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Dalhousie Law Journal

Authors

L. C. Green

Abstract

Trusteeship and Canada's Indians It has been suggested recently by some of those concerned with putting forward claims on behalf of Canada's Indians that Canada stands in the position of a trustee, and the contention has been made that this relationship is not merely one of municipal concern, but that the international trusteeship system extends to them. In so far as the North American Indians are concerned, the idea of trusteeship may be traced back to the comment of Chief Justice Marshall in Cherokee Nation v. Georgia:1 [The Indians] are in a state of pupilage; their relation to the United States resembles that of a ward to his guardian. They look to the government for protection; rely upon its kindness and its power... Other United States Supreme Court judgments were to the same effect. Ex parte Crow Dog2 concerned the interpretation of the Treaty of 1868 with the Sioux, and its interconnection with Chapter IV of Title XXVIII of the Revised Statutes entitled 'Government for Indian Country.' Speaking for the Court, Justice Matthews stated They were to be subjected to the laws of the United States not in the sense of citizens but, as they had always been, as wards subject to guardians; ... as a dependent community who were in a state of pupilage... The purpose of this 'wardship' may be seen in the comments of Justice Miller in U.S. v. Kagama3: The Indian tribes are the wards of the nation ... Because of local ill-feeling, the people of the states where they are found are often their deadliest enemies. From their very weaknesses and helplessness .... there arises the duty of protection and with it the power. Clearly, therefore, the Supreme Court looked upon the tribes, not the individuals who normally form the subject of guardian/ward relationships, as being in a special capacity. The judges did not say that the common law concept of this relationship governed the situation, for in the words of Marshall it merely 'resembled' it. Moreover, the rights of a ward as against his guardian were, in the normal way, protected through the medium of the courts. What later commentators tend to overlook when having recourse to the comments of the Chief Justice is that he went on to say: ... If it be true that the Cherokee Nation have rights, this is not the tribunal in which those rights are to be asserted. If it be true that wrongs have been inflicted, and that still greater are to be apprehended, this is not the tribunal which can redress the past or prevent the future.

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Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

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