The Role of the Law in Native Sovereignty: A Comparison of Canadian and American Approaches to Sovereignty.

• Author: Soria, Clare J.

ABSTRACT

Indigenous peoples have fought a centuries long battle for the preservation and restoration of their culture, identity, and way of life. The American and Canadian legal systems are critical pathways to reasserting sovereignty, but have fallen short as effective tools toward autonomy and self-governance. Comparatively, the Canadian approach exemplified in Tsilhqot'in Nation v. British Columbia, fails to achieve even the most lenient definition of self-governance. The American approach, most recently defined by Justice Gorsuch in McGirt v. Oklahoma, may seem better, but ultimately falls short of true autonomy. This paper will explore the successes and pitfalls of each nation's approach and what both nations need to do to facilitate meaningful justice for Native peoples.

TABLE OF CONTENTS Abstract I. Introduction II. Sovereignty Means to Natives and the Contemporary Landback Movement a. Preservation of Culture, Autonomy and Freedom b. The Landback Movement Today III. Canada and the United States: A Fundamentally Different Legal Approach to Establishing Sovereignty--Comparison of Tsilhqot 'in Nation v. British Columbia and McGirt v. Oklahoma a. The Canadian Approach: Common Law Property, property rights as defined in Tsilhqot'in Nation v. British Columbia b. American Approach: Reliance on Text in McGirt v. Oklahoma IV. Federal Supremacy: A Shared Fundamental Flaw in Canadian and United States Legal Approaches to Indigenous Sovereignty a. Canadian Approach: Informed Consent and Common Law Supremacy b. American Approach: Congress' Role in Sovereignty: All the Power Rests in the (Wrong) People V. How should Canada and the United States Address the Shortcomings of Their Approaches to Native Sovereignty? a. Canada: True Consent, Not Simply Consultation b. Political Pathway, Meaningful Inclusion of Native Voices in American Government VI. Conclusion I. INTRODUCTION

In many American elementary schools, children are taught a mnemonic device to describe the start of American history--"Columbus sailed the ocean blue, in fourteen-hundred ninety-two." As they go throughout their education and life experiences, many come to learn that the fun rhyme they learned is not so fun at all. While Christopher Columbus did set sail in 1492 for the "new world," (1) the world he found was not new at all. Since time immemorial, Indigenous peoples had lived and established communities on that land. Since that critical "finding," Native peoples in present day United States and Canada have been subjugated to genocide, assimilation, and have been forced to tirelessly fight for their existence. The first step to writing about the plight and power of Native peoples is to understand who is being spoken about. In the United States, Native groups are Native Americans (2) and in Canada, Indigenous peoples belong to one of three groups, First Nations, Metis, or Inuit. (3)

Native rights are an international issue extending beyond the Northern American continent. Modern communication has allowed Native groups and peoples across the world to come together, to share their stories internationally, and bring light to their oppression. (4) In 2007, in response to the global advocacy of Native and Indigenous groups, the UN General Assembly, with a barely-there vote, passed the UN Declaration of Rights of Indigenous Peoples. (5)

This paper will focus on two major North American decisions, Tsilhqot'in Nation v. British Columbia and McGirt v. Oklahoma, exploring how close these courts come to Indigenous sovereignty and autonomy, where the decisions fall flat, and what could be done to close the gap.

2. WHAT SOVEREIGNTY MEANS TO NATIVES AND THE CONTEMPORARY LANDBACK MOVEMENT.

   While freedom and landback can take many forms and mean a multitude of things to Natives, one theme remains the same: the prevention of Native erasure. Before exploring the intricacies of the landback legality, it is important to understand exactly what Native peoples are fighting for.

   1. Preservation of Culture, Autonomy and Freedom.

      The NDN Collective is an Indigenous-led organization with a mission to build and uplift Indigenous peoples and power. (6) Its president, Nick Tilsen of the Oglala Lakota Nation, (7) speaks of building Indigenous power and the importance of investing in Indigenous self-determination. Tilsen describes the plight of Indigenous people, who are "so often rendered invisible, or treated as if we no longer exist." (8) Tilsen's words show that the landback movement is not simply about legal title, but for the existence of Natives themselves.

