Blackfoot Sovereignty Paper, Part III
jcraven at clark.edu
Wed Jun 27 11:57:47 MDT 2001
[ Part III]
International Law and the Canadian Land Claims Process
The International Covenant on Civil and Political Rights144 and the
International Covenant on Economic, Social and Cultural Rights145 both
recognize, inter alia, the following principles.
(1) All peoples have the right of self-determination. By virtue of
that right they freely determine their political status and freely
pursue their economic, social and cultural development. . . .
(3) The States Parties to the present Covenant, including those having
responsibility for the administration of Non-Self-Governing and Trust
Territories, shall promote the realization of the right of
self-determination, and shall respect that right, in conformity with
the provisions of the Charter of the United Nations.
Implementation of these rights is addressed in each Covenant's article
2. Thus, the Government of Canada is obligated under the terms of
these Covenants, to which it is a State Party, to establish national
systems and procedures that protect these rights and provide effective
remedies. No system exists, however, that adequately implements these
rights. These rights involve far more than the simple land claims
available to some First Nations occupying territory within the
external boundaries of the Canadian state. The comprehensive land
claims process implemented by the federal government, for instance,
does not cover land claims by First Nations who entered treaties with
the government.146 Even if the invalidity of Treaty 7 is presumed,
this process in no way attempts to restore the right to
self-government possessed by the Blackfoot. Similarly, the specific
land claims policy, while purporting to resolve issues relating to the
illegal occupation of reserve lands,147 would not address the right of
the colonized people to external self-determination described by the
Supreme Court of Canada in the Reference Re Secession of Quebec case.
Finally, by the terms of the Resolution on Permanent Sovereignty over
natural resources,148 the General Assembly declared that "[t]he right
of peoples . . . to permanent sovereignty over their natural wealth
and resources must be exercised in the interest of their national
development and of the well-being of the people of the State
concerned."149 The Resolution further provides that "[t]he free and
beneficial exercise of the sovereignty of peoples and nations over
their natural resources must be furthered by the mutual respect of
States based on their sovereign equality." It is "contrary to the
spirit and principles of the Charter of the Untied Nations" when
violations of these rights of peoples occur.150 These provisions apply
with particular relevance to the Blackfoot people. As explained in
their declaration of independence, the Blackfoot people relate to the
land and natural resources in a manner distinct from European notions
At the root of many disputes about land is a fundamental difference
about the meaning of land. Many First Nations . . . referred to the
land as Mother Earth. They did not view land as something which could
be owned or sold. Most Europeans, on the other hand, viewed land as
property which could be bought and traded like any other commodity.151
Viewed in concert with the misconceptions apparent at the making of
Treaty 7 and this resolution, these divergent conceptualizations of
land indicate that no land claims policy, comprehensive, specific or
otherwise, will effectuate the exercise of the Blackfoot people's
fundamental right to self-determination. In other words, a
successfully negotiated land claim, if it were even possible, would
only recognize European-derived notions of land tenure. It would
express a one-sided solution to a multifaceted problem. The Blackfoot
people, or any people, can not be viewed as exercising the right to
self-determination if their fundamental philosophies are ignored in
this manner. Canada's Reputation as a Human Rights Vanguard "In
international circles, Canada is regarded as a world leader in the
promotion of human rights. Canadian leaders and ambassadors have
consistently pressed for protection of high standards on the human
rights issues of marginalized and vulnerable populations."152
Notwithstanding Canada's reputation in the international human rights
community as a leader in protecting human rights, its reputation for
protecting the human rights of First Nations within its borders leaves
much to be desired.153 For instance, in its 1999 review of Canada's
compliance with the International Covenant on Civil and Political
Rights, the United Nations Human Rights Committee "repeatedly
criticized Canada on its handling of First Peoples' issues."154 The
mechanisms needed to respond to and correct these criticisms are
nonexistent in Canada, however. Considering the support given First
Nations in the United Nations, it would behoove the Canadian
government to consider these issues more seriously.
Furthermore, if the Canadian government follows its current path by
disregarding the Blackfoots' decision to assert their sovereign
rights, the reputation of Canada in the international human rights
community will be threatened further. If a human rights vanguard is
viewed by other nations as slipping from its commitment to human
rights principles, those other nations may follow suit. "Some nations
even take refuge in Canada's shortcomings, saying the continued poor
treatment of First Peoples across Canada invalidates Canadian moral
authority to speak about human rights abuses internationally."155 If
Canada loses its persuasive supremacy internationally, it is alarming
to consider what abuses other, less humane nations will consider
within the bounds of morals and the law. If Canada truly has an
interest in the promotion of human rights on an international scale,
it would do well to promote human rights in its own territory.
