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Chapter 5: The Great Chain of Precedent

Suddenly, even the most hardened land-market capitalist assumed the mantle of zealous advocate of the Indians’ natural-law right to engage in unregulated real estate transactions. Neither the King, nor the landed colonies “owned” the lands on the frontier, argued these speculators. The Indian tribes occupied these lands as free and sovereign peoples. By natural law, the Indians could therefore sell their rights to the land to whomever they pleased, the Proclamation of 1763 and the landed colonies’ charter claims notwithstanding.

—Legal scholar Robert A. Williams, Jr., 1990, The American Indian in Western Legal Thought: Discourses of Conquest.

Honour Among Thieves. South of the Border

In British law, one of the principal means that judges use to reach decisions about particular cases is through the use of precedent. Precedents are the decisions reached by previous judges in similar cases. A contemporary judge compares the facts before her or him, searches for cases that dealt with similar fact patterns, and interprets and applies the reasoning and findings of judges in those previous cases to the one at hand. This is referred to in legal parlance as the “doctrine of stare decisis.” It is based on the premise that fairness and equality before the law requires that like cases should be decided alike. Reliance on precedent is often pointed to as an inherently conservative characteristic of law, whereby justification must always be anchored in the past. However, contemporary critics argue that the notion that past precedents limit and determine present judgments is frequently overstated by representatives of the judiciary. Anthropologist Michael Asch and Law Professor Catherine Bell, for example, argue that “it is not precedent itself that binds, but judicial interpretation of the past and its relevance to the present…. Adopting interpretive strategies, a judge chooses one precedent in favour of another, appearing to find, rather than create law. The appearance of finding is important because it deflects charges of result-oriented reasoning and judicial legislation.”¹ Legal scholars Gerald Torres and Kathryn Milun, point out that the rule of precedent serves more importantly to consolidate law’s desire to define the future. They write, “Law, by drawing constantly on precedent to develop itself, strives to collapse linear temporal sequence by bringing the past forward and, by creating a new precedent, drawing the future into itself.”² In a ritual practice judges call “citing the authorities,” Reasons for Judgment are frequently written as narratives linking a chronology of precedents to the case at hand through descriptions of salient similarities of fact and argument. Contemporary Canadian judges ruling on Aboriginal title and rights cases usually begin their “precedents narratives” in eighteenth-century post-colonial U.S.A.

In 1776 the American colonies declared independence from Britain. In the ensuing years, three distinguishable factions emerged to dispute issues of land rights and lawful methods of acquisition of Indian lands. A faction of the American population that remained pro-British continued, after Independence, to argue for a literal interpretation of the Royal Proclamation of 1763, and asserted that the British Crown alone retained the prerogative to negotiate with and acquire land cessions from Indians. Another faction, consisting of legislators and political leaders of Virginia and the other colonies, argued that they held controlling rights to Indian lands on the basis of their Crown charters, having “inherited” the sovereign’s prerogatives previously held by the British Crown and set out in the Royal Proclamation of 1763. Finally, a large group of frontier speculators claimed that, under natural law and natural right, the Indians themselves, as “sovereign princes of the soil,” could sell their land to whomever they wished. Philosopher John Locke became involved in the management and exploitation of the British colonies on the eastern seaboard of America, and was an influential theorist in post-Revolutionary United States. Processes and events there codified Locke’s theories into laws that formed the basis of precedents still employed today. This was the context in which three decisive legal judgments were rendered by Chief Justice Marshall of the United States Supreme Court.³

The first case, Fletcher v. Peck,⁴ was heard in 1810. The State of Georgia had granted land to the New England Mississippi Land Company. The Company then divided and resold the land to a number of individuals, including the Plaintiff, Robert Fletcher. The Defendant, Peck, attempted to interfere with Fletcher’s exercise of ownership, claiming to have acquired the same land directly from its original, Indigenous, owners. Chief Justice Marshall ruled, on the basis of the Royal Proclamation of 1763, that the State of Georgia’s sale to Fletcher was illegal because the lands in question had never been surrendered by the Indians to either the British Crown, the government of the United States of America, or the State of Georgia. Marshall held that “Indian title” could only legitimately be extinguished by a European-derived sovereign, so neither Fletcher nor Peck had acquired lawful title. Another U.S. Supreme Court judge, Justice Johnson, dissented from Marshall’s decision arguing that Indians “retained absolute proprietorship of their soil” which could be extinguished only by conquest or purchase. The significance of Chief Justice Marshall’s ruling in Fletcher v. Peck has manifested itself as the decision has been used as a precedent by contemporary Canadian judges in decisions that uphold the Royal Proclamation of 1763’s dictum that Aboriginal title may only be extinguished by the Crown, and not by lower levels of government, corporations, or private citizens.

