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Aboriginal Governments and the Charter: Lessons from the United States

  • Kent McNeil (a1)

Abstract

The debate over the application of the Canadian Charter of Rights and Freedoms to Aboriginal governments remains unresolved. In the author's opinion, insufficient attention has been paid in Canada to the American experience with the application of civil rights guarantees to tribal governments. This experience reveals that for the past forty years American policy-makers and judges have been struggling with this contentious issue, and have attempted to achieve a balance between the protection of individual rights and preservation of tribal sovereignty and traditions. In light of the American experience, the author argues that a simplistic yes or no answer to the Charter's application to Aboriginal governments is inappropriate. In particular, more consideration has to be given to the impact of the Charter on Aboriginal cultures and to the role of Canadian courts in adjudicating disputes that arise within Aboriginal communities.

Le débat entourant l'application de la Charte canadienne des droits et libertés aux gouvernements autochtones se poursuit. Selon l'auteur, on n'a pas assez tenu compte au Canada de l'expérience américaine de l'application des droits garantis à ces gouvernements. Cette expérience montre qu'au cours des quarante dernières années décideurs politiques et juges se sont affrontés à cette question et ont tenté de trouver un équilibre entre la protection des droits individuels et le respect de la souveraineté et des traditions autochtones. À la lumière de l'expérience américaine, il serait trop simpliste de répondre par un simple oui ou non à la question de l'application de la Charte aux gouvernements autochtones. l'faudra notamment réfléchir à l'impact de la Charte sur les cultures autochtones et au rôle des tribunaux canadiens dans l'adjudication de disputes à l'intérieur de communautés autochtones.

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1 Schedule B to the Canada Act 1982, (U.K.) 1982, c. 11.

2 McNeil, K., “Aboriginal Governments and the Canadian Charter of Rights and Freedoms” (1996) 34 Osgoode Hall L.J. 61, republished in McNeil, K., Emerging Justice? Essays on Indigenous Rights in Canada and Australia (Saskatoon: University of Saskatchewan Native Law Centre, 2001) 215 [hereinafter Emerging Justice?].

3 Ibid. at 63–64 in Emerging Justice? at 217.

4 R.S.C. 1985, c. 1–5.

5 The other forms of Aboriginal government discussed in the article are Cree local government under the James Bay and Northern Quebec Agreement and Sechelt Indian government under the Sechelt Indian Band Self-Covernment Act, S.C. 1986, c. 27. A more recent example can be found in the Nisga'a Final Agreement, initialed August 4, 1998. Chapter 2, para. 9, of this Agreement provides: “The Canadian Charter of Rights and Freedoms applies to Nisga'a Government in respect of all matters within its authority, bearing in mind the free and democratic nature of Nisga'a Government as set out in this Agreement.”

6 Nunavut Act, S.C. 1993, c. 28, generally in force 1 April 1999.

7 Note that s.32(1)(a) of the Charter provides that it applies “to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and the Northwest Territories”. Given that the Constitution is a “living tree” that has to be interpreted so as to apply in contemporary contexts (Edwards v. Canada (A.G.) [1930] A.C. 124 at 136 (P.C.)), the courts would probably hold the Nunavut Government to be subject to the Charter, as are the governments of the Yukon and Northwest Territories.

8 This issue is discussed in Emerging Justice?, supra note 2, where it is concluded that the Charter does not apply to these governments. For other perspectives, see P. W. Hogg and M.E. Turpel, “Implementing Aboriginal Self-Government: Constitutional and Jurisdictional Issues” in Royal Commission on Aboriginal Peoples, Aboriginal Self-Government: Legal and Constitutional Issues (Ottawa: Minister of Supply and Services, 1995) 375 at 415–20; Koshan, J., “Aboriginal Women, Justice and the Charter. Bridging the Divide?” (1998) 32 U.B.C.L. Rev. 23; Macklem, P., Indigenous Difference and the Constitution of Canada (Toronto: University of Toronto Press, 2001) at 194210; Report of the Royal Commission on Aboriginal Peoples (Ottawa: Minister of Supply and Services, 1996), vol. 2: Restructuring the Relationship [hereinafter RCAP Vol. 2] at 226–34; Wilkins, K., “… But We Need the Eggs: The Royal Commission, the Charter of Rights and the Inherent Right of Aboriginal Self-Government” (1999) 49 U. of T. L.J. 53.

9 E.g. see Boldt, M. & Long, J.A., “Tribal Philosophies and the Canadian Charter of Rights and Freedoms” in Boldt, M. & Long, J.A., eds., The Quest for Justice: Aboriginal Peoples and Aboriginal Rights (Toronto: University of Toronto Press, 1985) 165; Borrows, J., “Contemporary Traditional Equality: The Effect of the Charter on First Nation Politics” (1994) 43 U.N.B.L.J. 19; Isaac, T. & Maloughney, M.S., “Dually Disadvantaged and Historically Forgotten?: Aboriginal Women and the Inherent Right of Self-Government” (1992) 21 Man. L. Rev. 453; Long, J. Anthony and Chiste, K. B., “Indian Governments and the Canadian Charter of Rights and Freedoms” (1994) 18 Am. Indian Culture & Rsch. J. 91; Mclvor, S.D., “Self-Government and Aboriginal Women” in Jackson, M.A. & Banks, N.K., eds., Ten Years Later: The Charter and Equality for Women (Vancouver: Simon Fraser University, 1996) 77; Monture-Angus, P., Journeying Forward: Dreaming First Nations' Independence (Halifax: Fernwood Publishing, 1999) at 135–57; Nahanee, T., “Dancing with a Gorilla: Aboriginal Women, Justice and the Charter” in Royal Commission on Aboriginal Peoples, Aboriginal Peoples and the Justice System (Ottawa: Minister of Supply and Services, 1993) 359; Native Women's Association of Canada, Statement on the “Canada Package” (Ottawa: Native Women's Association of Canada, 1992); Schwartz, B., First Principles, Second Thoughts: Aboriginal Peoples, Constitutional Reform and Canadian Statecraft (Montreal: Institute for Research on Public Policy, 1986) at 365–97; Turpel, M.E./Aki-Kwe, , “Aboriginal Peoples and the Canadian Charter of Rights and Freedoms: Contradictions and Challenges” (1989) 10 Can. Woman Studies 49; Turpel, M.E., “Aboriginal Peoples and the Canadian Charter: Interpretive Monopolies, Cultural Differences” (19891990) 6 C.H.R.Y.B. 3; RCAP Vol. 2, supra note 8 at 226–34; Wilkins, supra note 8; Russell, D., A People's Dream: Aboriginal Self-Government in Canada (Vancouver: University of British Columbia Press, 2000) at 103–30.

