We All Belong: Indigenous Laws for Making and Maintaining Relations Against the Sovereignty of the State by Amar Bhatia A thesis submitted in conformity with the requirements for the degree of Doctor of Juridical Science Faculty of Law University of Toronto © Copyright by Amar Bhatia 2018 We All Belong: Indigenous Laws for Making and Maintaining Relations Against the Sovereignty of the State Amar Bhatia Doctor of Juridical Science Faculty of Law University of Toronto 2018 Abstract This dissertation proposes re-asserting Indigenous legal authority over immigration in the face of state sovereignty and ongoing colonialism. Chapter One examines the wider complex of Indigenous laws and legal traditions and their relationship to matters of “peopling” and making and maintaining relations with the land and those living on it. Chapter Two shows how the state came to displace the wealth of Indigenous legal relations described in Chapter One. I mainly focus here on the use of the historical treaties and the Indian Act to consolidate Canadian sovereignty at the direct expense of Indigenous laws and self- determination. Conventional notions of state sovereignty inevitably interrupt the revitalization of Indigenous modes of making and maintaining relations through treaties and adoption. Chapter Three brings the initial discussion about Indigenous laws and treaties together with my examination of Canadian sovereignty and its effect on Indigenous jurisdiction over peopling. I review the case of a Treaty One First Nation’s customary adoption of a precarious status migrant and the related attempt to prevent her removal from Canada on this basis. While this attempt was ii unsuccessful, I argue that an alternative approach to treaties informed by Indigenous laws would have recognized the staying power of Indigenous adoption. Notwithstanding current Canadian immigration law, this staying power would further the goals of Indigenous self-determination, decolonization, and Canadian reconciliation. The Conclusion reviews the preceding arguments and contends that state sovereignty remains a significant, but not insurmountable, barrier to Indigenous self-determination and Canadian reconciliation. Grudging legal developments and heightened societal expectations require genuine, substantive reconciliation efforts. It seems only a matter of time before Indigenous rights to extend membership and status to foreign nationals are recognized again. This dissertation makes the original contribution that the best way of doing so would be through the renewal of treaty relations informed by resurgent Indigenous laws and legal traditions. iii Acknowledgments I have left the most important part of this dissertation too late and to the very end! In terms of partially situating my scholarship, first and foremost, I am a Canadian citizen born in Ottawa to parents who immigrated to Canada from India and the Philippines. I am neither Indigenous nor do I live with precarious immigration status. Although I have been privileged with opportunities to read and learn about Indigenous laws and legal traditions, I am obviously no expert and am only beginning to understand these laws in conjunction with my greater familiarity with the Canadian state’s Aboriginal, immigration & refugee, labour & employment, and property laws. For example, I only learned much later in life that my birthplace, Ottawa, sits on unceded Algonquin territory. I also later learned that the name of the place where I live and work, Toronto, is derived from Tkaronto, which is a Mohawk or Kanienkehaka word (one of the languages of the Six Nations that make up the Haudenosaunee Confederacy). Toronto and the surrounding territories are also the traditional, treaty and current homes of the Wendat people, the Seneca Nation, the Anishinaabe people, and the Metis, with the Six Nations, the Mississaugas of New Credit and the Williams Treaty First Nations continuing to hold and assert their sovereignty, rights, title and treaties (Two Row, Dish with Spoon, Niagara) to this day. This personal history and the formal and political education that I’ve received over the years have all brought me to the questions about making and maintaining relations explored in this dissertation. As seen below, a lot of personal relationships have been made along the way. First, I would like to thank Professor White for chairing my FOE and Professor Nedelsky for serving as the internal external (and raising important questions about legitimacy in decision- making that I will carry into the publication stage). I would also like to thank the members of my supervising committee, Professor Rittich and Professor Maracle, for all of your encouragement over the long years of this dissertation. Professor Rittich: thank you again for supervising my LLM thesis and giving me the confidence to continue on with the SJD (even if I did not work quickly, I know the result here is much clearer from your efforts!). Thank you also for teaching, employing, and mentoring me over the years, including introducing me to a community of critical international law scholars (who