By: Chief Hugh Akagi
By the 1970s, the Supreme Court of Canada began to repair the impact of hundreds of years of friction between Indigenous people and European settlers. More recently the court ruled that “persons who are not Canadian citizens and who do not reside in Canada can exercise an Aboriginal right” in Canada.
Many people are thinking long and hard about the implications. Imagine – rights protected by the Canadian Constitution being extended to people who have never lived in Canada. But if we think of “a People”—a collective—instead of the individual person in the court case, the issue is about people who have always lived in what is now Canada.
Here’s the background:
Most of the people of the Sinixt Nation were driven out of what is now British Columbia. In 1956 the Department of Indian Affairs declared the Sinixt “extinct.” But Sinixt citizen Richard Desautel, who lives in Washington State, travelled to BC to hunt an elk. He reported his successful hunt to provincial conservation officers, was charged and won cases in lower courts. Then he won at the Supreme Court.
This case has huge implications for my fellow Peskotomuhkati (Passamaquoddy). Our territory straddles what is now the New Brunswick-Maine border which is also the Canada-US boundary.
The people thinking about this case include border guards, fisheries officials, conservation officers, immigration officials, hunters, and people who live on or near traditional Indigenous territory, which is everybody in the Americas. But perhaps the implications aren’t as complex as they initially seem.
This case is important for more than forty Indigenous Nations whose land is divided by the international border, separating families and creating barriers for about a million people.
Most Canadians live within 150 km or so of the United States border. It’s no surprise that Indigenous people crossed this relatively new border for at least 14,000 years – long before Europeans arrived. The international border in our territory was the subject of negotiations, some dispute, and only confirmed in 1842.
Many Canadians and Americans remember crossing the international border after answering a few questions or just waving at the border guard—no identification required. Some Canadians remember being out for a Sunday drive on back roads and ending up in the United States without going through a border crossing. Hunters remember accidentally crossing into the US and being politely turned back by officials.
Times have changed. Borders have hardened.
However, if you have a constitutional right to hunt in a particular geographic spot, surely you have a right to be there. How else could you hunt?
Those rights to hunt and be in a geographic location will still be subject to administrative laws and rules. I have a right to free expression, but I can’t demand to enter the premier’s office at any time to express myself. There will always be limits, even on inherent, historic, and constitutionally guaranteed rights. The question is—who sets the limits?
Let’s look at other practical matters.
The Territories of Indigenous peoples are often bisected by the border between what is now Canada and the United States. In places I can throw a softball across the Skutik (St. Croix) River to Maine – that’s how close I am to my relatives and fellow Peskotomuhkati.
Some in the Nation don’t have the appropriate identification to cross the international border – passports or Indian status cards, for example. To have an Indian status card, you must be registered as an “Indian” under Canada’s Indian Act. But Canada has changed the criteria, and listed as well as delisted thousands of Indians over many decades. The government of Canada has granted Peskotomuhkati inherent and Treaty rights to entities without entitlement, while denying my Nation access to our rights. Imagine the US or United Nations coming into Canada and telling you that you aren’t actually Canadian but your neighbour is.
Here’s another challenge. Ninety per cent of the waters in my territory are in what is now Canada. The waters are critical to our survival and the preservation of our culture. They are a source of food and a big influence on our way of life. Most of our citizens are in what is now the US and can’t access those waters easily.
My Nation, the Peskotomuhkati, intervened in the Desautel Supreme Court case because we knew how important the issues were to all Indigenous peoples in North America. We also intervened because the issue is crucial to Peskotomuhkati survival as a Nation. After more than a century of suppression and marginalization in Canada, the restoration of our language and culture depends on the interaction of our families on both sides of the Skutik River—in what is now Canada and the US.
Peskotomuhkati who live in the part of our homeland that is now in the United States are federally recognized and have been for more than 45 years. Our community in Canada has been promised recognition as a “band” as per the Indian Act for more than 18 years but this hasn’t come to pass. The Indian Act was passed by the Canadian Parliament in 1876. It’s a colonial and racist law, but it also mandates rights to education, health care, housing, and economic development that have been denied my Nation which also has Treaties with Canada that promise these rights. The Act gives the Minister almost complete powers over Indigenous people, more power than government has over any residents with the exception of federal prisoners.
But what’s in the Indian Act aren’t our terms, norms, or governmental systems. They’ve been imposed on us by European settlers. For about 14,000 years we have been travelling throughout Wabinaki territories to hunt and fish, using seasonal and permanent settlements to visit our relatives. We respected the rights of other Indigenous Nations to their territories, but there were no states, provinces, or countries as we now know them. States, provinces, and the international border are quite recent developments for us. In fact, most nation-states in the world are recent developments. Our recent formal and treaty relationship with the Crown began in 1725, well before there was a Canada or US.
So, was it fair, just, lawful, or even logical to divide a Nation and separate families by this new international border?
The Supreme Court says the obvious: No, it wasn’t.
