Treaty federalism, also referred to as treaty constitutionalism, is a concept that explicitly identifies negotiated agreements between aboriginal people and other sovereign actors as constitutional documents. In this interpretation, treaties are considered founding political documents between two sovereign parties that at once establish a delegation of power or areas of shared responsibility as well as a retention of autonomy for each signatory. Treaties therefore establish a constitutional order that gives force to the central concept of federalism: a constitutionally guaranteed system of both shared and self-rule.
Using treaties or negotiated agreements as the primary mechanism for establishing and defining a political relationship between sovereign parties has important historical precedents in both nonaboriginal and aboriginal contexts. In British North America, intra-aboriginal political relationships were thus established among the Mi’kmaq, the Iroquois, and the Blackfoot. The use of treaties to establish political relationships and to define land rights between the British Crown and aboriginal people found strong expression in King George III’s Royal Proclamation, 1763. A period of historical treaty making continued in what are now former British colonies, with these periods concluding in the United States in 1871, Canada in 1923, and New Zealand in 1840. This historical practice was not universal, however, as British colonial powers did not recognize aboriginal rights in Australia and no treaty-making practice was there established. A contemporary round of negotiated agreement making was reestablished in Canada in 1973 and in New Zealand in 1989. Australia’s Native Title Act, first enacted in 1993, establishes a statutory framework for negotiated agreement making, and there is ongoing political discussion regarding the meaning and effect of a treaty between Australian governments and aboriginal peoples.
The concept of treaty federalism pushes the standard interpretation of the founding constitutional order of many countries. It argues that treaties between aboriginal people and the states of the New World are the source of these states’ constitutional legitimacy and territorial sovereignty. Following from this view, states are considered fundamentally illegitimate if treaties are not respected or inadequately implemented. It also follows that states that have not negotiated with the descendent communities of its prior occupants exercise state sovereignty on illegitimate grounds.
The arguments raised by the treaty constitutionalist position point to a very different conception of the appropriate constitutional and legislative relationship with aboriginal people. As historical treaties were largely limited documents and did not include provisions over many aspects of aboriginal life, territory, and governance, it is argued that those areas outside the treaties remain within the exclusive jurisdiction of aboriginal people. As they did not cede or delegate responsibility over many issues to colonial powers, a treaty constitutionalist position holds that the jurisdiction to address these areas remains with aboriginal people according to aboriginal laws. It also necessarily holds that state action in areas not mentioned within the treaties would be ultra vires, or outside its jurisdiction.
In states that are constitutionally federal—ones that are divided into two levels of government, each guaranteed a degree of autonomy—the treaty constitutionalist position argues that the assignment of constitutional responsibility for aboriginal affairs to either the federal or subnational level of government cannot be interpreted as an assignment of constitutional power or sovereignty over aboriginal people. For instance, it would deny that section 91(24) of Canada’s Constitution Act, 1867, granted the Canadian federal government the power to legislate for “Indians, and Lands reserved for Indians” without their consent. Treaty constitutionalists argue instead that the scope of section 91(24) is constitutionally limited to those issues explicitly delegated under the treaties and that in no way would those issues include a complete delegation of aboriginal sovereignty. In this reading, section 91(24) merely identifies the federal government, not the provinces, as having the responsibility of implementing existing treaty obligations and negotiating future agreements with aboriginal people, as befitting a nation-to-nation political relationship.
A treaty constitutionalist position necessarily implies that the judicial review of existing and future treaties between aboriginal people and other governments should be governed by conventions of constitutional interpretation, a higher standard of interpretation than that regarding normal contract law.
Henderson, James Youngblood. 1995. Empowering Treaty Federalism. Saskatchewan Law Review 58: 241–329.
Ladner, Kiera. 2003. Treaty Federalism: An Indigenous Vision of Canadian Federalisms. In New Trends in Canadian Federalism, 2nd ed., eds. François Rocher and Miriam Smith, 167–196. Peterborough, Ontario, Canada: Broadview Press.
Tully, James. 1995. Strange Multiplicity: Constitutionalism in an Age of Diversity. Cambridge, U.K.: Cambridge University Press.