Our Home and Native Land: An Indigenous Federalist Case Against Separation

Abstract

Alberta’s modern separation movement rests on an unexamined assumption: that the province holds clean, absolute title to its land and resources, and that this title would simply transfer intact to a newly sovereign Alberta. This paper argues that the assumption is legally false. Alberta’s title runs, without interruption, through the Alberta Act, 1905 and the Natural Resources Transfer Agreement, 1930 back to the treaty relationship between Indigenous nations and the Crown, a relationship that is itself conditional on the continued existence of the federal partner Alberta proposes to leave. Reading the treaties and the NRTA through the lens of contract law, using both the standard Western formula (Offer + Acceptance + Consideration = Contract) and an Indigenous reframing developed in the author’s own scholarship (Offer + Acceptance + Reliance on Relations = Indigenous Contract), the paper shows that the historical record supports a finding of consensus ad idem failure: the Crown and the treaty nations did not, in fact, agree to the same bargain. It then applies the doctrine of sui generis Aboriginal law, long used to bind Indigenous nations to Crown obligations without their full consent, back onto the province that has benefited from that doctrine, arguing that Alberta cannot invoke ordinary contract or property rules to exit a relationship the courts have never allowed Indigenous nations to exit on those same terms. Three legal landings follow from an Alberta separation: reversion of the land to the federal Crown, reversion to the treaty nations, or, more ambitiously, a sui generis reconstruction of the federation itself that gives Indigenous governments genuine legislative jurisdiction under section 35, rather than compensation, which the paper argues merely repeats the transactional error it is meant to correct. Contemporary events, including the 2025-26 Alberta separation litigation and the Government of Alberta’s 2026 pause of its Protocol Agreement with the Blackfoot Confederacy, are offered as live evidence for the argument. The paper concludes that Alberta’s future, and Canada’s, depends on deepening the federation rather than dissolving it.