Canada | Law | Opinion

Harold Monteau: Lessons from Canada in indigenous law and policy

Tuesday, June 21, 2016

Metis youth celebrate National Aboriginal Day, held every year on June 21. Photo from Metis National Council / Twitter

Métis people in Canada are celebrating a landmark court decision that recognizes their right to be treated as indigenous. In part three of his series, Harold Monteau, a member of the Chippewa Cree Tribe who is of Metis descent, compares similar developments in Indian law and policy in the United States:

The history of the development of Federal Indian Law in the U.S. reveals a marked similarity to the development of Canadian Law regarding the United States’ relationship with individual Indians as individuals as well as Tribes. As with Canada, the U.S. has assumed jurisdiction over the Indian Tribes and Indian individuals when it was “convenient” to do so and/or to protected some “interest” that the United States asserted, especially with regard to land and resources, but also with regard to the lives of individual Indians, be they Treaty Reservation Indians or not.
As with Canada, much of U.S. Indian Policy, since the U.S. became an independent nation, has been driven by the need to control “dominion” over, and settlement of. what was previously Indian Lands. First the Colonial Government(s) and then the successor United States Government, though various enactments, asserted control over who could “Treat” with the Indians for land cessions, ultimately claiming an “exclusive” right to make Treaties and pass laws with regard to Indians. These were called the “Intercourse Acts” or “Non-Intercourse Acts”. The Trade and Intercourse Act of 1834 is an example of one such Act in which the U.S. exercised its “exclusive” right to legislate in the field of Indian Affairs. Interestingly, this Act is both an exercise of the U.S. claiming exclusive “Dominion” over “Indian Country, while at the same time exercising its claimed exclusive jurisdiction over the conduct of individuals within Indian Country for purposes of Criminal Jurisdiction while exempting individual Indians. The 1834 Act provides “That so much of the laws of the United States as provides for the punishment of crimes committed within any place within the sole and exclusive jurisdiction of the United States, shall be in force in the Indian country: Provided, the same shall not extend to crimes committed by one Indian against the person or property of another Indian.”

Get the Story:
Harold Monteau: Non-Status Indian in the United States: Part 3 of Daniels v. Canada/Crown (Indian Country Today 6/21)

Supreme Court of Canada Decision:
Daniels v. Canada (April 14, 2016)

Federal Court of Appeal Decision:
Canada v. Daniels (April 17, 2014)