Indigenous Treaties & Sovereignty

• Royal Proclamation (1763) recognized Indigenous self-government and treaty relationships, challenging the narrative of extinguished Indigenous sovereignty.

Wampum Belts as Indigenous Law

• Two Row Wampum (1613) represents parallel, non-interfering coexistence between Indigenous and settler laws.
• Covenant Chain Wampum symbolizes an ongoing, renewing alliance, differing from a one-time contract.
• Ignoring Wampum diplomacy has led to broken treaty promises and the erasure of Indigenous legal traditions by Canada.
• Shared jurisdiction over land and resources, rather than sole Crown control, would result from taking Wampum treaties seriously

Precolonial Nishnaabeg Diplomacy

• Dish With One Spoon Treaty is an agreement for sustainable land sharing, emphasizing stewardship over exploitation among Anishinaabe, Haudenosaunee, and others

• Indigenous agreements were living, evolving relationships requiring renewal, unlike static colonial written treaties

• Colonial treaties were often imposed, one-sided, and static, differing from Indigenous treaties that were reciprocal, dynamic, and tied to ecological responsibility

• Canada must honor Indigenous treaty interpretations, including environmental protection and shared governance

• Violations of treaty rights to hunt, fish, and gather medicines occur through pulp mills, mining, and pollution

• Restoring balance requires "Mino-bimaadiziwin" (the good life), where treaties are not just about land, but sustainable relationships

• Indigenous people comprise 5% of Canada’s population (1.8 million), with diverse nations, languages, and governance systems

• The 1982 Constitution recognized Aboriginal and Treaty rights, but implementation remains inconsistent

Historical Treaty Timeline

• Pre-Confederation treaties (e.g., Peace & Friendship Treaties, Royal Proclamation 1763) recognized Indigenous sovereignty
• Post-Confederation treaties (e.g., Numbered Treaties 1870s) involved coercive land surrenders under colonial expansion

UNDRIP & Indigenous Self-Determination

• Article 3 (Self-Determination): Indigenous peoples have the right to govern themselves

• Article 4 (Self-Government): They can control their political, economic, and social systems

• Article 18 (Decision-Making): They must be consulted on policies affecting them

• UNDRIP challenges Canada’s top-down governance and supports Indigenous-led solutions

Wampum Diplomacy vs. Colonial Law

• Two Row Wampum signifies mutual respect where Indigenous and settler laws coexist
• Covenant Chain represents an ongoing relationship where treaties must be renewed, not ignored
• Failure to uphold these principles has led to land dispossession and resource extraction without consent

Delgamuukw Case (1997)

• Recognized Wet’suwet’en hereditary chiefs’ authority over their land
• Proved Indigenous governance existed pre-Indian Act, challenging Canada’s assumed supremacy

Origins & Definition

• Doctrine of Discovery, a 15th-century papal doctrine (e.g., Inter Caetera, 1493), justified European claims over lands deemed "unoccupied" by Christians.
• It is a legal fiction that framed Indigenous territories as terra nullius ("empty land"), erasing pre-existing sovereignty.

Legal Impact in Canada

• St. Catharines Milling (1888) used the Doctrine to deny Indigenous land rights, claiming Crown ownership
• Delgamuukw (1997) recognized Indigenous title but still relied on colonial assumptions rooted in the Doctrine
• Some modern court rulings implicitly uphold Discovery logic, despite its illegitimacy under international law

Modern Consequences

• Land Dispossession is justified, resulting in forced removal from traditional territories
• Assimilation Policies like the Indian Act, residential schools, and forced relocations stem from this ideology
• Ongoing Legal Barriers exist, thus, Indigenous sovereignty remains contested in Canadian law

Call to Action

• Canada must follow the example of some churches (e.g., Vatican, Anglican Church) and repudiate the Doctrine.
• Legal systems must decolonize property laws, including land restitution

Key Concept

• Kinship Visiting is a culturally grounded practice of community members visiting, checking in, and supporting each other, which strengthens social bonds, mental health, and cultural continuity in urban Indigenous communities

Social Determinants of Indigenous Health

• Distal (Systemic): Colonialism, racism, lack of self-determination

• Intermediate (Institutional): Poor housing, education gaps, environmental degradation

• Proximal (Individual): Food insecurity, employment barriers, access to healthcare

• Addressing physical, emotional, mental, and spiritual well-being is essential for a holistic health model