10 With the exception of Schwartz, supra note 9, Canadian commentators generally have not sought guidance from the American experience in this context. While Russell, supra note 9, does draw very useful insights from American law, he does not go into the application of civil rights guarantees to tribal governments.

11 30 U.S. (5 Pet.) 1 (1831).

12 31 U.S. (6 Pet.) 515 (1832).

13 United States v. Wheeler, 435 U.S. 313 (1978) at 322–23. See also United States v. Kagama, 118 U.S. 375 (1886) esp. at 381–82; United States v. Mazurie, 419 U.S. 544 (1975) at 557.

14 Congressional power over the Indian tribes comes from the U.S. Constitution, especially art. I, § 8, cl. 3, which authorizes Congress to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Although this power is said to be “plenary”, it is subject to constitutional limits and the federal trust responsibility owed to the Indian tribes: see Cohen, F.S., Handbook of Federal Indian Law, 1982 ed. (Charlottesville: Michie Bobbs-Merrill, 1982) at 207–28 [hereinafter Cohen's Handbook]; Deloria, V. Jr., and Lytle, C.M., American Indians, American Justice (Austin: University of Texas Press, 1983) at 4045 [hereinafter American Indians, American Justice]; Wilkinson, C.F., American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy (New Haven: Yale University Press, 1987) at 7886. For critical commentary on the plenary power, see Newton, N.J., “Federal Power over Indians: Its Sources, Scope, and Limitations” (1984) 132 U. Penn. L. Rev. 195; Hauptman, L. M., “Congress, Plenary Power, and the American Indian, 1870 to 1992” in Lyons, Oren et al. , Exiled in the Land of the Free: Democracy, Indian Nations, and the U.S. Constitution (Santa Fe: Clear Light Publishers, 1992) 317; Wilkins, D.E. & Lomawaima, K.T., Uneven Ground: American Indian Sovereignty and Federal Law (Norman: University of Oklahoma Press, 2001) at 98116.

15 United States v. Wheeler, supra note 13 at 323. See Cohen's Handbook, supra note 14 at 229–57; Canby, W.C. Jr, American Indian Law in a Nutshell, 2nd ed. (St. Paul: West Publishing, 1988) at 6979.

16 163 U.S. 376 (1896).

17 Ibid., 384. For a critical assessment of this decision, see Schwartz, supra note 9 at 366–70. For affirmation of the ruling in Talion v. Mayes that the U.S. Bill of Rights does not apply to the Indian tribes, see Duro v. Reina, 495 U.S. 676 (1990) at 693; Nevada v. Hicks, 121 S.Ct. 2304 (2001) at 2323 (Souter J.).

18 American Indians, American Justice, supra note 14 at 127.

19 43 Stat. 253, 8 U.S.C. § 1401(b) (1995).

20 Chaudhuri, J., “American Indian Policy: An Overview” in Deloria, V. Jr., ed., American Indian Policy in the Twentieth Century (Norman: University of Oklahoma Press, 1985) 15 at 30. See also Note, “The Constitutional Rights of the American Tribal Indian” (1965) 51 Virginia L. Rev. 121 at 135 [hereinafter “Constitutional Rights”] where it is argued that the extension of American citizenship to Indians generally should have subjected tribal governments to constitutional guarantees.

21 272 F.2d 131 (10th Cir. 1959).

22 Ibid. at 135. See also Oliver v. Udall, 306 F.2d 819 (D.C. Cir. 1962). In Toledo v. Pueblo de Jemez, 119 F.Supp. 429 (D.N.M. 1954), an attempt to challenge a tribal council's alleged denials of religious freedom as violations of the Civil Rights Act, 42 U.S.C. § 1983 (1958), also failed in federal court. For discussion, see “Constitutional Rights”, supra note 20 at 131–32.

23 249 F.2d 915 (10th Cir. 1957), cert, denied 356 U.S. 960 (1958). See discussion in Deloria, V. Jr., and Lytle, C., The Nations Within: The Past and Future of American Indian Sovereignty (New York: Pantheon Books, 1984) at 204–05 [hereinafter Nations Within]. Compare Martinez v. Southern Ute Tribe, 150 Colo. 504, 374 P.2d 691 (S.C. Colo., En Banc, 1962).

24 219 F.Supp. 19 (D. Mont. 1963).

25 Ibid. at 21. See also Barta v. Oglala Sioux Tribe, 259 F.2d 553 (8th Cir. 1958), cert. denied, 358 U.S. 932 (1959); Twin Cities Chippewa Tribal Council v. Minnesota Chippewa Tribe, 370 F.2d 529 (8th Cir. 1967) at 533. It seems, however, that habeas corpus would lie against a detainment order issued by a tribal court in violation of the Constitution if that court was established under an Act of Congress and was in effect acting as a federal agency: See Colliflower v. Garland, 342 F.2d 369 (9th Cir. 1965), and Settler v. Yakima Tribal Court, 419 F.2d 486 (9th Cir. 1969), cert, denied, 398 U.S. 903 (1970). Also, the prohibition against slavery in the Thirteenth Amendment, which limits private as well as federal and state actions, has been held to invalidate a tribal custom permitting slavery. See In re Sah Quah, 31 F.327 (D. Alaska 1886), and Cohen's Handbook, supra note 14 at 665, 671–72 (note, however, that In re Sah Quah was decided before Taitón v. Mayes, supra note 17).

26 For a survey of instances of this, see Fretz, B.D., “The Bill of Rights and American Indian Tribal Governments” (1966) 6 Nat. Res. J. 581 at 591–600. This immunity from the Bill of Rights is part of the broader sovereign immunity which the tribes enjoy: see Turner v. United States, 248 U.S. 354 (1919); United States v. United States Fidelity Co., 309 U.S. 506 (1940) at 512. See also Lazarus, A. Jr., “Title II of the 1968 Civil Rights Act: An Indian Bill of Rights” (1969) 45 N.D.L Rev. 337 at 340–44; Note, “The Indian Bill of Rights and the Constitutional Status of Tribal Governments” (1969) 82 Harv. L. Rev. 1343 at 1346–53 [hereinafter “Indian Bill of Rights”].

27 E.g., legal commentators used instances of violations of civil rights by tribal governments to support their argument that the Bill of Rights should be applied to those governments: see “Constitutional Rights”, supra note 20; Note, “The American Indian – Tribal Sovereignty and Civil Rights” (1966) 51 Iowa L. Rev. 654; Barsh, R.L. & Henderson, J.Y., The Road: Indian Tribes and Political Liberty (Berkeley: University of California Press, 1980) at 254. See also the reports cited in note 33, infra.

