Amy Swiffen on “Indigenous Peoples and the Future of Federalism”

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Indigenous Peoples and the Future of Federalism presents legal analyses that explore forms of federalism and their potential to include multiple and divided sovereignties. Read the full blog post by co-editor Amy Swiffen, here:

Our objective with this book was to bring together scholars to explore the idea of constitutional reconciliation in a radical way, and by radical we mean going to the root of settler colonialism, which lies in the very constitutional framework of federalism. Sakej James Youngblood Henderson’s concept of treaty federalism strikes us as crucial in this regard because it helps to establish a foundation for reconciliation in constitutional law that acknowledges Indigenous jurisdiction within federalism. In this book, we wanted to showcase this concept and demonstrate how it can provide a pathway to solving some of the most challenging constitutional law issues that face reconciliation efforts in Canada. This collection includes new writing from Henderson developing the concept of treaty federalism in relation to Canada’s political structure, as well as essays from an interdisciplinary group of scholars each inspired in different ways by Henderson’s thought. 

Indigenous Peoples and the Future of Federalism
Edited by Amy Swiffen and Joshua Nichols

Henderson’s concept of treaty federalism is a valuable framework for understanding and advancing Canadian reconciliation efforts. Treaty federalism, as articulated by Henderson, emphasises the significance of treaties as foundational agreements that established the terms of coexistence and mutual respect between Indigenous peoples and the Crown. These treaties are not mere historical artifacts; rather, they represent living documents that continue to define the relationship between Indigenous nations and the Canadian state. The essays in this collection are each inspired by treaty federalist assumptions and come at difficult and in some cases long-standing constitutional law issues from this angle. 

Henderson’s concept underscores that treaties should be viewed as nation-to-nation agreements, acknowledging the sovereignty and self-determination of Indigenous peoples and founding constitutional relations out of which Crown sovereignty’s original jurisdiction emanates. This perspective challenges the conventional view of treaties that often relegates them to secondary importance within the broader narrative of Canadian federalism. Instead, treaty federalism advocates for a recognition that these agreements are part of Canada’s constitutional legacy and signify that Indigenous nations form a third order of government, alongside federal and provincial governments, thereby requiring a genuine consent-based partnership and shared governance. 

The importance of treaty federalism to reconciliation efforts lies in its potential to transform the current constitutional relationship between Indigenous peoples and the state by bringing it in line with the intention of the original treaties signed with the Imperial crown to create a relationship among equals. While the essays in the collection address diverse topics within the area of constitutional law, they are sharing the commitment to honouring treaties as living agreements, along with the belief that Canada can reinvigorate these constitutional legacies and move towards a more equitable and just society that respects Indigenous jurisdiction and sovereignty. This approach aligns with the principles outlined in the Truth and Reconciliation Commission’s Calls to Action, particularly those calling for the recognition and implementation of Indigenous rights, including land rights and self-governance. It also aligns with Canada’s commitment to implementing the United Nations Declaration of the Rights of Indigenous Peoples

Moreover, treaty federalism provides a framework for addressing historical injustices and ongoing disparities faced by Indigenous communities in other settler colonial contexts. It calls for the re-evaluation and re-negotiation of treaty terms to reflect contemporary realities and ensure that they fulfill their original intent of mutual benefit and coexistence. This process involves meaningful dialogue and collaboration, fostering a spirit of reconciliation that goes beyond symbolic gestures to effect substantive change by shifting jurisdiction in various areas to Indigenous peoples and communities. In practice, implementing treaty federalism would involve legislative and policy reforms that embed the principles of treaty recognition into the fabric of governance. This could include creating mechanisms for joint decision-making, ensuring Indigenous representation in political institutions, and providing resources for the revitalization of Indigenous languages, cultures, and legal systems.  

The collection provides comprehensive legal analyses and creative solutions to acknowledge Indigenous constitutional jurisdiction within federalism. The book’s contributions examine the potential of a plurinational federalism that respects and incorporates Indigenous sovereignties and legal traditions, thus advancing the goals of reconciliation and justice. Ultimately, what we hope the essays in this collection convey the transformative vision the concept of treaty federalism offers for reconciliation. In acknowledging treaties as foundational and ongoing agreements, we believe treaty federalism provides inspiration to findings pathways towards fairness and justice, by honouring the spirit and intent of these agreements and paving the way for a future built on mutual respect and partnership.

Read an excerpt of Indigenous Peoples and the Future of Federalism edited by Amy Swiffen and Joshua Nichols.


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