The second case, Johnson v. McIntosh,⁵ was heard in 1823. Johnson claimed that he had inherited title to a tract of land from his father who had purchased it from the Piankeshaw and Illinois Indians. McIntosh said he had purchased the same lot from the U.S. federal government, who claimed they had acquired the land from the same Indians at a later date; that is, after Johnson’s father said he had purchased it. Chief Justice Marshall found in favour of McIntosh, ruling that the federal government alone had the exclusive right to acquire Indian title, therefore neither Johnson’s father nor the Piankeshaw and Illinois Indians could legally buy or sell Indian land. Marshall argued that his ruling was based in law, and not necessarily in justice. He wrote that his decision was determined by, “History, and the decisions made and enforced by those Europeans who invaded America.”⁶ Marshall relied on the doctrine of discovery/occupation/settlement, and the assumption of terra nullius to defend his position, arguing that Crown title was grounded in the voyages of discovery made by the Cabots during the late fifteenth century. This second case in “the Marshall trilogy,” Johnson v. McIntosh, is the decision most frequently selected as a precedent for application by contemporary Canadian judges to support judgments against Aboriginal claimants, on the basis that the Crown had an unfettered right to declare sovereignty over territories Britain deemed terra nullius.

The third and final case, Worcester v. Georgia,⁷ was decided in 1832. The State of Georgia had attempted to enact jurisdiction over the Cherokee Nation by annexing its territory, annulling its constitution and laws, and requiring whites to obtain state permission before entering Cherokee territory. A white missionary, Samuel Worcester, after being arrested for refusing to comply with this statute, challenged the state’s jurisdiction. These same lands, and jurisdictional arrangements, had been the subject of a treaty between the federal government and the Cherokee. Worcester argued therefore that the State of Georgia had no legal right to keep him off the Cherokee reservation.

Chief Justice Marshall ruled in favour of Worcester, saying that the doctrine of discovery/occupation/settlement was relevant only to governing relations between European nations, and not relations between states and the federal government. It yields to the Crown, Marshall wrote, only an exclusive right to acquire Aboriginal title as set out in the Royal Proclamation of 1763. It does not proscribe the terms of such acquisition, or what governmental powers may flow from the surrender of Aboriginal title to the Crown. In other words, Marshall ruled that the State of Georgia could not assume it had automatically inherited whatever powers the federal government may have acquired when it exercised its exclusive prerogative to extinguish Aboriginal title. More importantly, in his Reasons for Judgment in Worcester v. Georgia, Chief Justice Marshall argued that the doctrine of discovery/occupation/settlement did not, in itself, necessarily rule out the possibility that some form of negotiations between Aboriginal title holders and Crown representatives may still be required in order for the extinguishment of Aboriginal title to be legitimate. This decision provides a precedent that could be interpreted to mean that Crown extinguishment of Native title and assumption of jurisdiction could require Aboriginal consent in order to take legal effect. Chief Justice Marshall’s decision in Worcester v. Georgia, however, has not been selected by Canadian judges for use as a precedent.

None of the Indigenous peoples whose lands and rights were at issue in the litigation described above were represented in court. As if they didn’t exist.

Honour Among Thieves: North of the Border

By the treaty of 1873 the Indian inhabitants ceded and released the territory in dispute, in order that it might be opened up for settlement, immigration, and such other purpose as to Her Majesty might seem fit, to the Government of the Dominion of Canada, for the Queen and Her successors forever…. The treaty leaves the Indians no right whatever to the timber growing upon the land which they gave up, which is now fully vested in the Crown, all revenues derivable from the sale of such portions of it as are situated within the boundaries of Ontario being the property of that Province…[that] possesses exclusive power to regulate the Indians’ privilege of hunting and fishing….