Indigenous Legal Orders & Kinship Laws

• Miyo-wicehtowin (Cree) means "Having good relations" and is the foundation of community health
• Wahkotowin (Cree/Métis) refers to laws governing family/clan responsibilities
• Kiyokewin (Anishinaabe) outlines protocols for visiting, hosting, and reciprocity

Barriers to Kinship Visiting

• Colonial Disruption: Residential schools, foster care, prisons separated families

• Loss of Land Access: Urbanization limits traditional practices

• Rebuilding kinship networks through community-led programs (e.g., Aboriginal Youth Court) is a solution

• Bimaadiziwin ("the good life") means living in harmony with land, animals, and nations

• Treaty Relationships are seen as sacred agreements with ecological responsibilities (e.g., Dish With One Spoon)

Doctrine of Discovery’s Legal Fiction

• The basis of Canadian Sovereignty is used to justify Crown control over Indigenous lands
• The Royal Proclamation (1763) recognized Indigenous sovereignty, yet Canada still relies on Discovery logic, resulting in contradiction

Indigenous vs. Colonial Views on Land

• Indigenous perspective: Land is sacred & relational, viewed as a living entity with spiritual significance, so humans have a responsibility to care for the land
• Treaties are living agreements, based on mutual respect and ongoing relationships, and require renewal and reciprocity
• Shared stewardship (e.g., Dish With One Spoon) includes collective responsibility for resources, prioritizing sustainability over ownership
• Colonial perspective: Land is property to own, treated as a commodity for economic gain, so private ownership dominates legal systems
• Treaties are seen as land surrenders as one-time transactions to acquire Indigenous territory, often ignored or reinterpreted to benefit the Crown
• Exploitation & extraction includes resources mined for profit with little regard for sustainability, as environmental destruction is justified for economic growth

Key Legal Cases & Figures

• Johnson v. McIntosh (1823) is a U.S. case that enshrined Discovery into law, influencing Canada
• John Borrows & Murray Sinclair are Indigenous legal scholars challenging Doctrine-based laws

Residential Schools & Intergenerational Trauma

• Documentary: We Were Children features survivors (Lyna, Glen) describing forced removal, abuse, cultural genocide
• Legacy: Trauma persists in addiction, family breakdown, loss of language
• Call to Justice: Truth & Reconciliation demands reparations, language revitalization, and land return

Forced Departure (pp. 13-17)

• State-Sanctioned Violence: Children were forcibly taken—sometimes by RCMP, priests, or Indian agents—using boats, cattle trucks, and black cars
• Psychological Warfare: Families were threatened with imprisonment if they resisted

The Journey (pp. 23-30)

• Dehumanizing Transport: Children were packed like cargo, often without food or water
• First Trauma: Many never saw their families again—siblings deliberately separated

Arrival (pp. 31-45)

• Cultural Erasure on Day 1: Hair forcibly cut (spiritual & cultural violation)

• Names replaced with numbers/Christian names

• Language bans—punishments for speaking Indigenous tongues

• Military-Style Discipline: Beatings, solitary confinement, and forced labor (e.g., farming, sewing)

• Cultural Genocide: Explicit goal to "kill the Indian in the child" (Duncan Campbell Scott, 1920)

• Intergenerational Trauma: Survivors lost parenting models, leading to cycles of addiction, domestic violence, and foster care

Film: We Were Children

• Lyna’s abduction at age 4 demonstrates state-coordinated family destruction
• Glen’s forced farm labor reveals economic exploitation, as children were used as unpaid workers
• Institutionalized rape and church complicity is revealed through sexual abuse by priests/nuns
• Malnutrition was deliberate (weaponized to control children) through starvation punishments
• Escape attempts & suicide were acts of resistance vs. despair under captivity
• Canada’s Deliberate Destruction: Not "accidental" abuse—policy-designed to erase Indigenous identity
• Lasting Effects: Survivors describe lifelong PTSD, shame, and lost culture

Key Figures

• John A. Macdonald (PM): Architect of genocide—used schools to "civilize savages"
• Nicholas Flood Davin (1879 Report): Recommended church-run schools (cheaper than prisons)

Institutional Statistics

• Total schools: 130+ (operating for 165 years, last one closed in 1996)
• Primary operators: Roman Catholic Church (70%), Anglican, United, Presbyterian, Methodist Churches
• Student attendance:150,000+ Indigenous children
• Documented deaths: 3,200+ (32% unnamed, 49% unrecorded causes)
• Unmarked graves: Thousands still being uncovered (e.g., Kamloops, Marieval)

