Fragile Gain: Two Centuries of Canadian and United States Policy Toward Indians

The United States and Canada share a common history in their policies toward and legal treatment of the Native Americans that historically have occupied both countries. The Royal Proclamation of 1763 established a policy of recognizing Aboriginal title and treating with Indians that was binding on the colonies that preceded both countries, and influenced both governments in later dealings with tribes. Assimilationist themes are evident as well in the national policy toward Indians in both countries. Nevertheless, historically and in the present, national policies and laws of the two governments can be contrasted. This Article sets forth a detailed comparison of the historical events surrounding white settlement and displacement of Indians from their Aboriginal lands. It further describes trends in the creation and development of Indian law, in the United States Congress and the Canadian Parliament, and in the courts of both countries. United States Supreme Court Justice John Marshall first recognized tribal sovereignty in developing a federal common law that has been extremely influential in the Indian jurisprudence of both countries. Presently in the United States, however, the Supreme Court is hostile toward tribal sovereignty and will not review federal legislative actions toward tribes, while Congress is an increasing champion of tribal self-government and economic self-development. Conversely, the Canadian Parliament continues in its assimilationist legislative attitudes, refusing to recognize inherent powers of sovereignty in tribal government. Nevertheless, aboriginal rights of the Indigenous peoples of Canada were codified in the 1982 Constitution, and the Canadian Supreme Court has recently taken unto itself the power to scrutinize legislative action in light of those rights