—Lord Watson, Judicial Committee of the Privy Council of the British House of Lords, 1888.⁸

In 1888, the first significant legal decision involving issues of Aboriginal title and rights in Canada was heard by the Judicial Committee of the Privy Council of the British House of Lords, which was, until 1949, the highest court to which Canadian cases could be appealed. The St. Catherine’s Milling and Lumber case provided a precedent that would be cited in every subsequent Aboriginal title case in Canada up to and including the present.⁹

The case involved a dispute between the federal government of Canada, the Province of Ontario, and a private corporation: St. Catherine’s Milling and Lumber Co. The federal government had granted the company a permit to cut lumber on land they claimed had been surrendered to them by the Ojibway Nation under Treaty 3, signed in 1873. The Province of Ontario, however, charged St. Catherine’s Milling and Lumber Co. with taking lumber without a valid permit. The federal government argued that the Ojibway had held full title to their lands until they surrendered their Aboriginal title to the Crown under the terms and conditions of Treaty 3, that included some monetary payments. To support their position, the federal government of Canada arguedthat Treaty 3 reflected the Royal Proclamation of 1763’s recognition of full Aboriginal ownership and jurisdiction; which, having been surrendered to the Crown, now gave the federal government the right to issue permits to private companies like St. Catherine’s Milling and Lumber. The Province of Ontario countered with the argument that, prior to the signing of Treaty 3, the underlying title to all the land at issue was not held by Aboriginal title, but was already owned by the hovering sovereign who acquired it by virtue of the doctrine of discovery/occupation/settlement set out in the Memorandum of the Privy Council in 1722. Treaty 3, according to the provincial argument, simply consolidated the extinguishment of whatever vague interests in the land the Ojibway might have had prior to contact with Britain, that might have remained a “burden on the Crown’s title” after the Royal Proclamation of 1763 was issued, rendering the lands in question unencumbered Crown land. The British North America Act that consolidated Canadian Confederation in 1867, the Province of Ontario’s argument continued, had transferred Crown land to provincial jurisdiction.

The Supreme Court of Canada agreed with the Province of Ontario, stating that “the tenure of the Indians was a personal and usufructuary¹⁰ right dependent upon the goodwill of the sovereign.” In other words, even if some form of Aboriginal title had pre-existed Britain’s “discovery” of North America or survived the Royal Proclamation of 1763, it was a type of property ownership that was inferior to title in fee simple,¹¹ recognized as paramount by British law. Regardless, Aboriginal rights of any sort, the Supreme Court of Canada ruled, were only those created—not recognized—by the Crown. The federal government appealed the court’s decision to the Judicial Committee of the Privy Council; which, in turn, upheld the Supreme Court of Canada’s ruling. Lord Watson cited the precedent set by Chief Justice Marshall’s 1823 decision in Johnson v. McIntosh upholding the doctrine of discovery/occupation/ settlement based in the concept of terra nullius, as authority for the Lords’ decision.

Much of the legal argument in the case of St. Catherine’s Milling and Lumber Co. v. R. revolved around competing interpretations of what form of Aboriginal title or interest the Royal Proclamation of 1763 recognized or created. Lord Watson concluded that while “there was a great deal of learned discussion at the Bar with respect to the precise quality of the Indian right…their Lordships do not consider it necessary to express any opinion upon the point.”¹² In effect, however, the Privy Council’s decision affirmed that Aboriginal title was a mere “burden” on the hovering sovereign’s underlying title to all the land.