28 Pub. L. 90–284, Titles II–VII: see infra notes 45–47.

29 Burnett, D.L. Jr., “An Historical Analysis of the 1968 ‘Indian Civil Rights’ Act” (1972) 9 Harv. J. on Leg'n 557 at 575.

30 Whether Indians generally were in a position to make use of these protections is another matter. During the hearings which Ervin's subcommittee ended up holding, testimony revealed that most complaints involved violations of civil rights in “the enforcement of state criminal laws by local authorities in communities relatively near Indian reservations,” ibid. at 584 [footnote omitted]. See also Nations Within, supra note 23 at 207–8. Obviously the constitutional protections were not very effective in practice.

31 In addition to cases and articles cited supra in notes 16–25, see a speech by Senator Ervin entitled “The Rights of Indians Under the Constitution of the United States”, delivered to the Indian Law Committee, Federal Bar Association Annual Convention, 26 Sept. 1963, and printed in 109 Cong. Rec. S19360–62 (11 Oct. 1963) [hereinafter “Rights of Indians”].

32 On Ervin's motives for undertaking this task, see Burnett, supra note 29 at 574–76.

33 W.A. Brophy & S.D. Aberle, eds., Report of the Commission on the Rights, Liberties and Responsibilities of the American Indian (Fund for the Republic, 1961) (this was an abbreviated preliminary report; for the final report, see Brophy, W.A. & Aberle, S.D., eds., The Indian: America's Unfinished Business: Report of the Commission on the Rights, Liberties and Responsibilities of the American Indian (Norman: University of Oklahoma Press, 1966). As Burnett, supra note 29, states at 576, each report “had advanced the conventional thesis that deviations from constitutional government in the United States were improper in themselves and required eventual correction.”

34 107 Cong. Rec. S17121 (25 Aug. 1961).

35 Hearings before the Subcommittee on Constitutional Rights, Constitutional Rights of the American Indian (Washington: U.S. Government Printing Office, 1965).

36 Burnett, supra note 29 at 579.

37 Burnett, supra note 29 at 579–81. See also “Indian Bill of Rights”, supra note 26 at 1356–58.

38 Burnett, supra note 29 at 581.

39 Hearings on Constitutional Rights of the American Indian Before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 88th Congress, 1st Sess., pt. 4 at 872 (1963), as cited in Burnett, supra note 29 at 581. On the same page, Burnett pointed out that “[a]verage family incomes of $1,500, land held in trust by the BIA, and meagre royalties received for white development of reservation resources provided inadequate bases for tribal revenue” [footnotes omitted].

40 Burnett, supra note 29 at 581–82; “Indian Bill of Rights”, supra note 26 at 1358–59.

41 Burnett, supra note 29 at 583 [footnote omitted].

42 Ibid. at 588–89.

43 113 Cong. Ree. S13473 (23 May 1967) (statement of Senator Ervin) [emphasis added].

44 “Rights of Indians”, supra note 31.

45 Pub. L. 90–284, Titles II–VII, 82 Stat. 77–80, codified as amended 25 U.S.C. §§ 1301–1341 (1995). On modifications that were made to Ervin's earlier bills, see Burnett, supra note 29 at 589–604; Lazarus, supra note 26 at 337–38, 345–48.

46 On the tactics of enactment, see Burnett, supra note 29 at 604–14.

47 Pub. L. 90–284, 82 Stat. 77.

48 The relevant provisions are contained in Title II of the Civil Rights Act of 1968. Titles III to VII deal with other Indian matters that are beyond the scope of this article, including the drafting of a model code for Courts of Indian Offenses, limitations on state jurisdiction over Indian reservations, the addition of assault resulting in serious bodily injury to the major crimes committed by reservation Indians over which the federal courts have jurisdiction, federal government approval of employment of legal counsel by Indians, and revision and publication of certain works relating to Indian affairs, including Cohen's, Handbook (1st ed. 1942), supra note 14.

49 § 1301 is an interpretive section containing the following definitions:

(1) “Indian tribe” means any tribe, band, or other group of Indians subject to the jurisdiction of the United States and recognized as possessing powers of self-government;

(2) “powers of self-government” means and includes all governmental powers possessed by an Indian tribe, executive, legislative, and judicial, and all offices, bodies, and tribunals by and through which they are executed, including courts of Indian offenses; and

(3) “Indian Court” means any Indian tribal court or court of Indian offense. In 1990 and 1991, § 1301(2) was amended to include “the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians”: Pub. L. 101–511, § 8077(b), 104 Stat. 1856, 1892; Pub. L. 102–37, 105 Stat. 646 (this was to reverse the effect of Duro v. Reina, supra note 17, where it had been held that Indian tribes do not have criminal jurisdiction over non-member Indians): see Nell Jessup Newton, “Permanent Legislation to Correct Duro v. Reina” (1992) 17 Am. Indian L. Rev. 109; Skibine, A.T., “Duro v. Reina and the Legislation that Overturned It: A Power Play of Constitutional Dimensions” (1993) 66 S. Cal. L. Rev. 767.

50 The maximum penalties of six months imprisonment and fines of $500 in the original Act were increased to the current amounts in 1986 by Pub. L. 99–570, Title IV, Subtitle C, Part 5, § 4217, 100 Stat. 3207–146 (1986). No doubt these restrictions on sentencing were thought to be justified because Congress, by what is commonly known as the Major Crimes Act, 23 Stat. 362, § 9 (as amended), 18 U.S.C. § 1153 (1995) [hereinafter Major Crimes Act], had in 1885 taken jurisdiction over serious crimes away from the Indian tribes: see Clinton, R., “Criminal Jurisdiction over Indian Lands: A Journey Through a Jurisdictional Maze” (1976) ′18 Ariz. L. Rev. 503 at 536–45. Compare Task Force Two, Tribal Government, Final Report to the American Indian Policy Review Commission (Washington: U.S. Government Printing Office, 1976) at 34, recommending that “this limitation on the penalty power of tribal courts be deleted from the Act, being totally inconsistent with Federal policy supporting the concept of self-government.”

51 This provision comes from the original Constitution, art. I,§ 9, cl. 3, not from the Amendments.

52 See Statement of Congressman Ben Reifel Before the House Committee on Rules, on H.R. 2516, printed in 114 Cong. Rec. H9110–12 (4 Apr. 1968) at 9112; “Indian Bill of Rights”, supra note 26 at 1359.

