Pimicikamak government has a unique form. [1]
Like other indigenous peoples in Turtle Island (the name for North America in many languages), Pimicikamak was constituted under spiritual laws. [2] These were passed down orally through stories, ceremonies and traditions [3] that formed part of a culture that enabled Pimicikamak to survive as a people in a harsh environment. [4] 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. [5] Pimicikamak government derives from those times. It rests upon ancient custom, inherent jurisdiction and a constitution that is largely un codified, characteristics it shares with the government of the United Kingdom. [6] Pimicikamak's constitution has evolved into a modern customary form. [7]
Though not widely known, customary law is well-recognized in Western jurisprudence. For example, in 1844, a court in the United States held that the "laws, customs and usages" of the Chickasaw Nation "governed all property belonging to anyone domesticated and living with them." [8] In the U.K., 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." [9] In Canada, citing Lord Denning, a court said "such rules, whether they result from custom, tradition, agreement, or some other decision making process, are 'laws' in the Dicey constitutional sense." [10] Pimicikamak government is based on such customary law. Until the 1990s none of this law was codified.
Oral history told by Pimicikamak elders says that traditional Pimicikamak government (known as Pimicikamak Okimowin in Cree) was consensual, like other Cree governments. [11] Its leaders were respected persons, possibly of the Midewiwin society. [12] "A leader held his position as long as he had the respect of the people." [13] As well, oral history says that Elders (the Council of Fire) and women played distinct roles in governance.
Parts of the Pimicikamak traditional constitution have been codified in written laws in English. They are based upon the Rule of Law. They deal with making laws in writing, [14] defining who is a Pimicikamak citizen [15] and electing an Executive Council. [16]
Pimicikamak government is an example of direct democracy. Its four councils [17] 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 by consensus. [18] National policy is established by consensus of the Four Councils. [19] The councils are subject to Pimicikamak law. Pimicikamak law requires the Executive Council to give effect to national policy. [20] Modern Pimicikamak customary law is subject to acceptance by consensus of a general assembly of the Pimicikamak public. [21]
The government of Canada does not acknowledge Pimicikamak's traditional councils and disputes the validity of its written laws. Its policy is that self-government is an inherent right of aboriginal peoples and that this right is protected by the Constitution of Canada. [22] [23] However its policy is to recognize a people as having the inherent right of self-government if that right is terminated in exchange for a negotiated municipal or dependent form of self-government granted by Act of Parliament. This form is similar to the domestic, dependent status of Indian nations in the United States of America, whose governments are defined by Act of Congress. [24] Today, the government of Canada prefers to deal with Cross Lake First Nation, a domestic, dependent, municipal form of government established by Act of Parliament. [25] 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. The Band Council takes office under the Pimicikamak Election Law, 1999 [26] instead of the federal legislation.
The government of Manitoba has a respectful relationship with the Pimicikamak government. Premier Gary Doer has acknowledged Pimicikamak's government and traditional councils and formally met with its traditional chiefs.
In 2000, the power of aboriginal peoples to make laws was challenged in a legal proceeding. The Court said: "[T]he most salient fact, for the purposes of the question of whether a power to make and rely upon aboriginal law survived Canadian Confederation, is that since 1867 courts in Canada have enforced laws made by aboriginal societies." [27] The official written text of Treaty 5 appears to contemplate the continuance of self-government. [28]
- ^ Technically, it is sui generis.
- ^ So was the state of Israel, see, e.g., Basic Laws of Israel, http://www.spiritus-temporis.com/basic-laws-of-israel, accessed 7 August 2008.
- ^ The Supreme Court of Canada considered the use of oral history in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010.
- ^ 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.
- ^ Oral history says that summer gatherings usually congregated at Sipiwesk Lake. In winter, survival needs led the people to disperse within its territory.
- ^ See, e.g., Sarah Carter, "A Guide to the UK Legal System" (2001), http://www.llrx.com/features/uk2.htm#UK%20Legal%20System, accessed 7 August 2008.
- ^ In Canada, indigenous governments must have continuity with customs that pre-date colonization; see: Delgamuukw v. British Columbia, [1997] 3 S.C.R 1010.
- ^ 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), see further therein, and note the Foreword.
- ^ R. v Secretary of State For Foreign and Commonwealth Affairs, [1982] 2 All E.R. 118.