Lord Watson’s ruling that the only Aboriginal rights that could be recognized in law were those granted, or taken away, by the Crown, marked the rise to prominence of the theory of “legal positivism” in British and Canadian jurisprudence. Legal positivism is a term used to describe the “tendency to treat jurisprudence as an exact science, a rational process that consists of identifiable data and rules,”¹³ modelled on the natural or physical sciences. Positivism in social theory is based on the assumption that human social life can be studied using the same methods as those employed by the natural and physical sciences. Its adherents claim that “objective” knowledge about social reality that is free of any and all bias can be obtained by trained researchers. According to positivist theory, social scientists should first use the five senses recognized by western culture—sight, sound, taste, touch and smell—to capture data on human behaviour. The next step is to organize the data according to prescribed categories. Finally, research findings should be explained by reference to theoretical frameworks developed by previous generations of social scientists. The sense of sight and the practice of systematic observation is the most privileged source of knowledge in positivist social research: “seeing is believing.” Studies in behavioural psychology that place subjects in experimental environments and monitor how they respond to particular stimuli—say, for example, fear—represent the type of positivist social research that has been popularized, and that most people are familiar with. Conclusions are based on how a majority of research subjects respond to the particular stimuli. So, for example, positivist researchers conclude that “humans respond to fear by either fight or flight.” Of course, this does not tell us anything about what frightens who, where, when, or why. Nor does it tell us who can fight and who cannot, or where anyone flees to. We will never know how people who were not research subjects responded, or whether there are third or fourth alternatives that have escaped the research design.

Legal positivism dispenses with the requirement that researchers must study phenomena that exist independently of the observer, and substitutes law itself for “objective” reality, and judicial decision-making for scientific methodology. Simply put, the law creates reality that is real because it has been created by the law. Hence, regardless of what might actually exist, “on the ground,” under the doctrine of legal positivism, the Crown creates and extinguishes Aboriginal title and rights “at its pleasure.”¹⁴ Critics of legal positivism argue that jurisprudence is better understood as resulting from the accumulation of judges’ interpretations of evidence and arguments over time in specific social contexts, and that the arts, literature and humanities provide more useful models for understanding law than the hard sciences.¹⁵

The Ojibway, whose lands and histories were the subject of the dispute in the St. Catherine’s Milling and Lumber v. R. case were neither consulted nor represented in court. As if they didn’t exist.

Honour Among Thieves: in Africa

The estimation of the rights of aboriginal tribes is always inherently difficult. Some tribes are so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or legal ideas of civilized society. Such a gulf cannot be bridged. It would be idle to impute such people some shadow of the rights known to our law and then to transmute it into the substance of transferable rights of property as we know them….

On the other hand, there are indigenous peoples whose legal conceptions, though differently developed, are hardly less precise than our own. When once they have been studied and understood they are no less enforceable than rights arising under English law. Between the two there is a wide tract of much ethnological interest, but the position of the natives of Southern Rhodesia within it is very uncertain; clearly they approximate rather to the lower than to the higher limit. ¹⁶

—Lord Sumner, Judicial Committee of the Privy Council of the British House of Lords, 1919.

When deciding Aboriginal title and rights cases, Canadian judges have available to them a wide range of historic precedents, diverse interpretations of these precedents, and variously reasoned arguments to select from in constructing their own rulings. They may draw on arguments waged, and decisions made, throughout the history and geography of the British Empire-cum-Commonwealth. The ruling quoted above in an African case—Re: Southern Rhodesia—along with Chief Justice Marshall’s American cases, and the Canadian St. Catherine’s Milling and Lumber judgment, have come to constitute an unholy trinity of precedents repeatedly summoned by contemporary jurists.

The Re: Southern Rhodesia judgment sets out the principle that, in order to determine the legitimacy of Indigenous peoples’ land rights claims, imperial courts should first assess the claimants’ position on the ladder of evolutionary progress hypothesized by nineteenth-century evolutionary social theory. Lord Sumner’s first option for those found to be “low on the scale,” is a repetition of the Privy Council’s Memorandum of 1722’s doctrine of discovery/occupation/ settlement justified by the assumption of terra nullius, itself a repetition of Lord Coke’s judgement in Calvin’s Case in 1608. In 1722, whether or not British imperial law would classify Indigenous peoples as fully human beings was considered a religious question: were they Christians or infidels? In setting out his test in Re: Southern Rhodesia, Lord Sumner relied on secular social theory, re-articulating and re-legitimating the now archaic seeming assumptions of 1722 in the pseudo-scientific language of Social Darwinist evolutionism that had become entrenched by 1919. Social Darwinism was an attempt to apply Charles Darwin’s theories of evolution in the plant and animal worlds to human history. Simply put, some Indigenous peoples could be classified, according to the Privy Council, as belonging to a lower order of human being than the British. On the basis of this abstract act of classification they could be deemed, in law, not to exist. Their lands and resources, and their rights to govern themselves, could be eliminated: through the force of law.

