored. The system largely has been unable or unwilling to respect these differences, and accommodate them in appropriate ways. Most Canadians can understand the most basic principles as they flow from a European value system. This is not true for the original inhabitants of this land, and thus the impact is far greater. It is the opinion of Professor Morse that the presence of the Indian tribal court system, along with the legislative power of the tribal council, has minimized these disastrous consequences in the U.S. within the limited sphere in which their jurisdiction still continues. This is particularly true in regards to family and criminal law matters. Thus, it appears appropriate for us in Canada to seriously consider the implementation of a similar institution here. It could promote the self-determination of native people, and strengthen the ability of native communities and their residents to resolve social and family problems. The scope and legitimacy of the "Tribal Court" system in the United States is primarily founded on the residual sovereignty retained by Indian tribes. This dependent sovereignty is also the determinative factor in regulating the relationship between the tribal courts and the state and federal courts. An analysis of the tribal court system must then proceed from an understanding of Indian Sovereignty.
Original Indian sovereignty has only disintegrated (in the U.S.) as a result of the arrival of hundreds of thousands of colonists, who brought with them their own legal system and values.
Felix Cohen, in his work, The Handbook of Federal Indian Law, summarized this relationship by saying:
"From the earliest years of the Republic the Indian tribes have been recognized as "distinct, independent, political communities", and as such qualified to exercise powers of self-government, not by virtue of any delegation of powers from the federal government, but rather by reason of their original tribal sovereignty. In point of form it is immaterial whether the powers of an Indian tribe are expressed and exercised through customs handed down by word-of-mouth or through written constitutions and statutes. In either case, the laws of the Indian tribe owe their force to the will of the members of the tribe.
As the political and military independence between Indian tribes and the government in the U.S. began to dissolve, so did the complete legal independence. However, it is important to realize that the original policy of the European powers was to recognize the indigenous population as belonging to independent nations, although different in form from themselves. This was clearly the position of the British government, as evidenced by the numerous instructions directed to the colonial governors culminating in the Royal Proclamation of 1763.
Indian nations were independent, but were now within British territory. Thus, the Proclamation contains provisions for the nations, or tribes of Indians, not to be disturbed on their reserves; that no trespass would be allowed for surveys, patents of lands, and that the hunting grounds would be maintained as hunting grounds ... and that any lands not included within the limits of the three (new) governments would be available for use by the Indians.
At present, in the United States, there are three distinctly different types of court systems on some 60 to 120 various reservations. These three types are called 1.) the traditional courts, 2.) the Courts of Indian Offences, and 3.) the Tribal Courts.
The Traditional Courts are those few that have survived the entire onslaught of western `civilization', and remained intact; about 18 of these types of courts still operate successfully.
The history of the Courts of Indian Offenses is a shameful one. Approximately 17 of them still exist as remnants of a dishonourable past under the direct control of the secretary of the Interior. The BIA appoints all judges to four-year terms, subject to the approval of the tribal council. Any adult member of the tribe can be appointed to the bench, so long as he has no felony convictions. No legal education or knowledge of customary law is required.
These courts apply all relevant federal law, rulings of the Department of the Interior, and any tribal ordinances or customs that are not inconsistent with federal law. These courts also apply the specific provisions of the Code of Indian Tribal Offenses, as established by the federal government.
The final type of functioning Indian court is generally known as the tribal court. These courts were established under the constitutions and tribal codes of law and order adopted by many tribal governments in accordance with the provisions of the Indian Reorganization Act. At least 51 tribes presently have tribal courts created in this fashion. Many of these courts are similar in operational style and in applicable law to the courts of Indian Offenses, because of the total adoption of the same, BIA - supplied, moral code.
INDIAN TRIBAL COURTS IN CANADA
The idea of the possibility (or probability) of Indian Tribal Courts in Canada is not a new one. Some years ago, it was British policy solely to restrict Indian jurisdiction in reference to white settlers in criminal matters, that is, Indian nations were to be left alone to govern their own fate.