- ^ Campbell v. British Columbia, 2000 BCSC 1123.
- ^ Victor P. Lytwyn, Muskekowuck Athiniwuck: Original People of the Great Swampy Land, University of Manitoba Press, Winnipeg (2002), p. 23.
- ^ For example, see http://www.uwinnipeg.ca/academic/ic/rupert/bird/story.html.
- ^ 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).
- ^ The First Written Law, 1996, http://pimicikamak.ca/html%20pages/Laws/PCN/First%20Law.html, accessed 31 July 2008.
- ^ The Pimicikamak Citizenship Law, 1999, http://www.pimicikamak.ca/law/LAWoCITf.DOC, accessed 31 July 2008.
- ^ The Pimicikamak Election Law, 1999, http://www.pimicikamak.ca/law/LAWoELEf_cor.DOC, accessed 31 July 2008.
- ^ The Womens' Council, the Council of Elders, the Youth Council and the Executive Council.
- ^ The Executive Council exercises the entire executive authority of the nation. The rules for Executive Council elections are codified, see: The Pimicikamak Election Law, 1999; other elections are governed by customary law.
- ^ The Four Councils is a single entity comprised of the members of all four councils.
- ^ The Pimicikamak Election Law, 1999, ss. 15 & 23, http://www.pimicikamak.ca/law/LAWoELEf_cor.DOC, accessed 7 August 2008.
- ^ The First Written Law, 1996, http://pimicikamak.ca/html%20pages/Laws/PCN/First%20Law.html
- ^ http://www.ainc-inac.gc.ca/pr/pub/sg/plcy_e.html.
- ^ Constitution Act, 1982, s. 35(1), accessed 29 July 2008.
- ^ 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."
- ^ Indian Act, R.S.C., 1985, c. I-5.
- ^ http://www.pimicikamak.ca/law/LAWoELEf_cor.DOC, 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.
- ^ Campbell v. British Columbia, 2000 BCSC 1123.
- ^ 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 each other"; see Treaty 5, www.ainc-inac.gc.ca/pr/trts/trty5_e.html, accessed 5 August 2008.
Pimicikamak government has a unique form. [1]
Like other indigenous peoples in Turtle Island (the name for North America in many languages), Pimicikamak was constituted under spiritual laws. [2] These were passed down orally through stories, ceremonies and traditions [3] that formed part of a culture that enabled Pimicikamak to survive as a people in a harsh environment. [4] 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. [5] Pimicikamak government derives from those times. It rests upon ancient custom, inherent jurisdiction and a constitution that is largely un codified, characteristics it shares with the government of the United Kingdom. [6] Pimicikamak's constitution has evolved into a modern customary form. [7]
Though not widely known, customary law is well-recognized in Western jurisprudence. For example, in 1844, a court in the United States held that the "laws, customs and usages" of the Chickasaw Nation "governed all property belonging to anyone domesticated and living with them." [8] In the U.K., 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." [9] In Canada, citing Lord Denning, a court said "such rules, whether they result from custom, tradition, agreement, or some other decision making process, are 'laws' in the Dicey constitutional sense." [10] Pimicikamak government is based on such customary law. Until the 1990s none of this law was codified.
Oral history told by Pimicikamak elders says that traditional Pimicikamak government (known as Pimicikamak Okimowin in Cree) was consensual, like other Cree governments. [11] Its leaders were respected persons, possibly of the Midewiwin society. [12] "A leader held his position as long as he had the respect of the people." [13] As well, oral history says that Elders (the Council of Fire) and women played distinct roles in governance.
Parts of the Pimicikamak traditional constitution have been codified in written laws in English. They are based upon the Rule of Law. They deal with making laws in writing, [14] defining who is a Pimicikamak citizen [15] and electing an Executive Council. [16]
Pimicikamak government is an example of direct democracy. Its four councils [17] 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 by consensus. [18] National policy is established by consensus of the Four Councils. [19] The councils are subject to Pimicikamak law. Pimicikamak law requires the Executive Council to give effect to national policy. [20] Modern Pimicikamak customary law is subject to acceptance by consensus of a general assembly of the Pimicikamak public. [21]
The government of Canada does not acknowledge Pimicikamak's traditional councils and disputes the validity of its written laws. Its policy is that self-government is an inherent right of aboriginal peoples and that this right is protected by the Constitution of Canada. [22] [23] However its policy is to recognize a people as having the inherent right of self-government if that right is terminated in exchange for a negotiated municipal or dependent form of self-government granted by Act of Parliament. This form is similar to the domestic, dependent status of Indian nations in the United States of America, whose governments are defined by Act of Congress. [24] Today, the government of Canada prefers to deal with Cross Lake First Nation, a domestic, dependent, municipal form of government established by Act of Parliament. [25] 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. The Band Council takes office under the Pimicikamak Election Law, 1999 [26] instead of the federal legislation.