53 See Lazarus, supra note 26 at 339, where it is suggested that this omission was perhaps due to recollections of the Sioux and Apache military campaigns of the nineteenth century. However, the omission would hardly be effective to keep the tribes from arming, as Indians would still have the right to keep and bear arms under the Second Amendment to the Constitution unless prohibited from doing so by their own tribal governments, to which the Amendment does not apply.

54 By the Major Crimes Act, supra note 50, Congress severely restricted the impact of Ex Parte Crow Dog, 109 U.S. 556 (1883), where the Supreme Court had held that the Indian tribes had jurisdiction over crimes committed by Indians against Indians in Indian Country: See Harring, S.L., Crow Dog's Case: American Indian Sovereignty, Tribal Law, and United States Law in the Nineteenth Century (New York: Cambridge University Press, 1994).

55 See The Indian Civil Rights Act, A Report of the United States Commission on Civil Rights, June 1991 [hereinafter Civil Rights Commission Report], 5. For further discussion, see Coulter, R.T., “Federal Law and Indian Tribal Law: The Right to Civil Counsel and the 1968 Indian Bill of Rights” (19701971) 3 Columbia Survey of Hum. Rts. L. 49; Milani, V.C., “The Right to Counsel in Native American Tribal Courts: Tribal Sovereignty and Congressional Control” (1994) 31 Am. Crim. L. Rev. 1279.

56 Some of the arguments against inclusion of a right to trial by jury, especially in civil matters, included cost, the difficulty of finding impartial jurors in small communities, and the inappropriateness of this form of trial in societies where kinship predominates: Civil Rights Commission Report, supra note 55 at 9. During the Congressional hearings on the legislation, Domingo Montoya, Chairman of the All Indian Pueblo Council of New Mexico, said this: “it [was] no more logical to use a jury system for the settlement of internal matters within the extended ‘family’ that makes up a pueblo than it would be to use a similar system within the framework of an Anglo-American family as a means for enforcing internal rules or resolving internal disputes”: Rights of Members of Indian Tribes: Hearing Before the Subcommittee on Indian Affairs of the House Committee on Interior and Insular Affairs, 90th Congress, 2nd Sess. (1968) [hereinafter Rights of Members Hearings] at 37.

57 See Wunder, J.R., “Retained by the People”: A History of American Indians and the Bill of Rights (New York: Oxford University Press, 1994) at 135–40.

58 This Commission was established by Congress in 1957 as an independent, bi-partisan agency to investigate allegations of discriminatory denial of the right to vote, collect information and study legal developments in relation to discrimination and equal protection, appraise federal laws and policies regarding discrimination and equal protection, and submit reports and recommendations to Congress and the President: Civil Rights Commission Report, supra note 55, inside front cover.

59 The sources of information for the Report are described thus: “At the core of the study were hearings in five locations in which testimony was received from scores of individuals including, among others, tribal judges, tribal council members, Indian law scholars, tribal lay advocates, United States Attorneys, attorneys who practice before tribal courts, representatives of tribal judges associations, and the Bureau of Indian Affairs. Information was also gathered through field interviews, staff research, oral and written correspondence, statements submitted by tribes, and responses to Commission requests for information. In all, 162 persons provided testimony, and hundreds of others were interviewed.” Civil Rights Commission Report, supra note 55 at 1–2 [footnotes omitted].

60 Ibid. at 8 [footnotes omitted]. The financial concerns appear to have been well founded: see ibid. at 37–44, 71–72 (Findings 2, 4 and 5). Maria Odum, in an article in the New York Times on 4 October 1991 entitled “Money Shortage Seen as Hindering Indian Justice”, wrote: “Indian judges charge that Congress left them with an impossible task when it established standards for their legal system without providing money to help the courts move toward something more like the adversarial system found in state and Federal courts.” Congress has recognized this problem. The Indian Tribal Justice Act, Pub. L. 103–176, 107 Stat. 2004 (1993), 25 U.S.C. §§ 3601–3631 (1995), authorized substantial funding to support tribal courts by facilitating access to legal materials, improving court records systems, assisting with continuing legal education, and providing technical assistance: see Pommersheim, F., Braid of Feathers: American Indian Law and Contemporary Tribal Life (Berkeley: University of California Press, 1995) 129–30. Unfortunately, as of April, 1998, Congress had failed to make the appropriations necessary to fulfill this promise: see McCarthy, R.J., “Civil Rights in Tribal Courts: The Indian Bill of Rights at Thirty Years” (1998) 34 Idaho L. Rev. 465 at 513.

61 See S. O'Brien, “Federal Indian Policies and the International Protection of Human Rights” in Deloria, supra note 20, 35 at 47; Medcalf, L., Law and Identity: Lawyers, Native Americans, and Legal Practice (Beverley Hills: Sage Publications, 1978) at 9193.

62 Rights of Members Hearings, supra note 56 at 127, as quoted in Civil Rights Commission Report, supra note 55 at 8–9.

63 See Nations Within, supra note 23 at 213, suggesting that the rights-based approach of the ICRA would replace the complex systems of responsibilities and duties that are fundamental to traditional Indian societies.

64 Chief Tso, Justice Tom, “The Process of Decision Making in Tribal Courts” (1989) 31 Ariz. L. Rev. 225 at 229.

65 Hearings on S. 961–68 and S.J. Res. 40 Before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 89th Congress, 1st Sess. 1 (1965) at 65, as quoted in Reiblich, G.K., “Indian Rights Under the Civil Rights Act of 1968” (1968) 10 Ariz. L. Rev. 617 at 620 n.11. See also Chaudhuri, supra note 20 at 30: “Students of the law are keenly aware that the nationalization of the Bill of Rights and its application to the states has a complex history and one that is still in process. However, at least the Fourteenth Amendment was ratified by the states. No such ratification was sought from the tribes in the context of the Indian Civil Rights Act. The ‘rights’ were extended unilaterally by Congress thereby again raising many questions of the role and meaning of ‘consent’ in democratic theory.”

66 See Berry, R., “Civil Liberties Constraints on Tribal Sovereignty After the Indian Civil Rights Act of 1968” (1993) 1 J.L. & Pol'y 1; Byram, J.S., “Civil Rights on Reservations: The Indian Civil Rights Act and Tribal Sovereignty” (2000) 25 Okla. City U. L. Rev. 491; Hardin, J.T., “Santa Clara Pueblo v. Martinez: Tribal Sovereignty and the Indian Civil Rights Act of 1968” (1979) 33 Ark. L. Rev. 399; Prucha, F.P., The Great Father: The United States Government and the American Indians (Lincoln: University of Nebraska Press, 1984) at 1108–109.