Lord Sumner’s option for those Indigenous peoples deemed more “highly evolved” reflects the second clause in the Privy Council’s Memorandum of 1722. Under the doctrine of conquest, since Indigenous peoples were recognized as existing human beings, British domination had to be achieved through military conquest and/or the negotiation of treaties. Indigenous legal codes could continue to be in force after the assertion of British sovereignty, until they were extinguished by the stroke of a pen, or by the cannons of the British navy. Following Sir Henry Maine, Lord Sumner elaborated evolutionary theory, applying its categories to legal codes and land tenure systems. He identified criteria by which courts could ascertain which Indigenous land tenure systems should be deemed worthy of being honoured by the British Crown. According to Lord Sumner, individual rather than tribal or communal ownership marked the difference between “civilized” and “savage” property law.

Not all judges think alike. In 1921 Lord Sumner’s 1919 decision in Re: Southern Rhodesia was criticized and modified by Viscount Haldane, who issued a ruling in another African case before the Judicial Committee of the Privy Council. In Amodu Tijani v. Southern Nigeria,¹⁷ Haldane argued that Indigenous land tenure systems should not be judged by British standards, but rather should be recognized and understood on their own terms: “In interpreting the native title to land, not only in Southern Nigeria, but other parts of the British Empire, much caution is essential,” Haldane wrote. “There is a tendency, operating at times unconsciously, to render that title conceptually in terms which are appropriate only to systems which have grown up under English law. But this tendency has to be held in check closely.”

The similarities and differences between Lord Sumner’s ruling and Viscount Haldane’s can be read as an historic illustration of the interconnections between law, history, anthropology and public opinion that have shaped Indigenous land rights litigation since the early days of British imperial expansion. Legal decisions in these cases, of necessity, rely on and reflect interpretations of history, culture, human nature and morality.

By the early years of the twentieth century, professional anthropologists for the most part had rejected the evolutionary theory of their nineteenth-century founding ancestors like Sir Henry Maine, Lewis Morgan, and Edward Tylor. The leading anthropologists of the 1900s-1930s, including Franz Boas, Bronislaw Malinowski, and H. R. Radcliffe-Brown, all argued for one version or another of positions based in cultural relativism, defined at its most essential level as respect for the fundamental equality of all human cultures, and the right of each culture to be judged on its own terms and not on the basis of another culture’s evaluative criteria. This was not only a moral and a political stance, but reflected conclusions which had emerged as the discipline grew to include more professionally trained observers who spent longer periods of time living with non-European peoples.¹⁸ The empirical data collected, and the lived experience of fieldworkers, challenged the abstractions of the “armchair academics,” who, a generation before, had hypothesized the grand theories of universal human evolution from their ivory towers. Theories of scientific racism and Social Darwinist evolutionism could not sustain “on the ground” scrutiny.¹⁹ Many Indigenous peoples’ ways of life and histories simply didn’t conform to the evolutionary models. Aboriginal Australians, for example, valued little in the way of technology and material goods, but lived within highly complex social structures governed by intricate kinship relations, led rich spiritual lives guided by complex and sophisticated cosmologies, and produced abstract art. Evolutionary theory had hypothesized incorrectly that they should be completely consumed by satisfying survival needs and be incapable of abstract thought. Northwest Coast peoples in North America were neither agricultural nor industrial, yet they lived in a hierarchical social structure, and accumulated and stored surplus wealth which, evolutionary theory claimed, people classified as hunters and fishers should not be doing. Anthropologist Marshall Sahlins has challenged the notion that non-industrial peoples’ lives were taken up with the daily struggle of wresting subsistence from nature. He argues that industrial capitalism requires the average person to expend more hours of labour per day to meet basic subsistence needs than is demanded of participants in hunting, gathering and fishing economies.²⁰

