Native Sovereignty and Canadian Sovereignty: A Debate

The question of Aboriginal rights in Canada has received little attention from the public and policymakers. As such, the majority of Canadians are oblivious of the pertinent issues that affect Aboriginals in terms of land ownership among the Natives, greater autonomy, and self-governance. The issue of Native sovereignty is sensitive and it elicits heated debate between its proponents and critics with each side raising compelling arguments. The pertinent question between these two sides is whether Native sovereignty can co-exist with Canadian sovereignty. On the one side, supporters of Native sovereignty argue that the Indian Act of 1876 is a paternalistic tool to destroy traditional Native institutions while assimilating and integrating Native people into the larger Canadian society. While this Act gives some powers to the band of councils that deal with the Department of Indian Affairs and Northern Development, a growing number of Natives feel that full Native sovereignty is needed for Natives to overcome their colonial status. On the other hand, opponents of this idea argue that the quest for Native sovereignty as currently demanded by the Natives does not fit into Canada’s continued existence. This paper discusses Roger Townshend’s views as a proponent of Native Sovereignty and Thomas Flanagan’s take as a critic of this idea.

Roger Townshend’s Views

Roger Townshend is a reputable lawyer whose practice mainly focuses on Aboriginal rights, Constitutional human rights, and administrative law. His primary work has been advising and litigating land claims for Aboriginals in Canada at levels starting from Provincial courts to the Supreme Court. Townshend’s work in fighting for Aboriginal constitutional rights and Native land claims explains why he supports Native sovereignty. In his article, Townshend presents a case for Native sovereignty starting by comparing what Aboriginals and non-Aboriginals think about this issue. According to the author, on the one hand, the average non-Aboriginal believes in the legitimacy of the Canadian state and its legal power over Canadian territory. On the other hand, the average Aboriginal person “views much of the power exercised by the Canadian state as illegitimate, oppressive, and infringing on Aboriginal governance powers” (Townshend, 2008, p. 42). This assertion is based on the view that before the arrival of Europeans, Aboriginal nations in North America were independent with functional and stable cultures, economies, and political systems – and existed as sovereign nations. However, Europeans viewed these nations as inferior with backward cultures and this perception has blinded the majority of non-Aboriginal Canadians.

Interestingly, the drafters of the US Constitution borrowed significantly from the Iroquois confederacy same as European political theorists. Therefore, it is ironic that the European model of sovereignty is acceptable, yet that of the Natives is unacceptable. Additionally, when the Europeans arrived, they treated these nations as sovereign entities and engaged with them as equals. As Townshend (2008) posits, “International law then and now recognized changes in sovereignty based on conquest, discovery, and settlement, or treaty” (p. 43). Therefore, based on this definition, Canada did not conquer or discover the Native lands, which nullifies the idea of Canadian jurisdiction in the context of international law. Canada only revoked some treaties but this act does not amount to conquest. Additionally, in terms of discovery and settlement, Canada did not discover or settle in Native lands. Therefore, Canadian sovereignty is illegitimate and Natives should be accorded their sovereignty with new structures that reflect the distinct cultural, spiritual, political, and economic attributes of Aboriginals, based on the provisions of international law.

Thomas Flanagan’s Views

Flanagan, a former political science professor, is a conservative political activist. He has been extensively involved in disputing various historical interpretations of Aboriginal history through research and publications. He has defended the government’s actions in response to the North-West Rebellion, which was against the Canadian authorities by the Metis, which could easily explain his stand on the issue of Native sovereignty. Flanagan starts his article by clarifying the meaning of “sovereignty” based on political science. According to him, only states should enjoy sovereignty, and thus this topic should not arise unless “there is, as in the classical definition of a state, an organized structure of government ruling over a population within defined territorial boundaries” (Flanagan, 2008, p. 48). Based on this argument, Native societies were not sovereign before the coming of Europeans because they were not states. In other words, while these societies had organized political processes that conferred rank and dominance to solve conflicts, such systems do not amount to statehood or sovereignty. Flanagan argues that Native people do not and cannot constitute a single people because they are deeply divided in terms of customs, history, language, and religion. Additionally, the Natives do not have the means to form independent states paying their own and defending themselves.

Moreover, the author argues that the idea that sovereignty could be divided into two based on the Charlottetown Accord is misconstrued within the context of Native sovereignty. Currently, Canada has over 700,000 status Indians from more than six hundred bands living on over 2,200 reserves in different provinces. The overarching question is how this far-flung archipelago could be organized into a single government even if the Natives were given the ever-elusive sovereignty status. The only valid argument would be that the various small bands would each be allowed to have their institutions of government and criminal justice systems among others according to the provisions of the third order of government. However, how would bands of approximately 1000 living in fragmented remote areas without any economic prospects or natural resources operate an untested form of governance? According to Flanagan, the quest for Native sovereignty can only remain a dream, which is detached from the realities of modern governance and public affairs.

Comparing and Contrasting Flanagan and Townshend

Both Flanagan and Townshend compare in various ways, especially on their underlying assumptions and political biases. First, both have a longstanding history of supporting causes in line with their beliefs. On the one hand, Flanagan is a conservative who has openly challenged the idea of Native sovereignty. On the other hand, Townshend’s law career has been characterized by defending Native rights. Therefore, both are expected to have clear-cut biases on this topic because none is impartial in his thinking. Additionally, they both rely extensively on personal expertise on the topic, research data, and work done by others to validate their claims.

However, they differ in many ways. First, their style of argument is different in various aspects. On the one hand, Townshend is tempered in his claims and he uses a friendly tone seeking to engage the reader while presenting his arguments. He starts by laying the ground on why the issue of Native sovereignty elicits divided opinions among Aboriginals and non-Aboriginals. His points are moderated with some objectivity. On the other hand, Flanagan is abrasive in his arguments and he takes a highly opinionated approach in his claims, which makes his article a subjective one. Even though he uses a two-sided approach to present his ideas, he fronts the opposing side for purposes of bashing the underlying points. Instead of allowing for objective arguments, he uses ultimatums, such as “…disparate people are not going to be recognized as independent sovereign states, now or ever” (Flanagan, 2008, p. 49). Such language is closed to discussion, and it characterizes Flanagan’s point of view, which is a black-and-white approach. On his part, Townshend presents one-sided arguments without exploring what the critics of his position have to say about this topic.

Conclusion

Flanagan and Townshend offer varying views on whether Native sovereignty should be allowed based on their personal convictions and political perspectives. Townshend believes that Native sovereignty should be allowed because Canada did not conquer, discover, or settle in Native lands, which are the broadly accepted ways of having jurisdiction over an area based on international law. However, Flanagan reputes this position by holding that the Natives were never sovereign in the first place, and thus they cannot claim to own what they never lost. Of the two positions highlighted in this paper, Townshend’s position is more convincing. His argument that Natives were sovereign in the sense of international law before the arrival of Europeans makes sense. Additionally, the claim that Canada did not conquer or discover the Native lands is true because no such records exist in the history of Canada. I have learned that Native sovereignty is a plausible idea based on Townshend’s arguments.

References

Flanagan, T. (2008). Native sovereignty: Does anyone really want an Aboriginal archipelago?

Townshend, R. (2008). The case for Native sovereignty.