In 1882, the Turtle Mountain Chippewa Reservation was created which was 500,000 acres, or twenty-two townships. Suddenly, in 1884, the Turtle Mountain Chippewa Reservation was cut down to approximately 476,000 acres, or twenty townships without warning. The total land holdings of the Turtle Mountain Chippewa people in 1884 were ten million acres or approximately 1/10 of North Dakota. But by 1892, their total land holdings were down to thirty four thousand acres, or two townships. In 1882, a traditional tribal government whose hereditary leader had been head chief since 1863 conducts Turtle Mountain Chippewa affairs. However, in 1892, a native committee appointed by a federal Treaty Commission becomes the recognized government body of the Turtle Mountain ChippewaThe Turtle Mountain Chippewa are still today the most prominent of the Plains Chippewa tribes in America, having today's membership and affiliates numbering nearly eighty thousand people. As we shall see, the Turtle Mountain Chippewa were also affiliated with the ethnically European and Indian mixed Métis people, who constitute the largest indigenous group in Canada, and will suffer because of their conflicts between nationality and Canadian and American federal policy. Due to an influx of new evidence, and using quantitative and qualitatitive methodologies combined with analysis of primary and secondary sources, this (dissertation) will contribute to the public record and change previous interpretations concerning the creation of the Turtle Mountain Chippewa Reservation in the 1880s, and final settlement treaty between the United States and the Turtle Mountain Chippewa Indians of North Dakota in 1892. Through letters, journals, manuscripts, as well as other miscellaneous works such as newspaper articles and literary books, a thesis framework will be constructed to put some never before revealed information in a proper historical context.Whether or not Little Shell III was the undisputed head chief of the Turtle Mountain Chippewa and that his being deposed by a faction within his own tribal government was wrong or illegal by the tribe or the federal government, is not an objective of this paper. Instead, this historical revision of the pivotal events of the 1880s and 90s will show that Little Shell III's tenure as a head chief among the Turtle Mountain Chippewa will depict a leader who operated within a chieftain's parameters to mediate disputes and competently represented his diverse tribal membership to outsiders. The failure or lack of success in achieving the goals for all of the people at the Turtle Mountains cannot be a condemnation of his abilities considering that success for Little Shell by the 1880s depended upon fair and equitable treatment by the American federal government. Much of the history during the time from 1882 - 1892 has been misinterpreted by historians until now, it is imperative to proceed carefully with the new information and lay a solid groundwork for further study. Nevertheless, this work will charge the U.S. government for fraud against a peaceful defenseless people, and destroying their traditional leadership structure as well.

The presence of the Charter of Rights and Freedoms in the Constitution of Canada has transformed the historic discourse about what types of people should be appointed to the Supreme Court and the manner in which they should be selected. During the period between 1949, when the Supreme Court replaced the Judicial Committee of the Privy Council in Britain as Canada's highest appellate body, and the Charter's entrenchment in 1982, the debate centered almost exclusively on questions of federalism. Specifically, the provinces argued that in a federal country, it is inappropriate that the status and composition of the court of last resort be left to the sole discretion of the central government. The Charter, with its enumeration of a variety of social categories, has produced new demands that the Court be more socially representative. Feminist legal scholars and women’s advocacy groups claim that a more representative judiciary in general and Supreme Court in particular would perform both symbolic and instrumental functions, while ethno cultural organizations have to date concentrated almost solely upon the symbolic dimension. By contrast, claims for self-government and separate justice systems illustrate that many aboriginal leaders believe their peoples’ grievances can best be met through disengagement from, rather than further integration into, Canadian political and legal processes. The Charter's presence also has conditioned demands for are formed appointment process. Now that the Court is to serve as the arbiter of citizen-state relations, many suggest, it is improper for the state to have sole control over who is appointed to that body, and therefore a more participatory and pluralistic appointment process is advocated. Clearly, these two broadly-defined reform agendas can conflict with one another. While the provinces demand more diffuse government involvement in the appointment of judges, those concentrating on the Court's Charter responsibilities believe that the state already unduly dominates the process. However, the current debate has further, largely unexplored consequences for potential reform. The failure of most participants in the debate, be they governments, scholars or advocacy groups, to articulate coherent approaches to questions of jurisprudential theory, combined with the difficulties inherent in applying the concept of representation to a judicial body, renders their critiques less valuable as guides to reform. Worse, their inadequate treatment of these issues often results in such critics undermining the legitimacy of the institution whose reform they seek.