67 E.g., see Burnett, supra note 29; Kerr, J.R., “Constitutional Rights, Tribal Justice, and the American Indian” (1969) 18 J. Pub. L. 311; Lazarus, supra note 26; de Raismes, J., “The Indian Civil Rights Act of 1968 and the Pursuit of Responsible Tribal Self-Government” (1975) 20 S.D.L. Rev. 59; Reiblich, supra note 65; Nations Within, supra note 23 at 200–14; Shattuck, P. T. and Norgren, J., Partial Justice: Federal Indian Law in a Liberal Constitutional System (Providence: Berg Publishers, 1991) at 164–89; Smith, M., “Tribal Sovereignty and the 1968 Indian Bill of Rights” (1970) 3:3Civil Rights Digest 9; Note, “Indians – Criminal Procedure: Habeas Corpus as an Enforcement Procedure under the Indian Civil Rights Act of 1968, 25 U.S.C. §§ 1302–1303” (1971) 46 Wash. L. Rev. 541; Warren, J.S., “An Analysis of the Indian Bill of Rights” (1972) 33 Montana L. Rev. 255; Ziontz, A.J., “In Defense of Tribal Sovereignty: An Analysis of Judicial Error in Construction of the Indian Civil Rights Act” (1975) 20 S.D.L. Rev. 1.

68 436 U.S. 49 (1978) [hereinafter Martinez].

69 For references to the pre-Martinez federal court decisions, see Civil Rights Commission Report, supra note 55 at 12–15; McCarthy, supra note 60 at 471–72. For critical assessment of the earlier decisions, see Ziontz, supra note 67 at 20–58.

70 See McCarthy, supra note 60 at 473–78.

71 See Civil Rights Commission Report, supra note 55 at 11–28. For a very useful survey of reported tribal court decisions dealing with the ICRA, see McCarthy, supra note 60 at 489–515.

72 Martinez, supra note 68 at 52–53. For a more detailed description of the benefits of Pueblo membership, see the District Court's decision in Martinez v. Santa Clara Pueblo, 402 F.Supp. 5 (D.N.M. 1975) [hereinafter Martinez (D.N.M.)].

73 Martinez (D.N.M.), supra note 72.

74 Ibid. at 18. While the flexible approach to the construction and application of the provisions of the ICRA taken by Mechem D.J. was consistent with a number of federal court decisions, in other cases the requirements of the Act have been held to be identical to equivalent provisions in the U.S. Bill of Rights: see Civil Rights Commission Report, supra note 55 at 14–15. See also infra notes 153–57 and accompanying text.

75 Martinez v. Santa Clara Pueblo, 540 F.2d 1039 (10th Cir. 1976) [hereinafter Martinez (10th Cir.).

76 The Tenth Circuit thought the Ordinance was motivated primarily by what it called “practical economic considerations” (preservation of tribal property): ibid. at 1048. See also at 1040–41, 1047.

77 White J. dissented. Rehnquist J. concurred with the majority, except on the issue of the sovereign immunity of the Indian tribes.

78 Martinez, supra note 68 at 55, quoting Worcester v. Georgia, supra note 12 at 559.

79 Supra note 16.

80 Martinez, supra note 68 at 56.

81 Ibid. at 57. See also at 63, esp. n. 14, where Marshall J. specified some of the differences between the ICRA and the Bill of Rights and Fourteenth Amendment.

82 Ibid. at 58, quoting United States v. King, 395 U.S. 1 (1969) at 4, cited in United States v. Testan, 424 U.S. 392 (1976) at 399.

83 Regarding the habeas corpus jurisdiction provided by § 1303, he observed that the respondent in such action would be the individual custodian of the prisoner, not the tribe: Martinez, supra note 68 at 59.

84 For discussions of the impact of this aspect of the Court's decision, see Civil Rights Commission Report, supra note 55 at 63–67; McCarthy, supra note 60 at 478–83.

85 Martinez, supra note 68 at 59. Marshall J. relied on Williams v. Lee, 358 U.S. 217 (1959) (a state court does not have jurisdiction over a debt arising on a reservation between a reservation Indian and a non-Indian merchant), and Fisher v. District Court, 424 U.S. 382 (1976) (a state court does not have jurisdiction over adoption where the parties are all tribal members and residents on the reservation).

86 Martinez, supra note 68 at 60.

87 Ibid., quoting Morton v. Mancari, 417 U.S. 535 (1974) at 551.

88 Martinez, supra note 68 at 62–63. For the most important omissions and modifications, see supra notes 52–56 and accompanying text. Marshall J. referred as well to other provisions of the ICRA (not discussed in this article) that were clearly intended to strengthen self-government, such as §§ 1321–1323, by which Congress repealed and replaced § 7 of Pub. L. 83–280, 67 Stat. 588 (1953), making tribal consent necessary for state assumption of civil and criminal jurisdiction over Indian reservations: see Kennedy v. District Court, 400 U.S. 423 (1971).

89 Martinez, supra note 68 at 64, quoting the Subcommittee on Constitutional Rights, Senate Judiciary Committee, Constitutional Rights of the American Indian: Summary Report of Hearings and Investigations Pursuant to S. Res. 194, 89th Congress, 2d Sess. (1966) at 12.

90 Martinez, supra note 68 at 65.

91 Ibid. at 67.

92 Ibid. at 70–72.

93 See amendments proposed by Senator Orrin Hatch (R.-Utah), 134 Cong. Rec. SI 1652–56 (11 Aug. 1988). These amendments were supported by the U.S. Department of Justice: see letter addressed to Senator Orrin Hatch, dated 22 Aug. 1988, from Thomas M. Boyd, Acting Assistant Attorney General, Office of Legislative Affairs, Washington, D.C. (copy on file with author). Similar amendments were proposed by Senator Slade Gorton (R.-Wash.) in the 1990s: e.g. see American Indian Equal Justice Act, S. 1691, 105th Cong. § 2 (1998), printed in 144 Cong. Rec. S1155–56 (27 Feb. 1998). See McCarthy, supra note 60 at 466, 488–89; Newton, N.J., “Tribal Court Praxis: One Year in the Life of Twenty Indian Tribal Courts” (1998) 22 Am. Indian L. Rev. 285 at 285–89.

94 For a brief summary of other case law adopting such an approach, see Lynch, J.D., “Indian Sovereignty and Judicial Interpretations of the Indian Civil Rights Act” [1979] Wash. U.L.Q. 897 at 913–15. See also supra note 74. Compare infra notes 153–57 and accompanying text.

