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The current framework for reconciliation between Indigenous peoples and the Canadian state is based on the Supreme Court of Canada's acceptance of the Crown's assertion of sovereignty, legislative power, and underlying title. The basis of this assertion is a long-standing interpretation of Section 91(24) of Canada's Constitution, which reads it as a plenary grant of power over Indigenous communities and their lands, leading the courts to simply bypass the question of the inherent right of self-government.In A Reconciliation without Recollection?, Joshua Ben David Nichols argues that if we are to find a meaningful path toward reconciliation, we will need to address the history of sovereignty without assuming its foundations. Exposing the limitations of the current model, Nichols carefully examines the lines of descent and association that underlie the legal conceptualization of the Aboriginal right to govern.Blending legal analysis with insights drawn from political theory and philosophy, A Reconciliation without Recollection? is an ambitious and timely intervention into one of the most pressing concerns in Canada.
Contents
Foreword John Borrows Foreword James Tully PrefaceAcknowledgments Introduction Part 1 Reconciliation without Recollection1.1 Reconciliation in Canadian Jurisprudence1.2 Reconciliation as Picture ThinkingA) HistoricismB) The Ship of State1.3 History, Law, and Legitimacy1.4 Problem of Reconciliation as Problem of Foundations1.5 A Genealogy of the Indian Act Part 2 A Genealogy of Reconciliation: Civilizing, Extinction, and Culturalism as the Discursive Foundations of the Indian Act 2.1 Liberty and Legitimate Despotism: The Liberal-Imperialism of J.S. Mill2.2 The Science of Savage Character: The Uncivilized and Mill's Philosophy of HistoryA) Governing the Uncivilized: The Role of the Intermediate BodyB) Peace, Order, and Good Government: Mill and the Indian Question2.3 Reading the Right of History: Universal History and the Extinction Thesis2.4 From Enfranchisement to Reconciliation: Culturalism and Indirect RulePart 3 A Despotism for Dealing with Barbarians: A Survey of the Foundations of Indian Policy in Canada 3.1 Pre-Confederation to the Indian Act of 1876A) Imperial FederalismB) Imperial CivilizingC) Assimilation and Indirect RuleD) Striation or Continuity?3.2 The Indian Question and the Dominion3.3 The Six Nations Status CaseA) The Six Nations of the Grand RiverB) The League of Nations and the Mandate SystemC) The Documents3.4 A Building Crisis of LegitimacyPart 4 A Law without Measure for a Land without Citizens: The Indian Act in Canadian Jurisprudence 4.1 The Authority of s.91(24) A) St Catherine's Milling, s.91(24), and the Division of PowersB) Interjurisdictional Immunity and s.91(24) C) The Theory of EnclavesD) The Uncertain Measure of IndiannessE) Section 88 and Provincial Law4.2 The Definition of Indians and the Authority of Bands A) Legislative OriginsB) The Judicial Definition of IndiansC) The Judicial Definition of BandsD) Custom Band Councils and the Question of Jurisdiction4.3 Tsilhqot'in Nation and the Meaning of s.91(24) Part 5 An Era of Reconciliation, An Era of Indirect Rule: From the White Paper to the Full Box of Rights 5.1 The Hidden Player: Policy from Calder to the Indian Act, 1985A) Line One: Legislative RenovationB) Line Two: Land Claim AgreementsC) Line Three: Constitutional ChangeD) The Penner Report E) The Problem of Implementing the New RelationshipF) The Era of Indirect Rule and the Mechanism of Deferral5.2 Reconciliation and ImplementationA) Unsettling the Ship of StateB) Recollection without HistoricismC) Implementing Reconciliation-with-RecollectionSelect BibliographyIndex
