Aboriginal Sovereignty and American and Canadian Claims to the Pacific Northwest: A Jurisprudential Assessment
Prior to the arrival of Europeans, North America was populated by Indigenous nations who had their own cultures, economies, social systems, laws, and governance structures. Starting with the Spanish in Florida and the Southwest, colonizing European powers and their American and Canadian successors gradually asserted sovereignty over the entire continent. But although the Indigenous nations found themselves within the United States and Canada as a result, to this day they continue to claim that they too are sovereign and that they have nation-to-nation relationships with these more recent nation-states.
While the historical events that resulted in the current situation have been described in numerous books and articles, the legal foundations for European colonization of North America are much more obscure. Did the whole process of colonization take place beyond the realm of law, so that it was merely a matter of “might makes right”? Or were there jurisprudential norms that could be applied to “legalize” colonization and provide legitimacy to the sovereignty of the new nation-states that emerged from the process?
This research project arises out of my own discomfort with the standard explanations of how the colonizing European nations and their Canadian and American successors were able to establish sovereignty over the western half of North America. Discovery, exploration, symbolic acts of possession and the like were relied upon as though western North America was vacant and so available to the first European power to claim it. By international treaties such as the Treaty of Paris of 1763, the Louisiana Purchase of 1803, and the Oregon Boundary Treaty of 1846, European nations and the United States drew lines on maps and transferred huge expanses of territory among themselves with scant regard for the Indigenous peoples who had lived in North America for thousands of years. When it came to sovereignty and title to territory, it seems that these peoples did not count.
More disturbing still, to this day the United States and Canada continue to base their original claims to territorial sovereignty in North America on the same shaky foundations. This is as true of the courts as it is of the American and Canadian governments. As far back as 1823, Chief Justice Marshall of the United States Supreme Court said in Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823), that the European powers acquired their North American colonies by discovery, and this is still the accepted dogma. As recently as 1990, the Supreme Court of Canada, which is supposed to be a neutral decision-maker in disputes between Indigenous people and the Canadian government, accepted Canada’s territorial claims in R. v. Sparrow, [1990] 1 S.C.R. 1075, by referring to Johnson v. M’Intosh and saying that “there was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title, to such lands vested in the Crown.”
The main problem with these standard explanations is that they fail to take account of the fact that the Indigenous peoples were independent nations with sovereign rights that pre-dated, and therefore should have prevailed over, European, American, and Canadian claims. I think the roots of this problem lie in misplaced reliance on European normative standards, derived from the so-called law of nations (now international law) and the domestic laws of the colonizing powers, for evaluating claims to territorial sovereignty in North America. While these European legal norms were probably appropriate for assessing territorial claims among the European powers, using them to deny sovereignty to the Indigenous nations was Eurocentric and illegitimate. More appropriately, Indigenous systems of law and intersocietal law governing the relationships between those nations and other peoples should have been relied upon in this context.
This research project will therefore be directed toward establishing a theoretical and practical approach for evaluating European, Canadian, and American claims to sovereignty in western North America. This approach will provide a framework for analysis that can then be applied in specific geographical regions and in regard to specific Indigenous nations, particularly in the Pacific Northwest.
Geographers and historians for the most part seem to have taken European, American and Canadian assertions of sovereignty in the West largely at face value, focusing instead on how the territory was divided up and then settled by the colonizing powers (e.g., see Barman; Goetzmann; Hawgood; Meinig; Merk; Milner et al). While it is not surprising that geographers and historians have tended to avoid assessing the legal grounds for European claims to sovereignty in their accounts of colonization, jurisprudential analysis is essential if the validity of these European, and hence American and Canadian, claims are to be properly assessed. However, in order for this analysis to be undertaken, one must first identify the appropriate legal system (or systems) for evaluating these claims. I think there are at least five bodies of legal norms that might potentially be relevant for this purpose: (1) the law of the European power asserting sovereignty; (2) the law of nations; (3) the laws of the Indigenous nations inhabiting the region; (4) intersocietal law developed over time out of the relations between the Indigenous nations and the colonizing European powers; and (5) natural law (see Slattery, 1991; Webber).
The bodies of law usually relied upon to assess European claims to sovereignty are the domestic law of the European nation making the claim and the law of nations (see Anaya; Goebel; Green and Dickason; Lindley; Moore; Roberts-Wray; Slattery, 1979; von der Heydt). However, for a particular body of law to be applicable it must extend to the territory and the people in question. The research will analyze and question the applicability of both European domestic law and the law of nations to territories and Indigenous peoples that were outside the geographical and jurisdictional scope of those bodies of law. It will then assess the applicability of the alternative bodies of law mentioned above, namely the laws of the Indigenous nations, intersocietal law, and natural law.
Once the applicability of the relevant bodies of law has been assessed, European claims to sovereignty in the Pacific Northwest will be evaluated in light of the conclusions reached. The juridical effect of European assertions of sovereignty by such means as discovery, exploration, symbolic acts of possession, papal grants, royal charters, and the like will be questioned. This will lead to an examination of international treaties whereby Spain, Russia, Great Britain and the United States purported to divide up the Pacific Northwest among themselves and acknowledge one another’s territorial claims. Contrary to the standard view, it will be argued that these treaties could not have distributed territories over which the signatories had not yet acquired sovereignty because the territories in question were still occupied and controlled by Indigenous nations.
The conclusions I expect to reach regarding the effectiveness of European assertions of sovereignty and international treaties will result in a re-evaluation of the means by which the European powers, and their American and Canadian successors, could have obtained sovereignty over the Pacific Northwest. Dismissing the possibility of acquisition of sovereignty by original means such as discovery, it will be argued that the only way sovereignty could have been legitimately acquired would have been derivatively from the Indigenous peoples. While outright conquest, or “might makes right”, was probably utilized in some instances, the primary means by which sovereignty would have had to be acquired in the Pacific Northwest was by treaty with the Indigenous nations.
The research project will then identify and discuss the implications of the conclusions reached regarding the means by which European, American, and Canadian sovereignty could have been acquired in the Pacific Northwest generally, and British Columbia in particular. If sovereignty had to be acquired from the Indigenous nations by treaty, this means that Indigenous rights of self-government are rooted in nation-to-nation relationships, arising in part from treaties. In Canada, it also means that these relationships and the governance rights inherent in them are recognized and affirmed by section 35(1) of the Constituition Act, 1982. The project will include discussion and analysis of these matters.
The project’s conclusions respecting sovereignty have profound implications for non-treaty areas of British Columbia. If European sovereignty could not have been acquired there by original means such as discovery and, in the absence of conquest, had to be negotiated with the Indigenous nations, Canada’s claims to sovereignty in British Columbia may lack jurisprudential support and hence legitimacy (see Asch and Macklem; Asch). Treaty negotiations in British Columbia are thus as much about sovereignty and the sharing of jurisdiction as they are about lands and resources. The project will therefore conclude with a discussion of the relevance of this research to these vital and on-going treaty negotiations.
Bibliography
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