Author ORCID Identifier
Karen Drake: 0000-0003-1804-5357
Document Type
Article
Publication Date
2025
Abstract
The question of whether the Charter should apply to Indigenous governance is often presented in terms of a contest between Indigenous self-determination and protections for vulnerable individuals. The two judgments applying the Charter in the Supreme Court of Canada’s decision in Dickson v. Vuntut Gwitchin First Nation exemplify this dichotomy. This approach, however, reflects a false dilemma; it overlooks Indigenous constitutionalism’s ability to resolve the kinds of issues that the Charter aims to resolve, but without sacrificing Indigenous self-determination. To illustrate this point, this article applies one form of Indigenous constitutionalism— Anishinaabe constitutionalism grounded within an Anishinaabe lifeworld—to the fact scenario in Dickson v. Vuntut Gwitchin First Nation, recognizing that this decision is a precedent with application to Indigenous peoples generally. In so doing, the article discusses the different forms of legal authority to which the Charter and Anishinaabe constitutionalism respond respectively, namely, coercive authority and persuasive authority, as well as their respective conditions of legitimacy. Finally, the article addresses the assumption that Indigenous governance today seems to employ mainly coercive authority, by identifying Canadian law as a significant source of coercive legal structures which are imposed on Indigenous governance.
Repository Citation
Drake, Karen, "Indigenous Governance and the Charter: What Can Indigenous Constitutionalism Offer?" (2025). All Papers. 414.
https://digitalcommons.osgoode.yorku.ca/all_papers/414
Comments
"Note: This is a pre-copyedited draft of a paper that is forthcoming in the Supreme Court Law Review (expected publication in February 2026, in the following volume: (2026) 9 S.C.L.R. (3d))."