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Pimicikamak government

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Pimicikamak is an indigenous people in Canada. Pimicikamak is related to, but constitutionally, legally, historically and administratively distinct from, the Cross Lake First Nation which is a statutory creation that provides services on behalf of the Canadian Government. Pimicikamak government is based on self-determination and has a unique form.[1]

The Pimicikamak Flag - Photo: Jackson Osborne

Traditional government

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A modern Pimicikamak leader is quoted as saying: "Our ancestors governed themselves in our territory since time immemorial. Pimicikamak did not have rulers. It had leaders. Leadership was based on consensus and especially upon respect that was earned."[2] Oral history told by Pimicikamak elders says that traditional government under customary law (Pimicikamāk okimākānak) was based on consensus, like other Cree governments.[3] Customary law is well-recognized in the jurisprudence of the U.S.,[4] U.K.[5] and Canada.[6] Pimicikamak leaders were respected persons, possibly of the Midewiwin society.[7] "A leader held his position as long as he had the respect of the people."[8] As well, oral history says that Elders (the Council of Fire) and women played distinct roles in governance.

Original constitution

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Like other indigenous peoples in North America. Pimicikamak was constituted as a self-governing people under spiritual as well as temporal laws. These were passed down orally through stories, ceremonies and traditions[9] that formed part of a culture that enabled Pimicikamak's ancestors to survive as a people in a harsh environment for thousands of years.[10] Many stories say that the elders had a role in speaking of the law and the women had a role in organizing Pimicikamak society. Both came into play at summer gatherings.[11] The Pimicikamak constitution derives from those times. It rests upon custom and is largely uncodified, characteristics it shares with the government of the United Kingdom.[12] It has since evolved[13] into a modern customary form.[14]

Treaty 5

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On September 24, 1875, Tepastenam and two others[15] signed Treaty 5[16] with the British Crown at Norway House on behalf of Pimicikamak. It had the effect of amending and partly codifying[17] Pimicikamak's customary constitution and laws. The official written text of the Treaty[18] implicitly depends upon the continuance of Pimicikamak self-government.[19] It appears that, until the 1990s, no other part of Pimicikamak law was codified.

Modern constitutional changes

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"Pimicikamak’s traditional government is quite new, and yet it is also ancient."[20] Beginning in 1996, parts of the Pimicikamak traditional constitution were updated and codified in written laws in English. They are based upon self-determination,[21] the inherent right of self-government, the Rule of Law and updated traditional principles of democracy and accountability. They deal with making laws in writing,[22] defining who is a Pimicikamak citizen[23] and electing an Executive Council.[24] Pimicikamak government is an example of direct democracy. Modern written Pimicikamak customary law is subject to acceptance by consensus of a general assembly of the Pimicikamak public.[25] The roles of the Secretary to the Councils as keeper of customary laws and as the interface between the oral Cree traditional government and the written English world it faces may have arisen in the 1990s.[26]

Councils

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Pimicikamak's four councils[27] derive from its traditional form of governance by the elders and women. Each council is elected by its own constituency under its own rules and functions in its own roles by consensus.[28] National policy is established by consensus of the Four Councils (itself a single entity composed of the members of all four councils). The councils are subject to Pimicikamak law. Pimicikamak law requires the Executive Council to give effect to national policy.[29] Because the traditional councils can call an Executive Council election at any time,[30] and its members are the Band Council members ex officio,[31] the Band Council tends to regard Pimicikamak national policy as persuasive.

