This text\u27s major thesis, that  Canada cannot presently, historically, legally, or morally claim to be built upon European-derived law alone,  has been mentioned before. Yet in those earlier musings by Borrows and others, such a statement has never been documented so well as it is here. Borrows contemplates that others, besides those sympathetic with Indigenous perspectives, might just admit such a thesis is the case. Moreover, they might also support the creation of social and economic policies that demonstrate such a belief. But observing it in Canada\u27s current legal system-really? Keenly aware of skeptics, Borrows has thought as much about his method as his content. As a result, he trumps other authors by using the proverbial  master\u27s tools  to take down the  master\u27s house,  revealing to us that the Canadian legal system is, first and foremost, imbued with Indigenous law. The problem, he simultaneously details, is that too many people do not interpret it as such

Daum Shanks, Signa A.

English

DigitalCommons@University of Nebraska

University of Nebraska - LincolnDigitalCommons@University of Nebraska - LincolnGreat Plains Research: A Journal of Natural andSocial Sciences Great Plains Studies, Center forSpring 2011Review of Canada's Indigenous Constitution. By JohnBorrows.Signa A. Daum ShanksUniversity of Saskatchewan, sdaumshanks@osgoode.yorku.caFollow this and additional works at: http://digitalcommons.unl.edu/greatplainsresearchPart of the American Studies Commons, Civil Rights and Discrimination Commons,Constitutional Law Commons, and the Indian and Aboriginal Law CommonsThis Article is brought to you for free and open access by the Great Plains Studies, Center for at DigitalCommons@University of Nebraska - Lincoln. Ithas been accepted for inclusion in Great Plains Research: A Journal of Natural and Social Sciences by an authorized administrator ofDigitalCommons@University of Nebraska - Lincoln.Daum Shanks, Signa A., "Review of Canada's Indigenous Constitution. By John Borrows." (2011). Great Plains Research: A Journal ofNatural and Social Sciences. 1149.http://digitalcommons.unl.edu/greatplainsresearch/1149Book Reviews politics ofthe Plains more generally, it should be required reading. Burdett A. Loomis, Department of Political Science, University of Kansas. Compact, Contract, Covenant: Aboriginal Treaty-Making in Canada. By J.R. Miller. Toronto: University of Toronto Press, 2009. xiv + 379 pp. Maps, illustrations, notes, bibliography, index. $85.00 cloth, $35.00 paper. Indian treaties are still being negotiated in Canada, giving the treaty-making process. there an immediacy far removed from the much more narrowly historical and legal significance these documents have in the United States. Indeed, Congress, in 1874, simply enacted a law ending treaty making, a highly political act, intended both to limit the power of the Senate, but also to deny implicitly that Indian nations were, in fact, nations. Canada, for the most part, also stopped making trea-ties after the "numbered treaties" of the prairies in the late 19th century, but because British Columbia, the Yukon, and most ofthe Northwest Territories had no treaties, var-ious First Nations land claims tied the use of much land there for decades, resulting in a renewed treaty process toward the end of the 20th century that still continues. In addition, because the Canadian north is so vast, many of the Indian peoples there were not represented at treaty meetings and claim to live on unsurrendered Aboriginal land. Even the Plains peoples, represented in the num-bered treaties, are demanding a renegotiation of those treaties based on claims of fraud, corruption, or duress. In Canada, the term First Nations explicitly recogniz-es a nation-to-nation relationship between the Crown and the original inhabitants of North America that requires treaty making as the primary political and legal process for the taking of Indian lands and the incorporation of Indian nations into the multinational Canadian state. There are great political difficulties embodied in this process, including the continued impoverishment and marginalization of the First Nations, and the repeated failure of successive Canadian governments to carry out their responsibilities under these treaties, but the treaty process remains the required process. J.R. Miller, perhaps Canada's leading scholar of Ab-original history, takes on an ambitious project, a sweep-ing history of treaty making in Canada with the express goal of making this process understandable to all Cana-dians in order to promote interracial reconciliation. This is an ambitious book, the first history of treaty making in Canada intended for the general reader as well as for academic historians. 117 The complexity of the undertaking is obvious. Not only is each treaty-making situation unique to the time, place, and peoples involved, but over almost 400 years of history the social, political, cultural, and legal mean-ing of the process evolved. Perhaps more importantly, each treaty-making process involved at least two dis-tinct peoples, one of European origin and the other an Indigenous people, with distinct languages, cultures, and understandings of the process. Any scholar who works with Indigenous peoples has heard many differ-ent "treaty stories" that describe a particular people's understanding of one treaty. Miller does the best he can with this, but any history of a Euro-Canadian legal pro-cess, essentially English in law and politics, overrelies on these Euro-Canadian sources. All the standard ques-tions are dealt with in the book: "How did Indigenous peoples understand the complex language of these trea-ties?" "Did the Crown induce the First Nations to sign by outside promises?" "How were the treaties translated?" "Were the Indians present representative of the people whose lands were surrendered?" But in the end, the an-swers are still incomplete. Much of this "gap" between the language of the trea-ties and the reality of Canadian politics and law resulted from 100 years of various government efforts to force assimilation ofindigenous peoples across Canada. In this process, the Canadian government violated all ofthe trea-ties in both language and spirit. The result can be seen on any Indian reserve in Canada. The various First Nations stories of the dishonesty, incompetence, and corruption of the treaty process will not end with this book. Still, as Miller reminds his readers in the concluding chapter, "we are all treaty people" and Euro-Canadian property