you’ve guided in Toronto and beyond) that refuses to stop organizing things. Professor Maracle: iv thank you for teaching me in and out of your classes, for reading my scholarly and creative work, and for mentoring my friends and me to think and act on the issues raised and repeated by colonialism. Even though I know you’ve said in response to the question, “how can we help?” that you “don’t know what we’re good at”, thanks again for your firm, kind leadership and laughter that has helped so many of us to see what, in fact, we are good at. Kwas hoy for also reminding me in the defense that a title is a promise! I would like to thank my SJD supervisor, Professor Macklin, first for agreeing to supervise this dissertation so many years ago (originally with Professor Johnston) and then for sticking with me over all the years! Second, I would not be where I am today (at Osgoode and successfully defended) without your perceptive criticism and guidance over the most difficult parts of this dissertation. Thank you for insisting on clarity even as you championed the most innovative parts of this dissertation. The combination of your scholarly work with deep engagement in refugee litigation and advocacy is truly inspiring! I would also like to thank my external examiner, Professor Borrows, for reading, testing and challenging this dissertation in such a generous way. Your feedback on the need to further address the potential scale, complexity, contradictions, and constraints of Indigenous authorities over immigration and re-peopling is well-taken and I will strive to address it in future versions of this work. As seen below, your work and the work of so many others in the revitalization of Indigenous laws and wider Indigenous resurgence has been foundational in shaping my approach to transnational migration in a settler-colonial context. Chi meegwetch also for all of the inspiring work you’ve done in writing and in person to advance Indigenous law and life in Toronto, Ontario, Canada, and wider Anishnaabe and Indigenous territories. The amazing hospitality you’ve shown in welcoming others to these efforts, and the work of decolonization at Neyashiinigmiing and beyond, exceeds both the English language and Canadian law. In addition to my supervising and FOE committees, I also have the deepest gratitude for my unofficial committee of Dawnis Minawaanigogiizhigok Kennedy, Shiri Pasternak, Kim Stanton, and Sujith Xavier. We’ve seen each other through a lot and I’ve learned so much along the way – I’m not sure how to thank you for what’s here and for all the other drafts and chapters that inform this work but that aren’t directly included here. So, instead, I’m just going to say sorry for all those block quotes and will thank you better in person! v The wider communities and institutions that have supported, inspired and sustained me and this work over the years include: the University of Toronto and the SSHRC and their respective funding; the OJEN; the Catalyst Fellowship at Osgoode Hall; the Toronto Group folks (including my SJD colleagues at Osgoode and U of T, like Michael, Umut, Amaya, Carolina, Claire, Patricia (Pagu), Mazen, Irina, Derek, Zoran, Gail, Howie, Rayner, Rommel, Shanthi, Mai, Charis, Stu, & Igor); the TWAIL network (including fellow Cairo organizers Usha, John, & Sujith); the Indigenous Sovereignty week organizers & speakers (including Shiri, Dawnis, Zainab, Crystal, Barb, Tannis, Corvin, Tyler, Ruth, Russ, and in memory of Randy Kapashesit and Art Manuel); the migrant worker coalition organizers (including Adrian, Anna, Carolina, Chris, Deena, Evelyn, Fay, Gabriel, Hussan, Jackie, Johnna, Kara, Nav, Senthil, Sonia, Tings, & Tzazna); the teachers and care workers at our kids’ daycares and schools over the years; the Graduate Program and other faculty at U of T law (including Julia Hall, Carla Serpe, Barbara Langlois and Professors Dyzenhaus, Brunnée, Prado, Sanderson and Valverde); and my former teachers and mentors - and now current & new colleagues - at Osgoode Hall (including Angela, Harry, Sonia, Obi, & Peer; my first-time property law colleagues (Mary Jane, Philip, Stepan, & Estair); my Aboriginal Intensive Program and Anishinaabe law camp colleagues (including Andrée & Shin; Dayna, Signa, Deb, Kent, Jeff, Lisa, Lisa, Ben, Lindsay & Heidi); my PCLS colleagues (especially Sean and Janet); and my dean, Lorne, and the Associate Deans (James, Poonam, Trevor, Mary), Faculty Association exec. members (Gus, Cynthia, Sara, Janet, Eric), and other colleagues (Obi, Carys, Doug, Hengameh, Francois, Robert, Ruth & Stephanie) who’ve all supported me as a junior faculty member)). As noted above, a lot of personal relationships have been made along the way! Many friends and family have gotten us through the years, including those in Toronto, Montreal, Ontario, New York, Vancouver, India, and the Philippines (especially Nancy & Christine; JEM is fantastic; Tantes Claire & Marie Paule; Melissa, Steve, and the boys; Charn, Neeru, and the kids; the Manila fam; the Syracuse Bhatias; KDB Uncle & family; and Aunt Nora, Uncle Alec and the dozens of cousins).