Canadian government relations

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The government of Canada has not acknowledged Pimicikamak's customary government in modern times. Its policy is that self-government is an inherent right of aboriginal peoples in Canada[32] and that this right is recognized and affirmed by the Constitution of Canada.[33] "The federal government supports the concept of self-government being exercised by Aboriginal nations or other larger groupings of Aboriginal people."[34] but does not accept that an aboriginal people may exercise this right without first negotiating it.[35] Negotiation and legislation of self-government can result in domestic, dependent status similar to that of Indian nations in the United States of America, whose governments are defined by Act of Congress.[36] Canada has not generally accepted Pimicikamak's policy of exercising its inherent right. The government of Canada prefers to deal with Cross Lake First Nation, a domestic, dependent, municipal form of government[37] established by Act of Parliament.[38] Under this federal legislation and the terms of various agreements, the Band Council acts as the agent of the Minister of Indian Affairs and Northern Development in delivering programs to Indians on reserve.[39] Since 1999, several Band Councils have taken and held office pursuant to the Pimicikamak Election Law, 1999[40] instead of the federal legislation.[41]

Manitoba government relations

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The government of Manitoba has a respectful relationship with the Pimicikamak government.[42] In 2002, the Manitoba Minister of Northern and Aboriginal Affairs, the late Honorable Oscar Lathlin, set a precedent by formally addressing the Pimicikamak National Assembly.[43] Premier Gary Doer has acknowledged Pimicikamak's government and traditional councils and formally met with its traditional chiefs.

