Race, Ethnicity, Indigenous Peoples and Politics

L04(b) - Treaty Dynamics. Sovereignty and Canadian/US - Indigenous Relations.

Date: Jun 3 | Time: 01:45pm to 03:15pm | Location:

Chair/Président/Présidente : Dalia Elsayed (Concordia University)

Discussant/Commentateur/Commentatrice : Gabrielle Slowey (York University)

Stagnant Promises: Analyzing Treaty Dynamics in Canadian-Indigenous Relations: Chadwick Cowie (University of Toronto), Michael Cowan (University of Toronto), Chris Greenaway (University of Toronto), Patrick Schnurbusch (University of Toronto)
Abstract: This study examines the applicability of Arthur Spirling’s (2012) quantitative methodology, which identified tonal shifts in U.S.–Indian treaties corresponding to historical events, to the analysis of Canadian-Indigenous treaties. Employing string kernel principal components analysis (KPCA) on a comprehensive corpus of Canadian treaties, we sought to uncover hidden patterns and shifts in treaty language over time. Contrary to findings in the U.S. context, our analysis reveals a linguistic consistency in Canadian treaties over time, with principal components differentiating treaties based on their thematic content rather than a discernible shift in tone corresponding to historical events. This consistency reflects the persistent use of uniform colonial language as a result of colonial administrative practices and the marginalization of Indigenous perspectives within the treaty-making process. Our findings underscore the limitations of text-as-data approaches in contexts where treaties were drafted without significant Indigenous input, and where oral traditions prevail. To address these limitations, we advocate for a pluralistic methodological approach that incorporates Indigenous knowledge systems and frameworks, such as treaty federalism, to achieve a more nuanced understanding of treaty relationships.

Modernizing Historic Treaties: It’s Time for Us to Write Our Own Future: Ryan Fleming (York University), Gabrielle Slowey (York University)
Abstract: The 1973 Trudeau government laid out two paths for land claims: (1) specific claims which meant that ‘specific’ unfulfilled claims pertaining to historic treaties could be compensated and honoured; and (2) comprehensive claims which opened the door for those areas where no treaties had been signed previously, to now be negotiated. One key differentiation has emerged in the intervening years is the difference a modern treaty can make compared with the conditions of First Nations living under historic treaty. As a member of Treaty 9, Attawapiskat First Nation, I intend to investigate the Tlicho Agreement born of Treaty 11, the first combined comprehensive land claim and self-government agreement in Northwest Territories, a modern treaty with the Government of Canada. The agreement provides and defines rights relating to lands, resources and self-government. Could the experience of the Tlicho set a precedent for a new treaty for Treaty 9? Utilizing Indigenous research methodology, through storytelling, community visitation, reflection, sharing circles, ceremony, and methods that centre Indigenous research and Indigenous Peoples. Indigenous perspectives will lead the unveiling connection between modern treaties and the better socioeconomic conditions and outcomes they can provide, demonstrating how Indigenous-led solutions can produce better governance under modern treaties. Are Modern Treaties a better mode of protection, preservation and enhancement of Treaty, Aboriginal, and Indigenous rights than historic treaties as they presently operate? And, if so, can/should historic treaties be replaced by modern treaties? In light of the Ring of Fire development, this is a timely question to be investigated.

Notice and Comment, Negotiated Rulemaking, and Tribal Consultation: the uncomfortable space of Tribal Sovereignty within the US federal system: Dani Delaney (Queen's University)
Abstract: Within the byzantine system of federal agencies and regulations the processes through which the US federal government engages Indigenous nations is poorly understood, lays uneasily within broader federal system, and rests upon a myriad network of Constitution law, federal statute, and agency policies. This paper engages in a legal analysis of the Tribal-Federal consultation process to demonstrate how Tribal consultation is distinct from either the ‘notice and comment’ or the negotiated rulemaking process the federal agencies engage in when drafting or implementing regulations and federal policy. Federalism scholars—when they consider the Tribal consultation process at all—often treat the Tribal-Federal consultation process as a bastardized form of negotiated rulemaking. This paper demonstrates that while Tribal consultation has increasingly become a standard part of federal agency regulatory practice, it is not appropriate in terms of Constitutional or administrative law to consider Tribal consultation as merely a strange form of either notice and comment or the negotiated rulemaking because the Tribal consultation process’ driving legal doctrine is Tribal sovereignty. While US law and agency practice has increasingly attempted to bring Indigenous nations into the broader federal system since the passage of the Indian Reorganization Act of 1938, Indigenous nations still sit as the constitutive outside to sprawling network of US federal regulations and administrative process due to the legal doctrine of Tribal sovereignty. This paper explores how Tribal consultation has increasingly become standardized across the myriad federal agencies, and yet still unsettles the federal system.