The Canadian colonies encroachment into the inner workings of Indian Nations (law) did not begin until 1869, and even then the involvement was (initially) quite minimal.
This situation has changed drastically in the last few decades, as assimilationistic policies have been reflected by the actions of the Department of Indian Affairs.
Indian agents were given direct responsibility for administering and governing life within Indian reserves, placing the Indian leadership in a subordinate role. The effect of this approach, along with provisions of the Indian Act designed to suppress Indian culture, has been to largely displace Indian self-determination, internal sovereignty, and customary law.
Law has been used by the dominant society as a peaceful means of promoting the transformation of Indian people into the image desired by the government of the day, whether that be as farmers, or as workers.
What little Canadian law that does exist, (pertaining directly to the Indian people) generally displays acceptance of Indian customary law governing family matters, even where a non-Indian is one of the parties. The present position, is that federal legislation applies to status Indians both on, and off, Reserve, even when it conflicts with Treaty rights. Provincial legislation applies to status Indians off-reserve subject to treaty rights, and applies on-reserve subject to treaty rights and the Indian Act.
The development of Indian Tribal Courts in Canada will involve the transfer of jurisdiction from the general courts (in the provinces) to Tribal Courts.
In addition, to play a meaningful role in promoting self-determination and alleviating the social costs caused by the conflict of value differences between the native and non-native communities, these tribal courts will need (both) to apply the general law in different ways, and to apply (different) laws created specifically by native people.
Several of the mechanisms of establishing tribal courts can be attempted unilaterally by Indian and Inuit governments today ... (other methods will require federal action - at the very least - and may necessitate provincial approval as well). Both Indian and Inuit governments could assert that their originally full sovereignty has survived, although it has been impaired by treaties and federal legislation. A band council could pass a bylaw to administer justice and establish a tribal court system, by relying in particular on certain sections within the Indian Act itself. Also, a number of these sections could also be used to justify the appointment of individuals as judges, and the payment of their salaries.
The option selected for establishing the court system will determine the jurisdiction (in terms of subject matter) ranging from the present band by-law power, up to (possibly) all legislative authority depending upon federal and provincial co-operation. The territorial authority of the court would (likely) be limited to the external boundaries of the reserve.
Therefore, it's probable that the court would have jurisdiction over any "person", whether it be human or a corporate entity, when carrying out any activities within the territory of the reserve.
There are other options available under the Indian Act which would require approval of the federal government, or separate legislation could be created to specifically establish Indian and/or Inuit Tribal Court systems, perhaps as part of a newly revised Indian Act.
The general law, and legal institutions would continue to have jurisdiction over off-reserve events, (similar to the United States). Some basic problems with institution of tribal courts include the small populations of most Indian and Inuit communities; the severe economic and social problems; and the degree of internal political and family conflict. However, it is the opinion of the author that these difficulties can be overcome, but may require, a co-ordinated effort between bands on a regional, or provincial basis.
Establishment of Indian and Inuit Courts would be extremely advantageous in promoting self-determination within the Canadian state, and in dramatically ameliorating the negative consequences which flow from the present position.
The time is appropriate.
With the far-reaching discussions occurring in major revisions to the Indian Act, and the Canadian constitutional framework, the door is (now) open for new, innovative approaches to resolving old problems.
What seemed at best unlikely several years ago is now being regarded seriously and in some areas accepted as part of the future of Canada.
Although there will be logistical difficulties and political problems, the idea may very shortly become a reality.
It is Professor Morse's belief that this idea should become a reality as a very major, and positive step.
A re-write and revision of a paper by Bradford W. Morse... Professor at Law, Common Law Section, University of Ottawa, November, 1979.
"INDIAN TRIBAL COURTS IN THE UNITED STATES - A MODEL FOR CANADA??"
*** This paper is soon to be published by the Native Law Centre in Saskatoon, and will be available from it***