Freedom and indigenous constitutionalism / John Borrows.
2016
KE7709 .B677 2016 (Map It)
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Details
Author
Title
Freedom and indigenous constitutionalism / John Borrows.
Published
Toronto ; Buffalo ; London : University of Toronto Press, [2016]
Copyright
©2016
Call Number
KE7709 .B677 2016
Cover Title
Freedom & indigenous constitutionalism
ISBN
9781442630932 (cloth)
1442630930 (cloth)
9781442629233 (paper)
1442629231 (paper)
1442630930 (cloth)
9781442629233 (paper)
1442629231 (paper)
Description
x, 371 pages ; 24 cm
System Control No.
(OCoLC)926742798
Summary
"Indigenous traditions can be uplifting, positive, and liberating forces when they are connected to living systems of thought and practice. Problems arise when they are treated as timeless models of unchanging truth that require unwavering deference and unquestioning obedience. Freedom and Indigenous Constitutionalism celebrates the emancipatory potential of Indigenous traditions, considers their value as the basis for good laws and good lives, and critiques the failure of Canadian constitutional traditions to recognize their significance."-- Provided by publisher.
"Demonstrating how Canada's constitutional structures marginalize Indigenous peoples' ability to exercise power in the real world, John Borrows uses Ojibwe law, stories, and principles to suggest alternative ways in which Indigenous peoples can work to enhance freedom. Among the stimulating issues he approaches are the democratic potential of civil disobedience, the hazards of applying originalism rather than living tree jurisprudence in the interpretation of Aboriginal and treaty rights, American legislative actions that could also animate Indigenous self-determination in Canada, and the opportunity for Indigenous governmental action to address violence against women."-- Provided by publisher.
"Demonstrating how Canada's constitutional structures marginalize Indigenous peoples' ability to exercise power in the real world, John Borrows uses Ojibwe law, stories, and principles to suggest alternative ways in which Indigenous peoples can work to enhance freedom. Among the stimulating issues he approaches are the democratic potential of civil disobedience, the hazards of applying originalism rather than living tree jurisprudence in the interpretation of Aboriginal and treaty rights, American legislative actions that could also animate Indigenous self-determination in Canada, and the opportunity for Indigenous governmental action to address violence against women."-- Provided by publisher.
Bibliography, etc. Note
Includes bibliographical references (pages 215-358) and index.
Record Appears in
Table of Contents
Miigwech
ix
Introduction
3
1.
Physical Philosophy: Mobility and Indigenous Freedom
19
A.
Methodologies of Mobility: Physical Philosophy
21
B.
Models of Mobility
23
C.
Manipulating Mobility: Settled and Unsettled Law
27
i).
`Damned if We Move': The Too Unsettled Thesis
29
ii).
`... and Damned if We Don't': The Too Settled Thesis
31
D.
Recognizing and Affirming Indigenous Physical Mobility
35
E.
Recognizing and Affirming Indigenous Conceptual Mobility
40
i).
Indigenous Governments and Personal Relationships
41
ii).
Indigenous Governments and Institutional Relationships
44
F.
Conclusion
48
2.
Civil (Dis)Obedience, Freedom, and Democracy
50
A.
Moving Beyond Abstractions: Remembering Grounded Histories
52
B.
Group One: Best Practices (so far) in Indigenous Civil (Dis)obedience
55
i).
Moresby Island, Haida Gwaii, British Columbia
55
ii).
James Bay
61
iii).
Chippewas of the Nawash
65
iv).
Clayoquot Sound
70
C.
Group Two: Helping Others, Failing at Home
74
i).
Oka/Kanesatake, Quebec
74
ii).
Burnt Church
78
D.
Group Three: Diminishing Democracy and Eroding Freedom, Generally and Specifically
84
i).
Anicinabe Park
84
ii).
Algonquins of Barriere Lake
88
iii).
Temagami Anishinaabe
94
E.
Conclusion
100
3.
Indigenous Freedom and Canadian Constitutionalism
103
A.
Constitutional Complexities
105
B.
Constitutional Suspicions
110
C.
Constitutional Discussions
112
D.
Constitutional Amendment: Strategies and Debates
115
E.
Constitutional Entrenchment
120
F.
Constitutional Conferences and Accords
122
G.
Conclusion
126
4.
(Ab)Originalism and Canada's Constitution
128
A.
(Ab)Originalism and Living Trees: Analysing Modes of Interpretation
129
B.
(Ab)Originalism and the Canons of Construction
136
i).
Treaties, Originalism, and the Canons of Construction
137
ii).
Aboriginal Rights, Originalism, and the Canons of Construction
139
C.
(Ab)Originalism as Adverse Discrimination
142
D.
Three Alternatives to (Ab)Originalism
147
E.
Indigenous Legal Traditions, Living Trees, and Originalism
151
F.
Conclusion
156
5.
Legislation and Indigenous Self-Determination in Canada and the United States
161
A.
Indigenous Control of Federal Services
166
B.
Protection of Indigenous Cultures and Communities
170
C.
Indigenous Control in Relation to Economic Development, Environment, and Natural Resources
175
D.
Conclusion
179
6.
Aboriginal and Treaty Rights and Violence against Women
181
A.
Problem and/or the Answer: Indigenous Self-Determination and Violence against Women
184
B.
Indigenous Governments: Can They Be Trusted?
188
C.
Section 35(1) and Violence against Women
196
i).
Aboriginal Rights: Violence against Women and the `Integral to the Distinctive Culture' Test
197
ii).
Violence against Women and Treaties
200
D.
Conclusion
202
Conclusion
205
Pitchii
209
Notes
215
Index
359