In his ruling in Amodu Tijani v. Southern Nigeria Viscount Haldane adopted a position of cultural relativism, launching an explicit critique of Lord Sumner’s ethnocentric evolutionism. Haldane argued that Aboriginal title, “may not be that of the individual, as in this country it nearly always is in some form, but may be that of a community…. Such title…must be presumed to have continued to exist unless the contrary is established by the context or the circumstances,” he concluded. While Haldane and Sumner differed on some points, neither questioned the fundamental premises that the British Crown had legitimate claims to sovereignty over the Americas; that the hovering sovereign held underlying title to all the land; and that colonial courts should determine what form of Aboriginal title could be recognized—or created—and by what criteria. The Royal Proclamation of 1763 defined Aboriginal title as communal and not individual. Lord Watson in St. Catherine’s Milling and Lumber in 1888 had declared that Aboriginal title was created by the Crown in whatever image the Crown chose. Lord Sumner had, in 1919, defined legally recognizable Aboriginal title as individual and not communal. Viscount Haldane in 1921 allowed that Aboriginal title could be communal and not individual. Both Sumner’s and Haldane’s rulings endorsed the dictum that legal recognition or non-recognition of Aboriginal title should be determined by the nature of Aboriginal societies and land tenure systems, as these were understood by the court. The microscope was resolutely trained on Aboriginal claimants who would be required to represent their cultures and laws in one or another framework determined by legal adaptations of European social theory. Questions about the moral, political or legal legitimacy of British colonialism were deemed by law to have been resolved and to not require further discussion. These issues were banished: silenced in legal conversations, and evicted from colonial courthouses. Their absence, however, continued to hover, over the sovereign.

In the legal disputes that followed Sumner’s and Haldane’s rulings, twentieth-century Canadian judges would select from any one of these precedents, or others, or some combination thereof, as their rationale of choice in rendering decisions in Aboriginal title and rights litigation. Various courts and judges would employ diverse and often contradictory understandings of a mélange of anthropological and historical theories for analyzing Indigenous societies, It would not be until the closing decades of this century that the simple fact that “when the British arrived, these people were already there, using lands in accordance with their own needs and their own ways of life, as people everywhere do,”²¹ would figure prominently in debates about the grounds for legal recognition of Aboriginal or Crown sovereignty in Canada.

1. Bell and Asch 1997:39-40. See also Postema 1991.

2. Torres and Milun 1990.

3. See Bell and Asch 1997; Doyle-Bedwell 1993; Macklem 1991; Slattery 1979; Williams R. A. 1990.

4. Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810) at 146.

5. Johnson v. M’Intosh 21 U.S. (8 Wheat) 543 (1823) at 573.

6. Macklem 1991: 400.

7. Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) at 543.

8. quoted in Kulchyski 1994: 30.

9. St. Catherine’s Milling and Lumber Co. v. R. (1885) 10 or 196 (Ont.Ch.); (1886) 13 OAR 148 (Ont.CAO); (1887) SCR 577(SCC); (1888) 14 AC 46 (PC).

10. A “usufructuary right” means the right to use property owned by another, as long as that use is permitted by the rightful owner, and does not interfere with the owner’s rights or desires.

11. “Title in fee simple” refers to the most privileged form of individual ownership of private property protected by Canadian law. Most Canadian homeowners hold “title in fee simple” to their property, subject of course to the good graces of their banks and mortgage companies.

12. quoted in Kulchyski 1994: 30.

13. Cotterrell 1984:10 quoted in Burtch 1992: 3.

14. For a more thorough discussion of the St. Catherine’s Milling and Lumber Company case, see Slattery 1987; Macklem 1991.

15. White 1985, 1990.

16. Re Southern Rhodesia [1919] A.C. 211 at 233-4.

17. Amodu Tijani v. Southern Nigeria [1921] 2 A.C. 399(p.c.) at 403.

18. See Stocking 1987, 1991, 1992, 1995.

19. See Vincent 1990.

20. Sahlins 1972. See also Lee and DeVore 1966.

21. McNeil 1989.