Documented Abuses

• TB vaccines tested without consent through medical experiments
• Unmarked Graves: 3,200+ confirmed deaths—32% unnamed, 49% unrecorded causes
• Sexual Violence: Priests/nuns abused children—covered up for decades

Reconciliation Phases

• Truth: Survivor testimonies exposed hidden history
• Acknowledgment: Harper’s 2008 apology (but no reparations)
• Action: 94 Calls to Action—most unfulfilled (e.g., child welfare, language revival)

Key TRC Demands

• Child Welfare: Reduce overrepresentation of Indigenous kids in foster care (still >50% of Canada’s foster children), and fund Indigenous-led family services

• Justice: Investigate crimes in residential schools (few prosecutions), and drop legal battles against survivors

• Language & Culture: Federally fund Indigenous language programs (only 3/94 Calls to Action completed), and protect sacred sites from development

• Health: Address suicide crises in Indigenous youth (rates 5x higher than non-Indigenous), and improve access to traditional healing

• Education: Mandate K-12 curriculum on residential schools (patchy implementation), and return stolen cultural artifacts

• Gladue Principles (1999): Courts must consider colonial trauma (residential schools, Sixties Scoop) when sentencing Indigenous offenders, aiming to reduce over-incarceration by addressing root causes of crime

• Indigenous Homelessness: More than just lack of housing—disconnection from land, kin, and culture, rooted in colonial policies: forced relocation, reserves, Indian Act restrictions

Systemic Factors Driving Indigenous Over-Incarceration

• Residential Schools broke family structures, leading to loss of parenting skills and cycles of trauma
• Sixties Scoop & Child Welfare led to mass removal of Indigenous children, creating a foster care/prison pipeline
• Poverty & Over-Policing caused Indigenous communities to be disproportionately targeted, arrested, and jailed
• Racism in Justice System: Indigenous people are 30% more likely to be imprisoned than non-Indigenous offenders, 14% more likely to plead guilty (even if innocent), and 33% less likely to be acquitted

Key Legal Cases & Reforms

• R v Gladue (1999): Courts must consider systemic oppression in sentencing
  • Example: Jamie Gladue (Cree Métis woman) – manslaughter charge required culturally relevant sentencing
• R v Ipeelee (2012): Reinforced Gladue, emphasizing intergenerational trauma
• Gladue Courts (2001-Present): 19 specialized courts in Canada focusing on restorative justice

Indigenous Homelessness: 5 Dimensions (Thistle)

• Historic Displacement Homelessness: Loss of traditional lands → forced urbanization
• Contemporary Geographic Separation: Isolated from home communities (e.g., living in cities far from reserves)
• Spiritual Disconnection: Barriers to ceremonies, languages, and cultural practices
• Mental Disruption & Imbalance: Trauma → addiction, mental health crises
• Cultural Disintegration & Loss: Assimilation policies → loss of identity

Gladue Reports

• Purpose: Provide judges with an Indigenous offender’s life history + healing plan
• Sections: Historical background (e.g., residential school impacts), current circumstances (e.g., poverty, addiction), and recommendations (e.g., rehab, community reintegration)

Key Policies & Impacts

• Ban on Ceremonies (1884-1951) outlawed Potlatch, Sundance, and other sacred practices, and imprisonment or confiscation of ceremonial items resulted as punishment

  • Enfranchisement led to loss of Indian status for: Voting in federal elections, earning a university degree, and marrying a non-Indigenous person (gender bias: women lost status, men did not)

  • The Goal was to reduce "Indian" population by legally erasing identity

• Residential School Mandate (1920) enforced compulsory attendance under Threat of imprisonment for parents, explicitly aimed to "kill the Indian in the child" (Duncan Campbell Scott)

Legacy of Control

• Governed every aspect of life: Who is "Indian" (status/non-status), Reserve land ownership, and Band council systems
• Amnesty International called it "a form of apartheid"

How It Worked

• Indigenous people needed a written pass from Indian Agents to leave reserves, which had no legal basis, but it was enforced for 60+ years.

