First Nations Self-Government in Canada

Abstract

AbstractThe case law reveals the courts' willingness to uphold federal intervention in Indian government, justifying such intervention on the grounds that Congress has plenary power over Indian affairs, that a ward-guardian relationship exists between Indians and the American government, or that a particular action was political and therefore not open to review (243). Yet, courts have characterized the jurisdiction still exercised by tribal governments as flowing from retained sovereignty rather than as delegated by Congress. American tribes have been described as possessing » theoretical sovereignty and some self-governing powers« 244). These powers include determining membership, regulating probate and family matters, deciding whether to lease or surrender Indian land, allotting land to members, taxing those living on the reserve, controlling tribe assets, establishing tribal courts, and passing »municipal-type« laws (245). The Bureau of Indian Affairs still has significant powers, however. The Commissioner of the Bureau is responsible for »the management of all Indian affairs, and (for) all matters arising out of Indian relations« (246). This power can be used to disallow tribe ordinances (247). The Commissioner also controls money appropriated for the »benefit, care, and assistance of the Indians;« (248) and because of the size of the Bureau, a substantial amount of this money goes to administration (249). However, although Indian tribes in the United States are not fully self-governing, it appears that »as tribes adopt more and more American style governmental institutions ... the Bureau seems willing to permit a substantial degree of tribal government (250).