On the national front, Canada would benefit from recognizing the
Blackfoot Nation's declaration of independence. The stability
stemming from resolving such a claim would make it clear to other
First Nations living within Canada's borders, although they are
Nations without the same claims to sovereignty as the Blackfoot, that
Canada is committed to recognizing their grievances in a meaningful
way. Different peoples employ different methods for resolving various
political, social and legal claims. The fact that the Blackfoot
Nation has declared its independence should not concern Canada with
respect to other First Nations following the lead. The Blackfoot have
specific claims that other Aboriginal peoples would find irrelevant or
inappropriate to their needs. Therefore, recognition of Blackfoot
sovereignty would not threaten to introduce a "slippery slope" to
Canada's Aboriginal affairs, because if other First Nations had
desired to follow the same path, they would be expected to have done
so already. Recognition of Blackfoot sovereignty would only
strengthen Canada's relations with other First Nations and restore
Canada's reputation in the international human rights community as an
advocate of human rights.
The Blackfoot Nation has declared its independence from Canada because
the Blackfoot people possess a fundamental right, recognized at
international law, to self-determination. The Supreme Court of Canada
has recognized that this right includes a right of unilateral
secession from a colonizing power. It has been impossible for the
Blackfoot Nation to exercise any meaningful form of internal
self-determination because their lands have been illegally
appropriated and occupied by the Canadian government, and Canadian law
has been imposed on them without their consent. The illegal occupation
of Blackfoot lands results from the invalid Treaty 7, entered into
between Her Majesty the Queen by Her commissioners and the Blackfoot
and other Nations in 1877. The treaty commissioners employed
duplicitous tactics to coerce the First Nations' leaders to agree to
the terms of a written document they did not fully appreciate. Their
lack of complete understanding of these terms resulted from inaccurate
interpretations, promises that were never intended to be fulfilled,
and fundamental differences in the conceptualization of land use and
ownership, and the purpose of a treaty.
In signing Treaty 7, there is no evidence to support a contention that
the Blackfoot and other First Nations' leaders ever consented to
surrender their lands or submit to colonial rule. Nevertheless, the
Indian Act has been imposed on these peoples, and operates to strip
the Blackfoot of any meaningful control over their lands, their
governance and their daily lives. They have the right to control
these aspects of their existence, and Canada has an obligation, under
international and domestic law and the most basic principles
constituting moral integrity, to recognize this right by accepting the
Proclamation Restoring the Independence of the Sovereign Nation State
1. Blackfoot Nation, Declaration of Independence (November 29, 1999)
(on file with Blackfoot Nation).
2. R.S.C., ch. I-5, ss.1-122 (1985) (Can.).
3. C. Roderick Wilson, The Plains - A Regional Overview, in NATIVE
PEOPLES: THE CANADIAN EXPERIENCE 353, 355 (R. Bruce Morrison &
C. Roderick Wilson, eds., 1986); see also OLIVE PATRICIA DICKASON,
CANADA'S FIRST NATIONS: A HISTORY OF FOUNDING PEOPLES FROM EARLIEST
TIMES 44-45, 194-95 (1992).
4. Hugh A. Dempsey, The Blackfoot Indians, in NATIVE PEOPLES: THE
CANADIAN EXPERIENCE 404, 427 (R. Bruce Morrison & C. Roderick Wilson,
5. Dempsey, supra note 4, at 404.
6. Dickason, supra note 3, at 297.
7. Dempsey, supra note 4, at 430.
8. A.D. Fisher, Great Plains Ethnography, in NATIVE PEOPLES: THE
CANADIAN EXPERIENCE 358, 359 (R. Bruce Morrison & C. Roderick Wilson,
9. Although Europeans and other western peoples may regard this
system of documentation as a manifestation of unreliable hearsay, when
considered within the larger context of Aboriginal cultures, this
characterization misinterprets the essence of its use. Because oral
documentation is communicated to other individuals from the same
cultural tradition, the speaker and the listener will understand what
is being communicated from the same point of reference. Additionally,
the spoken word is as powerful and meaningful to the listener as it is
to the speaker.
JAMES AXTELL, AFTER COLUMBUS: ESSAYS IN THE ETHNOHISTORY OF COLONIAL
NORTH AMERICA 92-93 (1988).
10. Delgamuukw v. British Columbia,  3 S.C.R. 1010, 1075-76.
11. SHIN IMAI, ABORIGINAL LAW HANDBOOK 13 (2d ed., 1999), quoting R
v. Sparrow,  3 C.N.L.R. 160 (S.C.C.) at P81.
