By Dan Russell
Written by way of a working towards Aboriginal attorney, this e-book argues that Aboriginal self-government in Canada may most sensible be accomplished through a constitutional modification, no longer via treaties, as has been the preoccupation of provincial governments on the grounds that 1982.
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Not only are these practices culturally based, but many also have strong religious significance. Participation in them is generally voluntary, but in some circumstances, as in the case of the Laguna people of New Mexico, Pueblo members are required by law each year to participate in certain traditional customs (the Myadormos Ordinance is discussed in Chapter 6). They include not only practices that rehabilitate the physical structures of the Pueblo but also customs designed to reinforce the cultural and spiritual elements of this community.
Occupation of the field by vague assertions is not enough to deter a state from arguing the Cotton Petroleum interpretation of the preemption test. However, the Supreme Court may further clarify this test and rein in its extreme limits. The preemption doctrine has not eliminated the principles of Worcester nor the Williams v. Lee infringement test. Courts view the preemption test as simply a further elaboration of the meaning of Worcester, as is the infringement test. Significantly however, both permit state intrusion upon tribal authority, which was not generally inferred from the original remarks of Justice Marshall when he prohibited state intrusion in the Worcester decision.
But is the fundamental assumption realistic? Should Canadian governments be so concerned about this possibility? Probably not. Aboriginal communities are well aware of the issue, for the Charlottetown discussions dealt specifically with it. Conferences that address the general topic of Aboriginal self-government often include a session or two about which communities are to be self-governing. The final report of the Royal Commission on Aboriginal Peoples provided its own recommendations on the matter.