The government of Manitoba has a respectful relationship with the Pimicikamak government. Premier Gary Doer has acknowledged Pimicikamak's government and traditional councils and formally met with its traditional chiefs.
In 2000, the power of aboriginal peoples to make laws was challenged in a legal proceeding. The Court said: "[T]he most salient fact, for the purposes of the question of whether a power to make and rely upon aboriginal law survived Canadian Confederation, is that since 1867 courts in Canada have enforced laws made by aboriginal societies." [27] The official written text of Treaty 5 appears to contemplate the continuance of self-government. [28]
- ^ Technically, it is sui generis.
- ^ So was the state of Israel, see, e.g., Basic Laws of Israel, http://www.spiritus-temporis.com/basic-laws-of-israel, accessed 7 August 2008.
- ^ The Supreme Court of Canada considered the use of oral history in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010.
- ^ 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.
- ^ Oral history says that summer gatherings usually congregated at Sipiwesk Lake. In winter, survival needs led the people to disperse within its territory.
- ^ See, e.g., Sarah Carter, "A Guide to the UK Legal System" (2001), http://www.llrx.com/features/uk2.htm#UK%20Legal%20System, accessed 7 August 2008.
- ^ In Canada, indigenous governments must have continuity with customs that pre-date colonization; see: Delgamuukw v. British Columbia, [1997] 3 S.C.R 1010.
- ^ 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), see further therein, and note the Foreword.
- ^ R. v Secretary of State For Foreign and Commonwealth Affairs, [1982] 2 All E.R. 118.
- ^ Campbell v. British Columbia, 2000 BCSC 1123.
- ^ Victor P. Lytwyn, Muskekowuck Athiniwuck: Original People of the Great Swampy Land, University of Manitoba Press, Winnipeg (2002), p. 23.
- ^ For example, see http://www.uwinnipeg.ca/academic/ic/rupert/bird/story.html.
- ^ 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).
- ^ The First Written Law, 1996, http://pimicikamak.ca/html%20pages/Laws/PCN/First%20Law.html, accessed 31 July 2008.
- ^ The Pimicikamak Citizenship Law, 1999, http://www.pimicikamak.ca/law/LAWoCITf.DOC, accessed 31 July 2008.
- ^ The Pimicikamak Election Law, 1999, http://www.pimicikamak.ca/law/LAWoELEf_cor.DOC, accessed 31 July 2008.
- ^ The Womens' Council, the Council of Elders, the Youth Council and the Executive Council.
- ^ The Executive Council exercises the entire executive authority of the nation. The rules for Executive Council elections are codified, see: The Pimicikamak Election Law, 1999; other elections are governed by customary law.
- ^ The Four Councils is a single entity comprised of the members of all four councils.
- ^ The Pimicikamak Election Law, 1999, ss. 15 & 23, http://www.pimicikamak.ca/law/LAWoELEf_cor.DOC, accessed 7 August 2008.
- ^ The First Written Law, 1996, http://pimicikamak.ca/html%20pages/Laws/PCN/First%20Law.html
- ^ http://www.ainc-inac.gc.ca/pr/pub/sg/plcy_e.html.
- ^ Constitution Act, 1982, s. 35(1), accessed 29 July 2008.
- ^ 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."
- ^ Indian Act, R.S.C., 1985, c. I-5.
- ^ http://www.pimicikamak.ca/law/LAWoELEf_cor.DOC, 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.
- ^ Campbell v. British Columbia, 2000 BCSC 1123.
- ^ 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 each other"; see Treaty 5, www.ainc-inac.gc.ca/pr/trts/trty5_e.html, accessed 5 August 2008.