By Dan Russell
Written via a training Aboriginal attorney, this booklet argues that Aboriginal self-government in Canada might most sensible be accomplished through a constitutional modification, now not via treaties, as has been the preoccupation of provincial governments due to the fact that 1982.
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Additional resources for A People’s Dream: Aboriginal Self-Government in Canada
Political philosophers such as Thomas Hobbes, John Locke, Jean-Jacques Rousseau, and, more recently, John Rawls have all tendered a theory of “social contract” to explain their respective ideas concerning a government’s balancing of personal obligations with individual rights. Social contract theory is essentially a tool of reasoning often used to justify or explain how autonomous individuals join together in a community and impose obligations on themselves through the establishment of a government while retaining certain basic freedoms.
Following on this decision, in the case of Draper v. United States26 in 1896, the Supreme Court again had an opportunity to clarify whether McBratney had simply been a unique exception to the Cherokee Nation principle excluding state jurisdiction. The court clarified that it had not. In another murder case involving only non-Indians, the court reaffirmed the apparently new rule established in McBratney. Where only non-Indians are involved in a crime, the state has exclusive authority to adjudicate both victim and offender.
The Cherokee Nation cases, in particular Worcester, established rules that did not distinguish between the notional kinds of jurisdiction that courts enforce today. Justice Marshall’s statements were seen as applicable to both criminal and civil areas of authority. Hence, a tribe’s jurisdiction over civil law matters was viewed as broad and limited only by acts of Congress. State jurisdiction was prohibited unless federal authority clearly permitted it. For years, these principles served tribal governments well.