Igor' Irkhin

Constitutional Status of Canadian Indians and their Settlements (in the Context of Territorial Autonomy)

2018. No. 4. P. 354–376 [issue contents]
In this article based on the use of the comparative legal research method (internaland external) the constitutional legal nature and the inherent features of the status ofCanadian Indians and their settlements are studied. On the basis of the historical-legalmethod, the genesis of the institutionalization of legal status of the Indians in the contextof the implementation in Canada of trends and forms of equating them is studied. Thedialectical method is involved in identifying identities and contradictions betweenconstitutional-legal approaches to regulating the status of Indians among themselves,as well as settlements in relation to the provinces and municipalities of Canada, theconcept of territorial autonomy. The relevance of the topic is determined by the feasibilityof studying the Canadian experience for its possible consideration in the legal regulationof the status of the indigenous peoples of Russia. The novelty of study is predeterminedby a certain lack of relevant materials in Russian legal science on constitutional-legalproblems of regulating the statuses of Indian, Indian settlements. In addition, for thefirst time, the constitutional-legal status of Indian settlements was analyzed fromthe perspective of the concept of territorial autonomy. According to the results of thiswork, the author substantiates the principle expediency of consolidating the status ofindigenous peoples in the form of a self-government regime in the national constitution,within the framework and on the basis of which an adaptive regulatory and legal systemcould later be developed more productively. With regard to Canadian statehood, it should be noted the regulation of the constitutional and legal status of Indians is carried outnot only by federal law and agreements between the federal government and the Indiancommunities, but also by provincial legislation and acts of Indian groups, which often causeconflicts. Attention is drawn to the more successful experience of the institutionalizationof the judicial authorities of the American Indian community. The criteria for determiningterritorial autonomy formulated in the scientific literature are analyzed. It is noted thatwith the formal application of these criteria to the constitutional- legal statuses ofIndian settlements in Canada, one could state their belonging to territorial autonomiesof a political type. At the same time, this approach does not quite accurately reflect theinstitutional correlation of Indian settlements and territorial autonomies. The author putsforward his own version of identification of intra-state entities as territorial autonomies,on the basis of which it is stated that Indian settlements can be qualified as territorieswith signs of limited autonomy. Such a conclusion is due to the lack of resources for theimplementation of their powers, guarantees of independence and non-intervention of thefederal authorities. As a possible conceptual tool for improving the constitutional- legalstatus of Indian settlements, the rationality of using the institution of territorial autonomyis emphasized.
Citation: Irkhin I. (2018) Konstitutsionno-pravovoy status kanadskikh indeytsev i ikh poseleniy (v kontekste instituta territorial'noy avtonomii) [Constitutional Status of Canadian Indians and their Settlements (in the Context of Territorial Autonomy)]. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 4, pp. 354-376 (in Russian)
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