First Nations “Custom” Governance Disputes:

Colonial Entanglement and the Paradoxes of Recognition—Part I: The Courts

Abstract

Around half of First Nations in Canada regulated by the Indian Act select their “chief and council” through what is known as “custom” according to section 2 of the act. Whether they entail traditional elements or more contemporary practices, custom selection codes stand apart from the Indian Act’s provisions on elections and can embody the recognition of Indigenous self-government. When disputes about these custom processes arise, however, the Federal Court may be called on to interpret and apply them; and the federal government, despite eschewing any jurisdiction to interfere in custom governance disputes, has a number of levers that it can, and does, pull to shape the elaboration of custom codes or other key factors contributing to the dispute. Our study falls into two parts: (1) an analysis of Federal Court decisions that illustrates some of the contradictions between the objective of respecting the culture and traditions of Aboriginal peoples and the anxiety felt in relation to ensuring that First Nations communities comply with Western notions of responsible government and (2) a review of Canadian policy with respect to custom elections. Two case studies on instances of intervention, with respect to the Lubicon Cree and the Algonquins of Barriere Lake, help support the argument that this policy, and the legislative structure itself, is a form of colonial entanglement that must be understood in the larger context of claims to land and resources, and arrangements over funding and infrastructure.