Worcester v. State of Georgia

U.S. Supreme Court -- 31 U.S. 530 (1832)

USA Application of laws to AboriginalsDoctrine of discovery

Summary

This American decision had been used by the Supreme Court of Canada since the very beginning of the development of Canadian Aboriginal law. It is one of the famous decisions rendered by the “Marshall court”.

Historically, Indians were considered as nations by Great Britain. A European nation acquired title to Indian lands only if the occupants decided to cede them.

Issue

Are Georgia’s laws in effect on Cherokee territory?


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Dick v. The Queen

Supreme Court of Canada – [1985] 2 S.C.R. 309

British Columbia Application of laws to AboriginalsIndiannessJurisdiction over Indians

Summary

Delivered the same day as Jack and Charlie.

The Court describes the essence of “Indianness”, which is of federal jurisdiction. Indianness is what make an Indian “Indian”.

The Court specifies the criteria that a provincial legislation must meet in order to apply to Indians, even though it touches Indianness : it must be of general application, its objective must not be to limit the group’s right, et must not infringe on a treaty or a federal legislation. In this case, the Court considers that the provincial law applies even though it touches Dick’s aboriginal rights and Indianness because it meets the criteria.

The facts in this case happened before the enactment of section 35 of the Constitution Act of 1982. Today, this would prevent a provincial law from infringing on aboriginal rights without justification.

Issue

Is year-long hunting for subsistence central to the culture and lifestyle of the Shuswap so that it cannot be restricted by the Wildlife Act without attacking their core of “Indianness”?

If so, is the Wildlife Act constitutionally inapplicable because it is a provincial legislation affecting the core of “Indianness”, or was it incorporated into federal legislation with the application of sect. 88 of the Indian Act?


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Simon v. The Queen

Supreme Court of Canada – [1985] 2 S.C.R. 387

Nova Scotia Application of laws to AboriginalsTreaties

Summary

Simon is one of the first cases about peace and friendship treaties in Canada. The Court recognizes that peace and friendship treaties can be considered as treaties within the meaning of section 88 of the Indian Act and, as such, exempt their beneficiaries from the application of certain provincial laws.

Issue

Is the Treaty of 1752 valid and still in force and, if so, does it guarantee hunting rights for the Micmacs? Is it included within the meaning of treaty in section 88 of the Indian Act and can Simon invoke an exemption from prosecution under the Lands and Forests Act of Nova Scotia as a direct descendent of the Micmacs who signed the Treaty with the British in the first place?


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R. v. Badger

Supreme Court of Canada – [1996] 1 S.C.R. 771

Alberta Application of laws to AboriginalsTreaties

Summary

This case summarizes and specifies the legal framework surrounding the interpretation and application of historical treaty rights.

The Court insists on the honour of the Crown in its dealings with Indians, and reiterates that it is up to the Crown to prove, by an absolute evidence, that an aboriginal or treaty right has been extinguished by a clear and plain intention by the government.

Issue

  1. Has the right to hunt on Treaty 8 land been extinguished?
  2. If not, can it be exercised on privately owned lands situated in Treaty No. 8 territory?
  3. Does the Wildlife Act apply to status Indians under Treaty No. 8?


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Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture)

Supreme Court of Canada – [2002] 2 S.C.R. 146

British Columbia Application of laws to AboriginalsFiduciary dutyJurisdiction over Indians

Summary

The Supreme Court confirmed that a provincial law is not unconstitutional simply because one or some of its provisions specifically refer to Aboriginals. We must assess the provision, and the general scheme of the Act, to determine whether they apply or not.

Issue

Are the paragraphs of the Heritage Conservation Act that specifically target Aboriginals unconstitutional, since the legislative jurisdiction over Indians is federal?


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R. v. Morris

Supreme Court of Canada – [2006] 2 S.C.R. 915

British Columbia Aboriginal rightsApplication of laws to AboriginalsTreaties

Summary

The Court confirms that public safety limits aboriginal and treaty rights, and that the means used to practice treaty rights can evolve in time.

Issue

Is the Tsarlip’s right to hunt using illumination protected by treaty? If so, can a provincial regulation affect this right?


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R. v. Nikal

Supreme Court of Canada – [1996] 1 S.C.R. 1013

British Columbia Aboriginal rightsApplication of laws to AboriginalsIndian Act

Summary

Delivered on the same day as R. v. Lewis.

As in Lewis, the Court bases itself on the intention of the Crown to determine if the band has the right, or not, to regulate a waterway. Here, the Aboriginal won its case since the Court considered that even if the band could not regulate, the provincial regulation did not apply either since it infringed its aboriginal right to fish.

Issue

Does the fishing by-law adopted by the Band apply to the section of the Buckley River that crosses the reserve? Do the British Columbia Fishery Regulations and the requirement for Aboriginal people to have a fishing licence infringe on Nikal’s aboriginal right to fish for food as protected under section 35 (1) of the Constitution Act, 1982?


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R. v. Marshall

Supreme Court of Canada – [1999] 3 S.C.R. 533 – “Marshall II”

Nova Scotia Application of laws to AboriginalsTreaties

Summary

This case was a response to growing discontent following Marshall I, that recognized that the Mi’kmaq had a treaty right to fish.

The Court refused that a new trial be held, but reiterated many key principles in terms of interpretation and application of treaty rights. These rights are limited, the minister has the responsibility to apply regulation ensuring the conservation of the resource, the minister can also limit aboriginal rights in the public interest (including the “pursuit of economic and regional fairness”), and Aboriginals must be consulted about restrictions to the exercise of their rights.

Issue

Should a new trial be held to restrict the issues covered in Marshall I, and to determine whether the application of fishing regulation that has the effect of restricting the exercise of the Mi’kmaq treaty rights can be justified for conservation or other motives?


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Cardinal v. Attorney General of Alberta

Supreme Court of Canada – [1974] S.C.R. 695

Alberta Application of laws to AboriginalsJurisdiction over IndiansLands reserved for Indians

Summary

In this decision, the Supreme Court varied from U.S. law regarding the application of laws to Indian lands. In Canada, under certain conditions, provincial laws of general application can apply to Indians and on reserve lands.

Issue

Can a provincial law, in this case, the Wildlife Act, apply to Indians on an Indian reserve?


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Francis v. The Queen

Supreme Court of Canada – [1956] S.C.R. 618

Quebec Application of laws to AboriginalsInternational lawTaxationTreaties

Summary

This is a test case of the Mohawk to determine the application of article III of the Jay Treaty, signed by the British Crown and the United States. This article provides that the Indians should not pay duty fees when crossing the boundary with goods.

The Supreme Court rejected the application of the Jay Treaty, affirming that it must be ratified by statute in order to enter into force in Canada.

The Mitchell case, in 2001, complemented this decision. The argument made regarding Aboriginal rights of the Mohawk to cross the boundary without paying duty was not accepted by the Court.

Issue

Do Mohawks from the St. Regis Band have a right to exception from customs and excise taxes protected by the Jay Treaty or the Indian Act?


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