Naturally the Canadian tribes were not subjugated by Great Britain; rather, they were occupying land that had been partially seized by military means. However, the tribes were subjected to this legal doctrine and never contested it. It is noteworthy that throughout this record, Indian tribes, government representatives, or citizen groups advocating on their behalf have virtually never filed a lawsuit. The Indian-Eskimo Association of Canada-sponsored report emphasizes this issue, noting that
“Indians have been very dependent upon the Federal Government, as they have, generally speaking, not gone to court to test or enforce their rights.”
Unfortunately, this has led to a lack of clarity in our legal system regarding their legal rights and aboriginal claims. Since they were not well defined, the government might have simply ignored them when the frame of reference shifted, which is exactly what happened.”
As a result of this historical development, the report states that “the Crown requested that half of Canada’s Indians enter into treaties.” Despite the Federal Government’s explicit policy and the Royal Proclamation of 1763, the other half were never granted that chance. Half of Canada’s Indians had their claims handled in an orderly manner, based on their possessory rights to surrender. The legality of handling land in the remaining places is seriously called into doubt by this. Should a legal recourse be available for non-treaty regions now held by non-Indians, it might just consist of a compensation claim.”
This last observation implies that it is likely impossible for the Indians of Canada to obtain a judgment returning land to tribal owners, as was obtained by the Walapai Indians of Arizona, in the absence of a clear record of court decisions supporting aboriginal entitlement.
This highlights the disparate policies that emerged from the Proclamation of 1763. Tribal authority became subservient to the will of the governing power in both nations as the higher political authority was seen as innate to the dominant civilization. However, the idea that tribal sovereignty persisted in the US only to the extent that it was expressly restricted was bolstered by the Marshall rulings and other court rulings. As a result, the Indian Reorganization Act of 1934 acknowledged that Indian tribes had the ability to create written constitutions that included “all powers vested in any Indian tribe or tribal council by existing law.”
These “vested powers” encompassed a broad range of local discretion via enumeration. In Canada, however, the prevailing view (Campbell v. Hall), as previously mentioned, was that the “Indian nations” renounced their independence and submitted to the monarch. Because the Indian Act of Canada is predicated on this notion of plenary authority, its restrictions on local initiative are comparatively granular.
Native American land titles were impacted by another area of divergent development. Once more, the fundamental theory was the same in both nations, stating that the government had the legal title but was subject to the tribe right of possession and usage. The lands were unalienable, but the tribes had the option to give the government notice of their interest, or in the case of a tribe breakup, the sovereign would acquire perfected legal title.
The definition of tribal right was clarified and expanded upon in a series of rulings rendered by US courts. As a result, it has been decided that the Indian right of possession is “sacred” and may only be terminated with permission and proper payment. This right was acquired even in the lack of confirmation and acknowledgment by a treaty.
Tribal reserves were the remaining estates that the tribes kept after the country was granted a bigger portion of their ancestral lands; they were not gifts of land from the US. Lastly, the tribes may always file a lawsuit to force the US to compensate them for wrongdoings, with their permission now officially recognized under the Indian Claims Commission Act. This clarity was lacking in Canadian law and practice.
In accordance with the idea that the sovereign has legal ownership, the Indian Act defines an Indian reserve as a piece of land set aside by the crown for the use and profit of an Indian band. The nature of the “use and benefit” bestowed by the crown remains undefined. It was proposed in the St. Catherine’s case that Indian rights to the land extended beyond hunting and fishing, but this idea has not been investigated further.
As a contemporary author noted, “It is immediately evident that this right might well extend to the beneficial use of the produce, timber, and minerals inherent in or attached to such lands, if indeed the Indian interest is equivalent to the usufruct of the lands reserved for them.”
The possible financial gains that the Indians could receive from the acceptance of these claims should prompt more thoughtful consideration and, ideally, more enlightened action on the part of the Canadian government and the majority of the provincial governments if one considers the possibility that the Province cannot by law extinguish this interest.”