Why should two Nations that didn’t exist when we signed Treaties with England and France, now deny the right of my Nation to exist? These two Nations, Canada and the US, are bound by those Treaties.
The Peskotomuhkati are one united Nation and now the Supreme Court agrees. We’re negotiating with New Brunswick and Canada and expect those governments to respect our rights and our abilities to manage the implications of this new Supreme Court ruling.
Negotiations can create enemies, partners, or friends. Laws, even Supreme Court rulings, do not guarantee justice.
I’m a hopeful person. In many ways, I have to be hopeful and patient while waiting for the recognition and respect we deserve, based on inherent rights. But I worry that 20 years from now my Nation’s young people will still be asking what went wrong and how yet another Supreme Court ruling was ignored or watered down.
A Supreme Court ruling can be an important step forward. But it’s a long journey and the elected governments, senior civil servants, and what’s called the administrative state can help, delay, or scupper. By administrative state I mean the mid-level and local officials who interpret and implement laws.
I always cite the Marshall decision. In 1999, Mi’kmaw fisher Donald Marshall Jr. won his case at the Supreme Court, which ruled that Indigenous people have a right to a moderate livelihood commercial fishery. Canada has taken it upon itself to define this inherent right. Implementation of the Supreme Court ruling by Canada is taking a long time. Though Marshall was a ruling on a Treaty negotiated by my Nation, we still fight for a right which is freely given to other Nations.
Still, in the 22 years since the Marshall decision, there’s been no agreement on what the words moderate livelihood commercial fishery mean. The federal government has been avoiding any meaningful conversation about the issue, throwing money at Indigenous communities while avoiding principled negotiations. How Indigenous communities can use the money is a continuing problem. Even the courts have subsequently ruled that Canada’s Department of Fisheries and Oceans is wrong to squeeze Indigenous fishing rights into commercial fishing practices. That means pressure on Indigenous people to buy used boats and fishing licences from non-Native fishers. The boats are often old, with polluting engines, and the nets and other equipment are not environmentally friendly. We are being pressured to engage in types of fishing that we would rather not use.
Impediments to exercising constitutionally protected and inherent rights are improper. Imagine having to obtain a government licence to begin exercising your constitutional right to free expression, assembly, or any other right. Immediately after the Desautel decision, we knew federal officials moved into damage control mode, not discussing how to implement the ruling, but how to limit its impact.
As a Sakom and head of a Nation, I’m naturally asked questions by citizens on both sides of the international border. They want answers to some important questions. It’s likely that Peskotomuhkati residing in Maine now have recognition to exercise their Indigenous rights as protected by the Constitution in Canada. But border officials will still be there to ask their questions, as they do with all travelers.
A legitimate answer should now be that the Peskotomuhkati visitor is coming up to exercise constitutionally protected rights. Peskotomuhkati citizens moving to Canada will be entitled to access to health care – just as I or any other of our citizens now living in Canada are guaranteed the same by US laws if we decide to live in the US.
Canada welcomes about 300,000 immigrants a year. No one should be worried about roughly 3,000 people who have been here for millennia. In fact, the Supreme Court has made it clear that it is up to Indigenous people to decide who its citizens are using our rules and laws. For border crossings, we’re going to need pragmatic negotiations with Canada. The court has provided guidance about issues such as identification and security. It has said that good faith negotiations and not perpetual lawsuits are the way to resolve matters between Canada and Indigenous peoples. In the case of the Peskotomuhkati and many others, the negotiations must be between Canada and the governments of my whole Nation, not partial Nations.
Someone in the administrative state will now be thinking about whether Indigenous people need a passport, Indian status card, or other documentation to cross. They’ll also be thinking about whether Indigenous people now living in the US will have to go through the same immigration process as people who don’t have constitutionally protected rights in Canada.
These questions will keep lawyers busy. But in the end, Indigenous rights must be properly accessed and administered through Peskotomuhkati rules and regulations after fair and equal negotiations with federal and provincial government officials in Canada. These negotiations must be on a Nation-to-Nation basis with the representatives of our greater Nation on both sides of the border.
We’ve been managing the environment with Peskotomuhkati laws, policies, and regulations for 14,000 years, and we will continue to work to ensure that food sources are respected and sustainable. We’ve recently negotiated a successful moose hunting agreement with New Brunswick that applies to Peskotomuhkati on both sides of the international border. We can do the same with other food sources and other products of the environment.
We didn’t just receive rights or obtain new rights from the court. The government didn’t give us these rights. These rights are inherent, historical, and part of our long treaty relationship with European Nations and governments.
No one’s rights are a gift from government. All people have inherent, natural rights. George F. Will makes this point in his book The Conservative Sensibility. Government’s obligation is to protect rights, not give some out as gifts and take others away. All the Supreme Court has just done is to recognize natural, Indigenous, and constitutionally protected rights – rightly so, and a decision long overdue.
A chapter written by Chief Hugh Akagi (Peskotomuhkati Nation) for the book, Emergency! Quarantine, Evacuation, and Back Again