Notes

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  1. ^ Galit A. Sarfaty, "International Norm Diffusion in the Pimicikamak Cree Nation: A Model of Legal Mediation", (2007) 48 Harvard International Law Journal 441, at p. 443, http://www.harvardilj.org/attach.php?id=125, accessed 15 August 2008.
  2. ^ John Miswagon, "A Government of our Own", Frontier Centre for Public Policy, 21 April 2005, http://www.fcpp.org/main/publication_detail.php?PubID=1043 Archived 2007-10-09 at the Wayback Machine, accessed 24 September 2008.
  3. ^ Victor P. Lytwyn, Muskekowuck Athiniwuck: Original People of the Great Swampy Land, University of Manitoba Press, Winnipeg (2002), p. 23.
  4. ^ "[The] laws, customs and usages" of the Chickasaw Nation "governed all property belonging to anyone domesticated and living with them." Jones v. Lancy, 2 Tex. 342 (1844); cited in Felix. S. Cohen's Handbook of Federal Indian Law, University of New Mexico Press, Albuquerque (1958).
  5. ^ In R. v Secretary of State For Foreign and Commonwealth Affairs, [1982] 2 All E.R. 118, Lord Denning said "These customary laws are not written down. They are handed down by tradition from one generation to another. Yet beyond doubt they are well established and have the force of law within the community."
  6. ^ Campbell v. British Columbia, 2000 BCSC 1123, citing Lord Denning, the Court said "such rules, whether they result from custom, tradition, agreement, or some other decision making process, are 'laws' in the Dicey constitutional sense."
  7. ^ For example, see Louis Bird, "Swampy Cree Stories", https://www.uwinnipeg.ca/academic/ic/rupert/bird/story.html, accessed 6 September 2008.
  8. ^ Sharon Venne, "Understanding Treaty 6: An Indigenous Perspective", in Aboriginal and Treaty Rights in Canada, Michael Asch, ed., University of British Columbia Press, Vancouver (1997).
  9. ^ The Supreme Court of Canada considered the use of oral history in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010.
  10. ^ A sub-arctic climate, classified as Dfc: Tom L. McKnight & Darrel Hess (2000). "Climate Zones and Types: The Köppen System", Physical Geography: A Landscape Appreciation, Prentice Hall, p. 232.
  11. ^ Oral history says that summer gatherings usually congregated at Sipiwesk Lake. In winter, survival needs led the people to disperse within its territory.
  12. ^ See, e.g., Sarah Carter, "A Guide to the UK Legal System" (2001), LLRX http://www.llrx.com/features/uk2.htm#UK%20Legal%20System Archived 2012-06-03 at the Wayback Machine, accessed 7 August 2008.
  13. ^ In Canada, it may be significant that indigenous governments can show continuity; see: Delgamuukw v. British Columbia, [1997] 3 S.C.R 1010; this was a case about aboriginal title but "Self-government claims are subject to the same analytical framework as other Aboriginal rights claims." See Mary Hurley, "Aboriginal Title: The Supreme Court of Canada Decision in Delgamuukw v. British Columbia", http://dsp-psd.tpsgc.gc.ca/Collection-R/LoPBdP/BP/bp459-e.htm, accessed 6 September 2008.
  14. ^ Galit A. Sarfaty, "International Norm Diffusion in the Pimicikamak Cree Nation: A Model of Legal Mediation", (2007) 48 Harvard International Law Journal 441, at p. 473, http://www.harvardilj.org/attach.php?id=125, accessed 15 August 2008.
  15. ^ They were George Garriock and Proud McKay; see Canada's record of Treaty 5 text: "Treaty 5 Between Her Majesty The Queen And The Saulteaux And Swampy Cree Tribes Of Indians At Beren's River And Norway House With Adhesions". Archived from the original on 14 April 2001. Retrieved 14 July 2016., accessed 5 September 2008.
  16. ^ Alexander Morris named it "The Winnipeg Treaty"; see: The Treaties of Canada with the Indians, Belfords, Clarke & Co., Toronto (1880), p. 143.
  17. ^ As with other treaty records, there are questions about the accuracy of the official text; it has internal inconsistencies, such as the purported signing September 20 at Berens River of a Treaty with a boundary that included Pimicikamak territory -- Lieutenant-Governor Morris' dispatch shows he did not expect to meet Tepastenam at Norway House on September 24; in a letter dated October 11, 1875, to the Minister of the Interior Morris said, "We found [at Norway House] that there were two distinct bands of Indians, the Christian Indians of Norway House, and the Wood or Pagan Indians of Cross Lake", in Alexander Morris, The Treaties of Canada with the Indians, Belfords, Clarke & Co., Toronto (1880), p. 148; evidently the Treaty boundary was amended accordingly.
  18. ^ Alexander Morris, The Treaties of Canada with the Indians, Belfords, Clarke & Co., Toronto (1880).
  19. ^ E.g., the aboriginal signatories "duly convened in council" undertook "on behalf of all other Indians inhabiting the tract within ceded" to "maintain peace and good order between ... themselves and other tribes of Indians, and between themselves and others of Her Majesty's subjects"; see Treaty 5, www.ainc-inac.gc.ca/pr/trts/trty5_e.html, accessed 5 August 2008.