95 E.g., the District Court and the Ninth Circuit disagreed over the extent to which the Ordinance was based on tradition or motivated by more recent, practical considerations: see Martinez (D.N.M.), supra note 72 at 16–18; Martinez (10th Cir.), supra note 75 at 1040–41, 1047–48. This kind of inquiry inevitably involves determinations (or, more commonly, assumptions) about the meaning of tradition, which raises the problematic issue of whether it can be created on an on-going basis. See Resnik, J., “Dependent Sovereigns: Indian Tribes, States, and the Federal Courts” (1989) 56 U. Chicago L. Rev. 671 at 709–11; Laurence, R., “A Quincentennial Essay on Martinez v. Santa Clara Pueblo” (19911992) 28 Idaho L. Rev. 307 at 334.

96 On the use of habeas corpus in federal courts, see Note, “Indians – Criminal Procedure: Habeas Corpus as an Enforcement Mechanism under the Indian Civil Rights Act of 1968, 25 U.S.C. §§ 1302–1303” (1971) 46 Wash. L. Rev. 541; McCarthy, supra note 60 at 473–78.

97 In a footnote to their judgment, the Supreme Court in Martinez, supra note 68 at 66 n.22, suggested that, where tribal constitutions require Department of the Interior approval for tribal ordinances, “persons aggrieved by tribal laws may, in addition to pursuing tribal remedies, be able to seek relief from the Department”. The effectiveness of this remedy was questioned in Civil Rights Commission Report, supra note 55 at 20–28, 71 (Finding 3(b)). Moreover, as the Supreme Court pointed out in the same footnote, the Santa Clara Constitution did not contain such a requirement.

98 Martinez, supra note 68 at 66 n. 22.

99 Julia Martinez had in fact made concerted efforts to have the Pueblo Council change the Ordinance and accept Audrey as a member, without success: Martinez (D.N.M.), supra note 72 at 11, where Mechem D.J. concluded: “Plaintiffs have exhausted all available remedies within the Pueblo.”

100 In addition to the works referred to in the text of this article, see Byram, supra note 66; Jeffrey, R.C. Jr., “The Indian Civil Rights Act and the Martinez Decision: A Reconsideration” (1990) 35 S.D.L. Rev. 355; Resnik, supra note 95; Schultz, G., “The Federal Due Process and Equal Protection Rights of Non-Indian Civil Litigants in Tribal Courts After Santa Clara Pueblo v. Martinez” (1985) 62 Denver U.L. Rev. 761.

101 “Whose Culture? A Case Note on Martinez v. Santa Clara Pueblo” in MacKinnon, Catherine A., Feminism Unmodified: Discourses on Life and Law (Cambridge: Harvard University Press, 1987) 63 at 66.

102 Ibid. at 65–66.

103 24 Stat. 388, 25 U.S.C. §§ 331–358 (1995).

104 Supra note 101 at 66–67. Professor MacKinnon did not refer to the Tenth Circuit's reported decision, where the origins of the Ordinance were discussed and the conclusion was reached that it was motivated by an increase in mixed marriages and fears that this would result in “enlarged demands for allocation of land and other tribal resources”: Martinez (10th Cir.), supra note 75 at 1040. For a serious attempt to place the Ordinance in its cultural context, see Resnik, supra note 95 at 702–27.

105 MacKinnon, supra note 101 at 67.

106 Ibid. at 68.

107 For critical commentary on Professor MacKinnon's essay, see Harris, Angela P., “Race and Essentialism in Feminist Legal Theory” (1990) 42 Stan. L. Rev. 581 at 593–95 (suggesting that, despite her tentativeness, MacKinnon ultimately expected Julia Martinez “to choose her gender over her race”, thereby distorting her experience). See also Williams, Robert A. Jr., “Gendered Checks and Balances: Understanding the Legacy of White Patriarchy in an American Indian Cultural Context” (1990) 24 Ga. L. Rev. 1019 at 1023 n.9.

108 Christofferson, C., “Tribal Courts' Failure to Protect Native American Women: A Reevaluation of the Indian Civil Rights Act” (1991) 101 Yale L.J. 169.

109 Ibid. at 178–79.

110 Despite the title of her article, however, Christofferson offered virtually no evidence that tribal courts were not protecting the equality rights of female tribal members, as the equal protection provision in the ICRA requires them to do. She seems to have assumed that, because Julia and Audrey Martinez could not obtain a remedy within the Santa Clara Pueblo, other Indian women would be similarly disadvantaged. However, examination of the reported decisions of tribal courts concerning the ICRA has revealed that they are doing a reasonably good job enforcing its provisions: see infra notes 142–52 and accompanying text.

111 Christofferson, supra note 108 at 179–85. She expressly rejected proposals by Senator Orrin Hatch (see supra note 93) for broad federal court enforcement of the ICRA after exhaustion of tribal remedies: ibid. at 179–81. See also Williams, R.A. Jr., “Documents of Barbarism: The Contemporary Legacy of European Racism and Colonialism in the Narrative Traditions of Federal Indian Law” (1989) 31 Ariz. L. Rev. 237 at 271–75.

112 See Ball, M.S., “Constitution, Court, Indian Tribes” [1987] Am. Bar Found. Res. J. 1 at 123–25.

113 Strickland, R., “Genocide-at-Law: An Historic and Contemporary View of the Native American Experience”, The Längsten Hughes Lectures, (19851986) 34 U. Kan. L. Rev. 713 at 737 [footnote omitted].

114 Nations Within, supra note 23 at 213. See also commentary in note 63, supra.

115 Laurence, supra note 95 at 315.

116 Ibid. at 337.

117 435 U.S. 191 (1978) [hereinafter Oliphant].

118 Marshall J., who authored the Martinez decision, wrote a dissenting opinion in Oliphant that was joined in by Burger C.J.

119 Oliphant was followed in 1987 by Duro v. Reina, supra note 17, where the Supreme Court decided that Indians who are not members of a tribe are not subject to the criminal jurisdiction of that tribe's court. This was changed by legislation giving tribal courts criminal jurisdiction over non-member Indians: see supra note 49.

120 E.g., see Montana v. United States, 450 U.S. 544 (1981); Nevada v. Hicks, supra note 17; Strate v. A-1 Contractors, 520 U.S. 438 (1997). For critical commentary, see Frickey, P.P., “A Common Law for Our Age of Colonialism: The Judicial Divestiture of Indian Tribal Authority Over Nonmembers” (1999) 109 Yale L.J. 1; Krakoff, S., “Undoing Indian Law One Case at a Time: Judicial Minimalism and Tribal Sovereignty” (2001) 50 Am. U.L. Rev. 1177; Pommersheim, F., “Coyote Paradox: Some Indian Law Reflections from the Edge of the Prairie” (1999) 31 Ariz. St. L.J. 439.

