A Reconciliation Without Recollection?: An Investigation of the Foundations of Aboriginal Law in Canada

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.

Table of Contents:
Foreword John Borrows Foreword James Tully Preface Acknowledgments Introduction Part 1 Reconciliation without Recollection 1.1 Reconciliation in Canadian Jurisprudence 1.2 Reconciliation as Picture Thinking A) Historicism B) The Ship of State 1.3 History, Law, and Legitimacy 1.4 Problem of Reconciliation as Problem of Foundations 1.5 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. Mill 2.2 The Science of Savage Character: The Uncivilized and Mill’s Philosophy of History A) Governing the Uncivilized: The Role of the Intermediate Body B) Peace, Order, and Good Government: Mill and the Indian Question 2.3 Reading the Right of History: Universal History and the Extinction Thesis 2.4 From Enfranchisement to Reconciliation: Culturalism and Indirect Rule Part 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 1876 A) Imperial Federalism B) Imperial Civilizing C) Assimilation and Indirect Rule D) Striation or Continuity? 3.2 The Indian Question and the Dominion 3.3 The Six Nations Status Case A) The Six Nations of the Grand River B) The League of Nations and the Mandate System C) The Documents 3.4 A Building Crisis of Legitimacy Part 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 Powers B) Interjurisdictional Immunity and s.91(24) C) The Theory of Enclaves D) The Uncertain Measure of Indianness E) Section 88 and Provincial Law 4.2 The Definition of Indians and the Authority of Bands                                          A) Legislative Origins B) The Judicial Definition of Indians C) The Judicial Definition of Bands D) Custom Band Councils and the Question of Jurisdiction 4.3 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, 1985 A) Line One: Legislative Renovation B) Line Two: Land Claim Agreements C) Line Three: Constitutional Change D) The Penner Report  E) The Problem of Implementing the New Relationship F) The Era of Indirect Rule and the Mechanism of Deferral 5.2 Reconciliation and Implementation A) Unsettling the Ship of State B) Recollection without Historicism C) Implementing Reconciliation-with-Recollection Select Bibliography Index