Purpose

• Prevented Indigenous mobility, blocked economic independence, and stopped participation in political organizing or cultural ceremonies

Film: The Pass System (2015)

• oral histories of survivors describe the hunger due to restricted hunting/fishing, families separated by arbitrary denials, and the RCMP enforced it with threats of violence

Systemic Consequences

• Cultural Erasure: Loss of languages, ceremonies, and kinship systems
• Economic Dependence: Reserves became poverty traps because of no access to jobs/markets
• Intergenerational Trauma: Sixties Scoop followed residential schools → cycles of family separation

Contemporary Dilemma

• Indian Act is still exists (amended, but not abolished), because some First Nations retain it to protect treaty rights (e.g., healthcare, education), however, there is criticism, as it perpetuates colonial control over Indigenous lives
• Calls for Replacement include Indigenous-led governance and UNDRIP implementation

Four Sources of Indigenous Law:

• Sacred Law (Creation Stories)

  • Rooted in oral traditions (e.g., Sky Woman in Haudenosaunee law)
  • Establishes relationships with land, animals, and spirits

• Deliberative Law (Consensus-Building)

  • Decisions made through talking circles and community dialogue
  • Emphasizes collective agreement over top-down rulings

• Customary Law (Long-Standing Practices)

  • Unwritten but binding norms (e.g., Dish With One Spoon treaty)
  • Guides resource sharing and conflict resolution

• Positive Law (Codified Teachings)

  • Formalized agreements (e.g., Wampum Belt treaties)

• Canadian law must recognize Indigenous legal traditions as equal, not "customs," in order for Wet’suwet’en hereditary laws to win over Canadian court injunctions

• Dabaadendiziwin (Humility): A legal principle requiring listening, learning, and reciprocity Courts/governments must engage Indigenous laws with respect, not dominance

• Judges should consider Indigenous legal traditions in rulings

• Policymaking must involve meaningful Indigenous consultation

Colonial Oppression vs. Indigenous Legal Resistance

• Indian Act banned Indigenous governance and Residential Schools disrupted the passing down of legal knowledge

• Modern Reclamation includes Land Back movements assert Indigenous jurisdiction, Gladue Courts use restorative justice, and UNDRIP implementation pushes for legal recognition of Indigenous rights

• Treaties as Living Legal Agreements are not just historical documents, but ongoing obligations

• Sacred covenants between nations, not just land deals

• Canada often violates treaty terms (e.g., resource extraction without consent)

Key Challenges Today

• Canadian courts still favor colonial laws over Indigenous ones
• Lack of awareness about Indigenous legal traditions
• Need for legal pluralism (multiple systems coexisting)

Key Statistics

• Indigenous people make up 5% of Canada’s population but 30% of federal prisoners.
• Indigenous women are the fastest-growing incarcerated group.
• Gladue Reports (since 1999) have not reduced incarceration rates—numbers keep rising.

Root Causes

• Legacy of Residential Schools: Trauma → cycles of poverty, addiction, and crime

• Systemic Racism in Policing: Over-policing of Indigenous communities

• Colonial Laws: Indian Act, pass system, and child welfare systems (Sixties Scoop) created pathways to prison

• Prisons function as modern colonial tools to control Indigenous people

• The same goals exist like assimilation, breaking family/community ties

Indigenous Alternatives to Prisons

• Sentencing/Healing Circles are community-based justice that Focus on healing, not punishment, and Elders guide the process, emphasizing accountability and reconciliation, with victim-offender dialogue to allow for meaningful resolution
• Gladue Courts are 19 specialized courts in Canada that apply Indigenous perspectives in sentencing, where Judges must consider colonial trauma

Barriers to Reform

• Lack of funding for Indigenous-led justice programs
• Resistance from punitive systems (e.g., mandatory minimum sentences)
• Racist stereotypes that label Indigenous people as "dangerous"

Historical Continuities

• Penitentiaries were designed to control "undesirable" populations (Indigenous, poor, disabled)
• Segregation units mirror residential school isolation tactics

Failed "Reforms"

• Gladue Principles (1999) and R v Ipeelee (2012) recognized systemic bias but haven’t stopped over-incarceration
• Indigenous people still: Get longer sentences, face more parole denials, and are less likely to get bail

Indigenous-Led Solutions

• Self-Determination in Justice: Community patrols (e.g., Bear Clan Patrol) instead of police, land-based healing lodges, and language/cultural programs in prisons to rebuild identity

Calls to Action

• Abolish mandatory minimums for Indigenous offenders
• Redirect prison funding to Indigenous communities
• Implement UNDRIP (self-governed justice systems)