121 Laurence, supra note 95 at 337–39. See also Laurence, R., “Martinez, Oliphant and Federal Court Review of Tribal Activity Under the Indian Civil Rights Act” (1988) 10 Campbell L. Rev. 411. Implicit in this argument, of course, is an assumption that tribal courts are inadequate protectors of non-members' rights. Though the evidence so far is meagre, it is not at all clear that this is the case: see Rosen, M.D., “Multiple Authoritative Interpreters of Quasi-Constitutional Federal Law: Of Tribal Courts and the Indian Civil Rights Act” (2000) 69 Fordham L. Rev. 479 at 572–77 (examining the ten reported cases where non-members relied on the ICRA in tribal courts and concluding that, with a couple of possible exceptions, the non-members were not unfairly treated). See also infra notes 146–49 and accompanying text.

122 Laurence, supra note 95 at 339.

123 Supra note 17.

124 Ibid. at 2323.

125 Ibid.

126 Ibid. [emphasis added], citing a passage from Duro v. Reina, supra note 17 at 693, which quoted from Cohen's Handbook, supra note 14 at 334–35.

127 Compare Rosen, supra note 121 at 572–77.

128 See McCarthy, supra note 60 at 486 [footnotes omitted]: “There were 119 tribal courts in 1978. Ten years later, the number had increased to about 150, handling an estimated 230,000 cases annually. The growth of tribal judiciaries in the most recent decade has been astounding. Today, of the more than 500 federally recognized tribal governments, virtually all have some system of civil dispute resolution and most have criminal court systems.”

129 Besides safeguarding civil rights, it appears that an independent judiciary is important factor in economic development on Indian reservations: see Cornell, S. and Kalt, J.P., “Sovereignty and Nation-Building: The Development Challenge in Indian Country Today” (1998) 22:3Am. Indian Culture & Rsch. J. 187, at 197–98.

130 Civil Rights Commission Report, supra note 55 at 44–51.

131 Ibid. at 51. See also American Indians, American Justice, supra note 14 at 135–37.

132 See Civil Rights Commission Report, supra note 55 at 63.

133 See ibid. at 66–67; McCarthy, supra note 60 at 478–83. According to the Civil Rights Commission Report, tribal judges who have found that the ICRA did abrogate sovereign immunity in tribal court suits have often relied on this passage from Martinez, supra note 68 at 65: “Tribal forums are available to vindicate rights created by the ICRA, and § 1302 has the substantial and intended effect of changing the law which these forums are obliged to apply.”

134 Civil Rights Commission Report, supra note 55 at 74. See also Pommersheim, F. & Pechota, T., “Tribal Immunity, Tribal Courts, and the Federal System: Emerging Contours and Frontiers” (1986) 31 S.D.L. Rev. 553.

135 Civil Rights Commission Report, supra note 55 at 67, citing Laffery, S., “Sovereignty: Tribal Sovereign Immunity and the Claims of Nonlndians Under the Indian Civil Rights Act” (1981) 9 Am. Indian L. Rev. 289 at 308.

136 See Newton, supra note 93 at 338–41.

137 Civil Rights Commission Report, supra note 55 at 71.

138 Ibid. at 72.

139 Ibid.

140 Ibid. at 74.

141 McCarthy, supra note 60 at 489–513.

142 Ibid. at 489–90. See also at 513: “The evidence suggests that efforts to strip tribes of sovereign immunity or to greatly expand federal review of tribal courts are overbroad remedies for an exaggerated problem, unfairly based on anecdote and cultural prejudice.” Accord Probasco, R.D., “Indian Tribes, Civil Rights, and Federal Courts” (2001) 7 Tex Wesleyan L. Rev. 119 at 150–55.

143 McCarthy, supra note 60 at 414–15.

144 Newton, supra note 93 at 290, 341.

145 Ibid. at 352.

146 23 Indian L. Rep. 6235 (Ho-Chunk Tribal Ct. 1996).

147 See Newton, supra note 93 at 345–46, 352.

148 Ibid. at 352–53.

149 Ibid. at 353.

150 Rosen, supra note 121.

151 Ibid. at 581–82. See also at 512–77, for extensive analysis of the case law.

152 85 F.3d 874 (2nd Cir. 1996).

153 Among other things, the majority questioned whether the banishment really was in accordance with tribal tradition: ibid. at 889, 900. On the problem of judges who are not from the community determining what is traditional, see supra note 95.

154 Ibid. at 900.

155 Ibid. at 900–01.

156 Rosen, supra note 121 at 580–81, quoting Randal v. Yakima Nation Tribal Court, 841 F.2d 897 (9th Cir. 1988), at 900, which relied on, among other cases, Hewlett v. Salisti and Kootenai Tribes of Flathead Reservation, 529 F.2d 233 (9th Cir. 1976), at 238.

157 See R. v. Sioui, [1990] 1 S.C.R. 1025; R. v. Pamajewon, [1996] 2 S.C.R. 821; Mitchell v. M.N.R., [2001] 3 C.N.L.R. 122 (S.C.C.), per Binnie J. For a trial court decision acknowledging the inherent right of self-government, see Campbell v. British Columbia, [2000] 4 C.N.L.R. 1 (B.C.S.C.). For discussion, see McNeil, Kent, “Aboriginal Rights in Canada: From Title to Land to Territorial Sovereignty” (1998) 5 Tulsa J. Comp. & Int'l L. 253 at 278–98, republished in Emerging Justice?, supra note 2, 58 at 82–101.

158 See Royal Commission on Aboriginal Peoples, Partners in Confederation: Aboriginal Peoples, Self-Government, and the Constitution (Ottawa: Minister of Supply and Services, 1993); McNeil, K., “Envisaging Constitutional Space for Aboriginal Governments” (1993) 19 Queen's L.J. 95, republished in Emerging Justice?, supra note 2, 184; Macklem, supra note 8.

159 See McNeil, supra note 2. Compare the works cited supra note 8.

160 S.32(1) provides that “[t]his Charter applies (a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and the Northwest Territories; and (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.” For conflicting opinions on whether Aboriginal governments can be brought within the scope of this provision, compare RCAP Vol. 2, supra note 8 at 227–32 (arguing that they can), with McNeil, supra note 2 at 68–79 (Emerging Justice? at 220–31), and Wilkins, supra note 8 at 58–80 (arguing that they cannot). For a valuable assessment of the arguments both ways, see Macklem, supra note 8 at 198–210. See also Russell, supra note 9 at 184–86.

