Charters, Claire --- "Comparative Constitutional Law and Indigenous Peoples: Canada, New Zealand and the USA" [2011] ELECD 370; in Ginsburg, Tom; Dixon, Rosalind (eds), "Comparative Constitutional Law" (Edward Elgar Publishing, 2011)

Book Title: Comparative Constitutional Law

Editor(s): Ginsburg, Tom; Dixon, Rosalind

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848445390

Section: Chapter 10

Section Title: Comparative Constitutional Law and Indigenous Peoples: Canada, New Zealand and the USA

Author(s): Charters, Claire

Number of pages: 19

Extract:

10. Comparative constitutional law and Indigenous
peoples: Canada, New Zealand and the USA
Claire Charters



1 INTRODUCTION

In formerly colonial states, such as Canada, New Zealand and the USA, almost all state law
relevant to Indigenous peoples is constitutional in nature in that it is inextricably linked to the
state's historical and ongoing constitutive processes. Assumptions of the legitimacy of colo-
nial assertions of sovereignty are inherent in state attempts to exercise authority over
Indigenous peoples. Consequently, the amount of law, and topics, potentially caught within
an analysis of comparative constitutional law and Indigenous peoples is huge.
In this chapter, I provide an overview of comparative constitutional law as it relates to
Indigenous peoples in Canada, New Zealand and the USA, also commenting on relevant
comparative legal scholarship. It is limited, for reasons of size, to the most fundamental of
constitutional issues, with a focus on: the demographic, historical, political, social and
cultural influences on constitutional law relevant to Indigenous peoples; the foundations of
state constitutional law relating to Indigenous peoples; the constitutional and legal signifi-
cance of treaties with Indigenous peoples as parties; land rights; the relationship between
human rights and Indigenous peoples' rights; and projections about the potential significance
of evolving international law on Indigenous peoples on constitutional law in Canada, New
Zealand and the USA. It finishes with some brief comments on the contemporary direction of
constitutional law as it relates to Indigenous peoples in the three jurisdictions.


2 CONTEXT

2.1 Demographic, Historical, Political, Social ...