12. WALTER HILDEBRANDT ET AL., TREATY 7 ELDERS AND TRIBAL COUNCIL,
THE TRUE SPIRIT AND ORIGINAL INTENT OF TREATY 7 195 (1996).
13. Id. at viii.
14. Id. at 4.
15. Id. at viii.
17. Id. at 230.
18. Id. at 9.
19. Id. at 240.
20. Id. at 240-41.
21. Id. at 240.
22. Id. at 9.
23. Id. at 10.
24. Id. at 25, 75.
25. Id. at 25.
26. Id. at 210.
27. Id. at 210.
28. Id. at 25, 304.
29. Dickason, supra note 3, at 282.
30. Hildebrandt, supra note 12, at 211.
31. Id. at 211-212.
32. Id. at 25.
33. Id. at 15.
34. Id. at 20-23.
35. Id. at 230-31.
36. Id. at 20-22.
37. Id. at 22.
38. Id. at 58.
39. Id. at 124; see also Dickason, supra note 3, at 194.
40. Hildebrandt, supra note 12, at 24.
41. Id. at 124-25.
42. Id. at 143.
43. Id. at 143.
44. Id. at 124.
45. RCAP at vol. 1, s. 2(1).
46. Hildebrandt, supra note 12, at 200.
47. Id. at 195.
48. Id. at 108.
49. Id. at 67, 111.
50. Id. at 111.
51. Id. at 197.
52. Id. at 197.
53. Id. at 23 (emphasis added). Blackfoot elders describe the process
with the phrase, "Anahka aipoihka iipitsinnim aniistoohpi," which
roughly translates to "The person speaking has choked considerably
that which is spoken." Id. at 23.
54. R.S.C., ch. I-5, ss.1-122 (1985) (Can.).
55. Hildebrandt, supra note 12, at 218.
56. Id. at 219.
57. Id. at 144.
58. "Two feet were given up - one for ploughing and two for post
holes." Additional accounts of the negotiations support the assertion
that the government officials agreed to this detail. Id. at 143-45.
59. Id. at 69.
60. Ralph W. Johnson, Fragile Gains: Two Centuries of Canadian and
United States Policy Toward Indians, 66 WASH. L. REV. 643, 649 (1991).
61. Hildebrandt, supra note 12, at 134-35.
62. Id. at 136.
63. Id. at 137.
64. Dickason, supra note 3, at 282.
65. Hildebrandt, supra note 12, at 73.
66. Id. at 198.
67. Id. at 112.
68. Id. at 113.
69. Id. at 120.
70. Id. at 198.
71. Id. at 120.
72. Id. at 120.
73. Id. at 27.
74. In one instance, Commissioner Laird said "that the Blackfoot
should pay the government for driving out the whiskey traders rather
than that the police should pay for timber they had used." Id. at
75. Id. at 242.
76. Id. at 13.
77. Id. at 247-48.
78. Id. at 250-51.
79. Id. at 253-54, 287.
80. Id. at 120.
81. Id. at 253.
82. Id. at 142.
83. Letter from Prime Minister John A. MacDonald to Edgar Dewdney, 18
September 1883, in Edgar Dewdney Papers 481, microfilmed on Glenbow
Group, Section III, part 4: Correspondence (John A. MacDonald)
(Microfilm M-2815, Ottawa) (second alteration in original).
84. Hildebrandt, supra note 12, at 199.
85. Id. at 206, citing Sakej Youngblood-Henderson, Land in British
Legal Thought, unpublished manuscript prepared for the Royal
Commission on Aboriginal Affairs at 203 (1994).
86. Johnson, supra note 60, at 670-71 (citing R. v. Simon,  2
S.C.R. 387, 402).
87. Johnson, supra note 60, at 670.
88. Id. at 649.
89. SHIN IMAI, ABORIGINAL LAW HANDBOOK 13 (2d ed., 1999), quoting R
v. Sparrow,  3 C.N.L.R. 160 (S.C.C.) at P81.
90. See, e.g., R.S.C., ch. I-5, ss. 18(1), 74, 79, 81- 83, 88, 90(2)
91. Imai, supra note 89, at 166.
92. R.S.C. ch I-5 (1985).
93. Id. s. 74.
94. Telephone interview with Sikapii-Whitehorse, member of the
Sovereign Nation of Blackfoot (April 3, 2000).
95. Telephone interview with Sikapii-Whitehorse (April 3, 2000).
96. Telephone interview with Sikapii-Whitehorse (February 1, 2000).
97. ROYAL COMMISSION ON ABORIGINAL PEOPLES, PEOPLE TO PEOPLE, NATION
TO NATION x-xi (1996), quoted in Imai, supra note 89, at 28.