161 The Constitution Act, 1982, supra note 1, s.35(l), acknowledged this by providing constitutional protection to the existing Aboriginal and treaty rights of the Aboriginal peoples. In interpreting this provision, the Supreme Court has emphasized the importance of preserving the distinctive practices, customs, and traditions of the Aboriginal peoples: see R. v. Van der Peet, [1996] 2 S.C.R. 507.

162 See Burnett, supra note 29 at 588–603.

163 See supra notes 52–56 and accompanying text.

164 Martinez, supra note 68 at 62–64.

165 E.g., the failed Charlottetown Accord, officially titled the Consensus Report on the Constitution (Ottawa: 1992), would have applied the Charter to Aboriginal governments generally: for discussion, see Turpel, M.E., “The Charlottetown Discord and Aboriginal Peoples' Struggle for Fundamental Political Change” in McRoberts, K. & Monahan, P., eds., The Charlottetown Accord, the Referendum and the Future of Canada (Toronto: University of Toronto Press, 1993) 117; McNeil, K., “The Decolonization of Canada: Moving Toward Recognition of Aboriginal Governments” (1994) 7 West. Leg. Hist. 113 at 138–40, republished in Emerging Justice?, supra note 2, 161 at 180–82.

166 Hogg & Turpel, supra note 8 at 416. While they predicted that Canadian courts would apply the Charter to Aboriginal governments, it is not clear whether they thought the courts should do so (compare the other works by Turpel cited supra note 9). They recommended that Aboriginal peoples include Charters of rights that reflect their particular traditions and values in their own constitutions. While they did not think these Aboriginal Charters would displace the Canadian Charter, they predicted that “they would not be ignored by the courts, which would then be more likely (invoking section 25) to respect laws and decisions that had been made by an Aboriginal government within the framework of its constitution”: ibid. at 419–20.

167 Ibid. at 418. This view was endorsed by the Royal Commission on Aboriginal Peoples: RCAP Vol. 2, supra note 8 at 232–33.

168 E.g., the “integral to the distinctive culture” test for Aboriginal rights created by the Supreme Court in R. v. Van der Peet, supra note 161, reveals that, even at that level, some judges have static, historical conceptions of Aboriginal cultures: see Borrows, J., “Frozen Rights in Canada: Constitutional Interpretation and the Trickster” (1997) 22 Am. Indian L. Rev. 37; Barsh, R.L. & Henderson, J.Y., “The Supreme Court's Van der Peet Trilogy: Naive Imperialism and Ropes of Sand” (1997) 42 McGill L.J. 993.

169 See supra notes 153–57 and accompanying text.

170 Martinez, supra note 68 at 72: see supra note 92 and accompanying text.

171 RCAP Vol. 2, supra note 8 at 226–34.

172 Russell, supra note 9 at 183 [footnotes omitted].

173 Ibid. at 103–13.

174 Ibid. at 127. See also Wilkins, supra note 8 at 84–99, concluding at 99 that “it makes much more sense to deal case by case with allegations of real abuse and injustice in the exercise of inherent self-government rights than to begin by demanding compliance with a rights regime [the Charter] that threatens the very traditions on which such rights are based” [footnote omitted].

175 Modern treaties may, however, provide for the creation of Aboriginal courts: e.g., see the Nisga'a Final Agreement, initialled 4 August 1998, ch. 12, paras. 30–49. Although ch. 2, para. 9, of that Agreement provides that the Charter “applies to Nisga'a Government in respect of all matters within its authority”, the jurisdiction conferred on the Nisga'a Court by ch. 12, paras. 38–41, does not explicitly include enforcement of the Charter. This may mean that Charter challenges against the Nisga'a Government can only be brought in a Canadian court. But even if the Nisga'a Court could entertain Charter challenges, it would not have the last word (as tribal courts in the United States do, except where imprisonment is involved) because decisions of the Nisga'a Court are generally appealable to the British Columbia Supreme Court: ibid. ch. 12, paras. 45–48.

176 Martinez, supra note 68 at 72.

177 For other views, see works cited supra note 9, esp. Native Women's Association of Canada, Nahanee, and McIvor.

178 Constitutional Amendment Proclamation, 1983, SI/84–102. The four organizations were the Assembly of First Nations, the Inuit Committee on National Issues, the Métis National Council, and the Native Council of Canada.

179 Section 28 probably encompasses the rights and freedoms of the Aboriginal peoples mentioned in s. 25 see Slattery, B., “The Constitutional Guarantee of Aboriginal and Treaty Rights” (1982) 8 Queen's L.J. 232 at 240–42; Eberts, M., “Sex-based Discrimination and the Charter” in Bayefsky, A.F. & Eberts, M., eds., Equality Rights and the Canadian Charter of Rights and Freedoms (Toronto: Carswell, 1985) 183 at 217–18; Isaac and Maloughney, supra note 9 at 465–67.

180 See McNeil, supra note 2 at 76–78 (Emerging Justice? at 227–29).

181 Ibid. at 78–79 (Emerging Justice? at 229–30).

182 This approach would accomplish much the same thing as the amendments to the ICRA proposed by Christofferson, supra note 108: see notes 108–11 and accompanying text. Recall, however, that she thought federal court jurisdiction over gender discrimination should be subject to exhaustion of tribal remedies: see supra note 111 and accompanying text. [You have to read the text accompanying note 111 as well as the note itself to understand the difference between her views and Hatch's – I have attempted to make this clearer to the reader by italicizing genrally in note 111.]

183 Numerous studies have revealed how the Canadian justice system is failing Aboriginal people: e.g., see Royal Commission on the Marshall, Donald Jr. Prosecution, Commissioners' Report: Findings and Recommendations (Halifax: Royal Commission on the Donald Marshall Jr. Prosecution, 1989); Jackson, M., Lacking Up Natives in Canada: A Report of the Committee of the Canadian Bar Association on Imprisonment and Release (Ottawa: Candian Bar Association, 1988), republished in (1989) 23 U.B.C.L. Rev. 205; Report of the Aboriginal Justice Inquiry of Manitoba (Winnipeg: Queen's Printer, 1991). See also (1992) U.B.C.L. Rev. Special Edition: Aboriginal Justice.

184 One view of the common law is that it is the expression of the values and norms of society by judges who are very much a part of that society: See Allen, C.K., Law in the Making, 7th ed. (Oxford: Clarendon Press, 1964) at 7177.

* I would like to thank Lorraine Land for her indispensable assistance with the research for this article. Special thanks are also due to John Borrows, Lana Finney, and Stepan Wood. The financial support of the Social Sciences and Humanities Research Council of Canada is also gratefully acknowledged.

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