Reassessing the Paradigm of Domestication: The Problematic of Indigenous Treaties

Abstract

The struggle of Indigenous peoples to gain recognition for their view of treaties is frequently a source of conflict between Indigenous and state parties, both in Canada and abroad. In this article, the author challenges the primitivist assumptions which continue to inform modern treaty jurisprudence, perpetuating the supremacy of state interpretation. The article begins by questioning the orthodox approach to relations between European powers and Indigenous peoples. Emphasis is placed on the process of domestication through which states aimed to subvert the position of Indigenous peoples as peoples, often ignoring or unilaterally amending treaties. This process resulted not only in the absorption of vast territories traditionally held by Indigenous peoples into the legal and political systems of the colonizers, but also in the emergence of a paradigm by virtue of which the factor of domestication was endowed with absolute explanatory value. The article also explores the views held by Indigenous peoples themselves on the treaty issue. It is argued that these views rely on a perspective recalling that of the Law of Nations era. Finally, the author addresses the relationship between law and culture in the treaty context. She argues that by defining the rights of Indigenous peoples in culturalist terms, one tends to blur the differences between Indigenous peoples and minorities. In contrast, when recognition of rights is derived from a relationship involving sovereign entities, the question of Indigenous peoples' rights is placed on another plane. The significance of this dichotomy clearly appears from a comparison of domestic efforts, such as the activities of the Royal Commission on Aboriginal Peoples, with international ones, especially the UN Study on treaties between Indigenous peoples and states.

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