98. Johnson, supra note 60, at 669.
99. Diane F. Orentlicher, Separatism and the Democratic Entitlement,
92 AM. SOC'Y INT'L L. PROC. 131, 132 (1998), quoting JOHN STUART MILL,
CONSIDERATIONS ON REPRESENTATIVE GOVERNMENT (1861), quoted in
UTILITARIANISM, ON LIBERTY, CONSIDERATIONS ON REPRESENTATIVE
GOVERNMENT 392 (1993) (emphasis added).
100. RICHARD H. BARTLETT, THE INDIAN ACT OF CANADA 13 (1980).
101. Id. at 14.
102. The Convention on the Rights and Duties of States adopted by the
Seventh International Conference of American States, Dec. 26, 1933,
165 L.N.T.S. 19.
103. Id. at art. 1.
104.  2 S.C.R. 217, 161 D.L.R. (4th) 385.
105. 161 D.L.R. at 433-34.
107. Id. at 434 (citations omitted).
109. Id. at 434-35 (citations omitted).
110. U.N. CHARTER art. 1, para 2, art. 55.
111. 993 U.N.T.S. 171 (1966), art. 1, para (1), (3).
112. 993 U.N.T.S. 3 (1966), art. 1, para (1), (3).
113. 161 D.L.R. at 435.
114. Id., quoting 993 U.N.T.S. 171, art. 1, 993 U.N.T.S. 3, art. 1.
115. G.A. Res. 2625 (XXV), U.N. GAOR, 25th Sess., Supp. No. 28,
at121, U.N. Doc. A/8028 (24 October 1970).
116. 161 D.L.R. at 436, quoting U.N. General Assembly's Declaration
on the Occasion of the Fiftieth Anniversary of the United Nations,
G.A. Res. 50/6, 9 November 1995, art. 1 (emphasis added).
117. 161 D.L.R. at 436.
118. Telephone interview with Sikapii-Whitehorse, member of the
Sovereign Nation of Blackfoot (February 1, 2000).
119. 161 D.L.R. at 436.
120. Id. at 437.
121. Dickason, supra note 3, at 124.
122. Imai, supra note 89, at 65.
123. 161 D.L.R. at 437-38.
124. Id. at 437-38, 440-441.
125. Id. at 441.
126. Id. at 441-42..
127. Id. at 438-39.
128. Id. at 439.
129. Id. at 440, citing A. Cassese, Self-determination of peoples: A
legal reappraisal (1995), at pp. 171-72.
130. 161 D.L.R. at 440 (emphasis added).
131. Id. at 442.
132. 993 U.N.T.S. 3 (1966).
133. 993 U.N.T.S. 171 (1966).
134. G.A. Res. 1803 (XVII), 17 U.N. GAOR Supp. No. 17 at 15,
U.N. Doc. A/5217 (1962).
135. U.N. GAOR, 3rd Sess., Pt. I, Resolutions, at 71, U.N. Doc. A/810 (1948).
136. Dempsey, supra note 4, at 432.
137. Telephone interview with Sikapii-Whitehorse, member of the
Sovereign Nation of Blackfoot (February 1, 2000).
138. 993 U.N.T.S. 3 (1966).
139. Id. art. 6(2).
140. Id. art. 11(1).
141. 993 U.N.T.S. 171 (1966).
142. Telephone interview with Sikapii-Whitehorse, member of the
Sovereign Nation of Blackfoot (April 3, 2000).
144. 993 U.N.T.S. 171 (1966).
145. 993 U.N.T.S. 3 (1966).
146. Imai, supra note 89, at 71-72.
147. Id. at 74.
148. G.A. Res. 1803 (XVII), 17 U.N. GAOR Supp. No. 17 at 15,
U.N. Doc. A/5217 (1962).
149. Id., ¶ 1.
150. Id., ¶ 7.
151. Imai, supra note 89, at 65.
152. ANN POHL, CITIZENS FOR PUBLIC JUSTICE, BUILDING INTERNATIONAL
AWARENESS ON ABORIGINAL ISSUES 7 (March 2000)
153. Id. at 7.
154. Id. at 17.
155. The following account portends an unsettling future:
The 1998 APEC meeting provides an example. Prime Minister Jean
Chrétien spoke at a public social event about international human
rights concerns vis-à-vis Malaysia, which at that time included child
labour exploitation and the violations of rights of opposition
politicians. Reporter John Stackhouse captured Malaysian Prime
Minister Mahathir Mohammad shrugging off this criticism with the
following remarks: "'I'm concerned with human rights world-wide,
including Canada . . . I'm concerned with the red Indians, I don't see
them at APEC.'"
Id. at 7, citing THE GLOBE AND MAIL, November 16, 1998.
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