Chapter 4: The Fiction of Aboriginal Sovereignty
RCAP: Aboriginal peoples were and are nations in both the cultural and political sense of this term. Their nationhood is concomitant with their sovereignty.
Sovereignty can only exist in civilized society, according to Flanagan. The State or the Nation has been applied to various groups erroneously. Self-government as an entrenched ‘third order’ would have complicated legal ramifications and Flanagan is weary of the rhetoric of sovereignty which must be curtailed. Analyzing how Europe asserted authority over the New World, he demonstrates that Europeans saw the indigenous people lacked sophisticated States and used the argument of Terra nullius “no man’s land” to gain control. Spain usurped the agriculturally based Mexico and Peru as these Christians felt they had the right to govern heathens. Also, King George III was explicit about sovereignty in the Royal Proclamation of 1763 as semantics for British conquest. The US Supreme Court’s John Marshall (1823) asserts, on the principle of sovereignty, that conquest prevails over claims of civility. Therefore US Congress is competent to legislate in any way whatsoever regarding aboriginals. Marshall coined the term ‘domestic dependent nations’ to describe the status of American Natives. Yet the Charter entrenches sovereignty of aboriginals under section 35 (1) of the Constitution. Legislative jurisdiction, in the US Congress can override anything decided by an Indian tribal government; Parliament would not have that same power if the RCAP was fully realized.