rights derive from the legality of the treaty process. It is the treaty process that incorporated the First Nations into Canada, and neither the Indigenous peoples nor the Euro-Canadian are going anywhere else. Sidney L. Harring, School of Law, City University of New York. Canada's Indigenous Constitution. By John Borrows. Toronto: University of Toronto Press, 2010. x + 427 pp. Notes, index. $80.00 cloth, $35.00 paper. Thanks to the driving force of Canada's Indigenous Constitution, John Borrows's studies of Indigenous peo-ples' laws will now be more publicly known. While we might have thought his earlier books reached the limits of creativity regarding Indigenous issues in North America (and Canada in particular), his new work demonstrates that such an assumption would have been wrong. © 2011 Center for Great Plains Studies, University of Nebraska-Lincoln 118 This text's major thesis, that "Canada cannot pres-ently, historically, legally, or morally claim to be built upon European-derived law alone," has been mentioned before. Yet in those earlier musings by Borrows and others, such a statement has never been documented so well as it is here. Borrows contemplates that others, besides those sympathetic with Indigenous perspectives, might just admit such a thesis is the case. Moreover, they might also support the creation of social and economic policies that demonstrate such a belief. But observing it in Canada's current legal system-really? Keenly aware of skeptics, Borrows has thought as much about his method as his content. As a result, he trumps other authors by using the proverbial "master's tools" to take down the "master's house," revealing to us that the Canadian legal system is, first and foremost, imbued with Indigenous law. The problem, he simultaneously details, is that too many people do not interpret it as such. His method is the following: introduce the places one can find Indigenous law, then detail these places in an advanced way, followed by observations about Indigenous law in (non-Indigenous) common and civil law systems; then acknowledge the problems that arise due to these sys-tems' interplay; identify the actual multi juridical nature of Canada's interpretation of the "rule of law"; explain how courts and legislatures can encourage the multijuridical nature to protect democratic values; notice how religion also influences what everyone considers the fair treat-ment of individuals and groups; and, finally, predict how Indigenous norms can help address future (and inevitable) problems in our society. Clearly, Borrows wants to allay any fears about Indigenous perspectives being foreign, unhelpful, or illegal. The strongest quality of Canada's Indigenous Constitution is the number of ways Borrows finds to show how Indigenous practices are alive and well and have already proven useful to non-Aboriginals who have worked to make North America more domestically governable and more internationally enviable. Borrows wants us to realize Indigenous ways are not that different-religions, private property, and positivism are apparently part of many Indigenous cultures. At the same time, he argues the Earth is a legal personality in law, he envisages "Recognition Acts," he believes non-Indigenous judges are not incapable of empathizing with Indigenous concerns, and he contends that some of the academic sources touted as the most accurate (and Bor-rows does not use subtlety here) actually hinder proper legal analysis today. Jurisprudence interpreters beware: if you believed only cases that clearly mention "Aboriginal rights" are about Indigenous constitutionalism, Borrows © 2011 Center for Great Plains Studies, University of Nebraska-lincoln Great Plains Research Vol. 21 No.1, 2011 demands you think again. This Anishnaabe legal scholar uses history, courtroom events, and legislative preroga-tives assertively (yet respectfully) to inform you that a more advanced understanding of the past and of law is required. By the time you finish the book, meeting char-acters like "Mandamin" along the way, it is likely you won't disagree. Borrows concludes that the law is "a peaceful, vicious being" and will eventually expose your contradictory values if you choose not to eliminate your inconsistent authoritative methods (like most interpretations of Ca-nadian law). The book tells us we are approaching an intellectual and jurisprudential abyss, and it is about time we make a quick turnaround-the rule of law demands it. Signa A. Daum Shanks, College of Law, University of Saskatchewan. Aboriginal Title and Indigenous Peoples: Canada, Australia, and New Zealand. Edited by Louis A. Kna-fla and Haijo Westra. Vancouver: UBC Press, 2010. vi + 267 pp. Notes, bibliography indices. C$85.00 cloth, C$32.95 paper. This volume contains a number of intelligent, insightful essays that, as a collection, are meant to offer comparative perspectives on Aboriginal title issues in Canada, Aus-tralia, and New Zealand. A relatively limited number of the essays actually engage in direct comparison, although David Yarrow's examination ofthe place ofIndigenous ju-risdiction in Australia and Canada, Kent McNeil's scrutiny ofthe source and content ofIndigenous land rights in Aus-tralia and Canada, and Louis Knafta's superb introduction are welcome exceptions. Most of the other chapters frame a set of comparisons by engaging with issues in a single jurisdiction, although some are also devoted to specific topics farther removed from the book's main thrust. Many of these are nonetheless interesting, and there are chapters by seasoned academics as well as new writers in the field. Significantly, the book crosses disciplinary boundaries: law, history, anthropology, and other disciplinary ap-proaches are represented, with some chapters addressing the intersections of these disciplines. Because of its emphasis on Aboriginal title and as-sociated issues, the collection bears on the Great Plains more implicitly than directly, with the exception of a piece by Japanese academic Kenichi Matsui on negotiations around Aboriginal water rights on the Canadian prairies in the early 20th century. Nonetheless, the book's indirect bearing on the Great Plains remains largely relevant, with perspectives on general issues concerning the foundations 

Review of \u3ci\u3eCanada\u27s Indigenous Constitution\u3c/i\u3e. By John Borrows.

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Review of \u3ci\u3eCanada\u27s Indigenous Constitution\u3c/i\u3e. By John Borrows.

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