  20. ^ John Miswagon, "A Government of our Own", Frontier Centre for Public Policy, 21 April 2005, http://www.fcpp.org/main/publication_detail.php?PubID=1043 Archived 2007-10-09 at the Wayback Machine, accessed 24 September 2008.
  21. ^ Self-determination may be seen as challenging territorial integrity of the state, see, e.g., Vita Gudeleviciute, "Does the Principle of Self-determination Prevail over the Principle of Territorial Integrity?", Int. J. Baltic Law, Vytautas Magnus University School of Law, (2005) Volume 2, no. 2.; Pimicikamak self-determination is governed by its treaty relationship with the Crown, see also: Galit A. Safarty, "International Norm Diffusion in the Pimicikamak Cree Nation: A Model of Legal Mediation", (2007) 48 Harv. Int. Law J. 441, at pp.449 - 450: "Most groups are not aspiring for statehood when seeking self-determination, but rather the survival of their cultural communities." http://www.harvardilj.org/attach.php?id=125, accessed 15 August 2008.
  22. ^ The First Written Law, 1996, http://pimicikamak.ca/html%20pages/Laws/Pimicikamak/First%20Law.html, accessed 31 July 2008.
  23. ^ The Pimicikamak Citizenship Law, 1999, http://www.pimicikamak.ca/law/LAWoCITf.DOC Archived 2011-07-06 at the Wayback Machine, accessed 31 July 2008.
  24. ^ The Pimicikamak Election Law, 1999, http://www.pimicikamak.ca/law/LAWoELEf_cor.DOC Archived 2011-07-06 at the Wayback Machine, accessed 31 July 2008.
  25. ^ The First Written Law, 1996, ss. 15 - 17; http://pimicikamak.ca/html%20pages/Laws/Pimicikamak/First%20Law.html, accessed 4 September 2008.
  26. ^ The First Written Law, 1996, ss. 7, 12, 18, 21, 23, 25, 33 - 35, 40-43, 46, 47; http://pimicikamak.ca/html%20pages/Laws/Pimicikamak/First%20Law.html, accessed 4 September 2008; there designated "Secretary to the Council".
  27. ^ The Women's Council, the Council of Elders, the Youth Council and the Executive Council.
  28. ^ The Executive Council exercises the entire executive authority of the nation. The rules for Executive Council elections are codified, with a maximum term of five years, see: The Pimicikamak Election Law, 1999; other elections are governed by customary law.
  29. ^ The Pimicikamak Election Law, 1999, ss. 15 & 23, http://www.pimicikamak.ca/law/LAWoELEf_cor.DOC Archived 2011-07-06 at the Wayback Machine, accessed 7 August 2008.
  30. ^ The Pimicikamak Election Law, 1999, s. 30(c); The Chief may also call an election at any time, otherwise the term of the Executive Council is 5 years.
  31. ^ The Pimicikamak Election Law, 1999, s. 26.
  32. ^ "Aboriginal Self-Government: The Government of Canada's Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government", http://www.ainc-inac.gc.ca/pr/pub/sg/plcy_e.html Archived 2008-10-01 at the Wayback Machine.
  33. ^ Constitution Act, 1982, s. 35(1), http://laws.justice.gc.ca/en/const/annex_e.html Archived 2007-03-20 at the Wayback Machine, accessed 29 July 2008.
  34. ^ Government of Canada, "Gathering Strength: Canada's Aboriginal Action Plan" (1997),http://www.ahf.ca/pages/download/28_13342, accessed 18 August 2008; this support is not mentioned in a progress report issued 3 years later, "2000 PROGRESS REPORT ON GATHERING STRENGTH - CANADA'S ABORIGINAL ACTION PLAN", http://dsp-psd.pwgsc.gc.ca/Collection/R32-192-2000E.pdf, accessed 18 August 2008.
  35. ^ "The Government of Canada's Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government" (1995), http://www.ainc-inac.gc.ca/pr/pub/sg/plcy_e.html#PartI Archived 2008-10-01 at the Wayback Machine, accessed 18 August 2008.
  36. ^ Cherokee Nation v. State of Georgia, (1831) 5 Peters, 1.U.S. Chief Justice Marshall said, "They may more correctly, perhaps, be denominated domestic dependent nations."
  37. ^ Known officially as a Band.
  38. ^ Indian Act, R.S.C., 1985, c. I-5, [1], accessed 22 August 2008.
  39. ^ Under Canadian law, the Band and Band Council do not have aboriginal or Treaty rights; see Tsilhqot'in Nation v. British Columbia, 2007 BCSC 1700, paras. 469 & 470; http://www.courts.gov.bc.ca/Jdb-txt/SC/07/17/2007BCSC1700.pdf, accessed 21 November 2008.
  40. ^ Pimicikamak Election Law, 1999, http://www.pimicikamak.ca/law/LAWoELEf_cor.DOC Archived 2011-07-06 at the Wayback Machine, accessed 7 August 2008; s. 26 provides that the Chief and Council of the Nation shall be, ex officio, the Chief and Council of the Band.
  41. ^ The government of Canada initially rejected this change but accepted it after extraordinary voter participation in a Pimicikamak election in 1999; see: Galit A. Sarfaty, "International Norm Diffusion in the Pimicikamak Cree Nation: A Model of Legal Mediation", (2007) 48 Harvard Int. Law J. 441, at p. 479, http://www.harvardilj.org/attach.php?id=125, accessed 18 August 2008; Sarfaty attributes Canada's decision to accept the Pimicikamak law to "intense pressure" by indigenous and international groups.
  42. ^ Letter Premier Doer to Pimicikamak Okimawin, August, 1999.
  43. ^ At Cross Lake on 16 December 2002; two other Manitoba cabinet members and a former federal Minister of Indian Affairs, the Honorable Warren Allmand, attended.
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