      Native existence is currently marked by deteriorating health and quality of life, as compared to other American and Canadian citizens. Native life expectancy is 5.5 years lower than the average U.S. citizen. (9) Native peoples face the highest risk of unemployment and over a third of Natives live in poverty. (10) Further, in Canada the Missing and Murdered Indigenous Women and Girls is an ongoing human rights crisis, recently reaching national media. (11) There are discrepancies in the reports of just how many Indigenous women and girls are missing and murdered in Canada. The Royal Canadian Mounted Police estimates that approximately 1,200 Indigenous women and children have gone missing between 1980 and 2021. (12) An Indigenous women's group, on the other hand, says the number is over 4,000. (13) Jennifer Brant, member of the Kanien'kehaika (Mohawk Nation) and Assistant Professor at the Ontario Institute for Studies in Education at the University of Toronto, (14) states that the violence against Indigenous women can be attributed to, among other factors: racism and misogyny; disparities in fulfillment of Indigenous women's rights; and inadequate police response to violence against Indigenous women among additional reasons. (15)

      Landback also includes healing from colonial traumas like forced assimilation and residential schools. Canada had approximately 150 residential schools where an estimated 150,000 Indigenous children were forcibly sent. (16) What happened to many of these children is a mystery. Many children never made it home, their families were left wondering where they went and if they were even still alive. (17) The New York Times reported on June 24, 2021, that the remains of "as many as 751 people, mainly Indigenous children, were found at the site of a former school in the province of Saskatchewan." (18) This finding occurs just weeks after the Tk'emlups te Secwepemc First Nation found remains of 215 children on the grounds of a former Roman Catholic-run Kamloops school in British Columbia. (19) Indigenous leaders responded, centuries of grief and frustration evident. "We are tired of being told what to do and how to do it," explained Chief Cadmus Delorme of the Cowessess First Nation. (20) The harm from these schools lies not only in the deaths of the children, but in the trauma of the ones that survived. Florence Sparvier of the Cowessess First Nation attended two residential schools where she experienced condemnation of Indigenous people and was told "our people, our parents, our grandparents didn't have a way to be spiritual because we were all heathens." (21) As the Supreme Court of Canada has acknowledged, this intergenerational trauma continues to impact survivors and their descendants. (22) Landback is critical to healing this trauma as returning control and autonomy to Indigenous peoples allows the oncoming generations of Indigenous children to experience an education that "respects and celebrates their identities and cultures." (23)

   2. The Landback Movement Today.

      Landback is far more than the restoration of the land itself. Tilsen describes the work of Indigenous peoples today as "working to revitalize our ceremonies, languages, education systems, and lifeways. We're continuing ancient traditions and anchoring a world view of Indigenous identity, connecting nature back to people. We're working against the societal silos that the wealthiest have intentionally build to separate home and education and make the economy into a vast and vague entity that no one except Wall Street brokers and high-level policymakers can really understand." (24)

      The respective stories of the Mashpee Wampanoag Tribe and Assembly of Manitoba Chiefs exemplify the Indigenous experience as the Landback movement grows and gains momentum.

      Mashpee Wampanoag are a tribe from the Wampanoag Nation in present-day Massachusetts. (25) The Mashpee Wampanoag met the Mayflower pilgrims and, shortly thereafter, much of the population assimilated into Christianity. (26) Despite this, the Mashpee Wampanoag maintain a complex and thriving tribe; with the tribe governing departments like Child and Family Services, Homeland Security, Natural Resources, Public Works, etc. (27) Today, the tribe maintains a blog online as part of their culture preservation entitled "Wampum Memories." (28) One can get a glimpse of the tribes' modern day preservation efforts through the Mashpee Wampanoag Tribal Council decision on June 9, 2021 to oppose the construction of a gun range on Joint Base Cape Cod. (29) The range would require clear-cutting 170 acres of forestland and poses a risk to a watershed protection area. (30)

      In Canada, the Assembly of Manitoba Chiefs (the "Assembly") is a modern political agency created in 1988 to "coordinate political action and technical work on common issues," (31) of 62 participating First Nations in the Province of Manitoba. This organization not only works toward First Nations' common political goals, but on the preservation of First Nations' languages, cultures, and diversity. (32) In the late 1900s the Assembly's predecessor organization worked toward formal Canadian recognition of Treaty and Aboriginal Rights. (33) Now the unified Chief, working under the Grand Chief, works to develop First Nation priorities and present a "common front." (34)

3. CANADA AND THE UNITED STATES: A FUNDAMENTALLY DIFFERENT LEGAL...