This dissertation describes and analyzes the work of the Supreme Court of Canada, emphasizing its internal environment and processes, while situating the institution in its broader governmental and societal context. In addition, it offers an assessment of the behavioural and rational choice models of judicial decision making, which tend to portray judges as primarily motivated by their ideologically-based policy preferences. The dissertation adopts a historical institutionalist approach to demonstrate that judicial decision making is far more complex than is depicted by the dominant approaches within the political science literature. Drawing extensively on 28 research interviews with current and former justices, former law clerks and other staff members, the analysis traces the development of the Court into a full-fledged policy-making institution, particularly under the Charter of Rights and Freedoms. This analysis presents new empirical evidence regarding not only the various stages of the Court’s decision-making process but the justices’ views on a host of considerations ranging from questions of collegiality (how the justices should work together) to their involvement in controversial and complex social policy matters and their relationship with the other branches of government. These insights are important because they increase our understanding of how the Court operates as one of the country’s more important policy-making institutions. The findings have significant implications for debates over judicial activism and the relationship between courts and the other branches of government when dealing with the Charter. The project also concludes that the justices’ role perceptions – the ideas, norms and rules that govern their role as judges and that of the institution – both shape and constrain their decision making behaviour. Understanding judicial behaviour with a focus on role perceptions allows for bridge-building between the competing explanations of judicial decision making and for theory-building in the broader judicial politics literature. / Thesis (Ph.D, Political Studies) -- Queen's University, 2009-11-11 13:06:59.159

This dissertation examines the behaviour of the Supreme Court of Canada in cases involving electoral/referendum laws and the alleged violation of freedom of expression and/or the right to vote. In 2007, it declared that the judiciary should adopt "a natural attitude of deference" towards Parliament's decisions about the democratic process when determining, under section one of the Canadian Charter of Rights and Freedoms, whether the infringement is reasonable and justified. This declaration reflected institutional concerns about judicial competence to review legislative choices in this area of public policy and the democratic legitimacy of it doing so. It was made even though the Court had found laws unconstitutional in a majority of the cases that it had heard to date. Deference is often simply equated with government 'wins' in court. Such an equation ignores the effect that the decision has on judicial reasoning. It sets the standard of review the court uses when applying the Oakes test, the framework within which the section 1 analysis occurs. It also establishes the standard of proof that the Crown must meet to demonstrate that an infringement is justified. The outcome of constitutional disputes can turn on the decision about deference, pointing to a need for structure and coherence in the judiciary's approach. A review of the Court's jurisprudence shows that this need has not been met. In spite of its importance to constitutional adjudication, the analytical process by which the decision is made has garnered little attention from those who study the Charter. This dissertation seeks to fill this gap by examining deference theory and the use of deference in disputes involving the democratic process and by proposing an approach for specific use in these cases. The approach links the decision to the nature of the legislation, the nature of the right and the nature of the parliamentary discourse that preceded the enactment or amendment of the impugned law. Before setting the standards of review and proof used during the Oakes test, courts should determine whether: they have the necessary competence and legitimacy to act; the right warrants stringent constitutional protection; and parliamentarians engaged in serious deliberations that included the Charter and the reasonableness of any infringements. / Thesis (Ph.D, Political Studies) -- Queen's University, 2011-12-23 12:12:53.51

When should a commander be held responsible for the crimes of those under his control? Must a commander have known, or is it enough that he should have known, that his subordinates had committed or were about to commit a crime before we impose criminal responsibility on him for failing to prevent or punish those crimes? In attempting to answer these questions, the very foundations of criminal responsibility are set out and form the normative framework within which our examination of the command responsibility doctrine is undertaken. The historical evolution and modern-day application of the command responsibility doctrine are also set out and draws upon two themes; whether there is any justification for the distinction between the responsibility of military and civilian commanders and which mens rea standard should be adopted for the doctrine of command responsibility.

The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) has taken steps to define and develop its prosecution policies. Review of these policies reveals that the OTP prefers to act on referrals of situations by states and the Security Council, rather than to employ its proprio motu investigatory powers. While the OTP has effectively defined the threshold for the gravity of the crimes that it will prosecute, a number of other discretionary criteria that inform the OTP's exercise of jurisdiction remain undefined. Additionally, the OTP's acceptance of state 'waivers of complementarity' moves in the direction of establishing a quasi-exclusive jurisdiction for the OTP. This thesis will critically evaluate these policies, and propose a recasting of the OTP's prosecution strategy towards the promotion of domestic war crimes prosecutions. It posits that the ICC OTP can act as a catalyst for domestic war crimes prosecutions, by serving in an advisory and support role. The OTP thus has the opportunity to breathe life into the complementarity regime and advance the global struggle against impunity.

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This thesis examines article 69(7) of the Rome Statute, which creates an exclusionary rule for improperly obtained evidence at the International Criminal Court (ICC). Ultimately, the thesis proposes how the ICC should interpret its exclusionary rule. The thesis discusses the theory underlying exclusionary rules, the evidence law and remedial law contexts within which exclusionary rules operate, and numerous comparative examples of exclusionary doctrine from within national criminal justice systems. Finally, some unique aspects of international criminal procedure are described in order to demonstrate how an international exclusionary rule might need to differ from a domestic rule, and previous jurisprudence relating to exclusionary rules at other international criminal tribunals is surveyed. The thesis ends by articulating what a basic test for exclusion at the ICC should look like, and examines how such a rule would operate in respect of all of the different exclusionary doctrines discussed earlier in the thesis.