Virtual Sovereignty? Exploring the Nature of Canadian First Nations

Internet Gaming Ventures

Dr. Yale D. Belanger, Ph.D.University of Lethbridge

The Setting• Kahnawá:ke First Nation (QC)

and the Alexander First Nation (AB) claim they are sovereign nations empowered to enact their own gambling legislation;

• Canada will not tolerate external challenges to domestic regulatory authority over online casinos.

The Legal Environment• The law is vague;• It suggests the federal government

can outlaw the establishment of an online gambling site;

• The provinces are authorized to conduct lottery schemes on or through an electronic device;

• Officials interpret this as assigning them jurisdiction to operate Internet gambling websites for their residents.

The Legal Environment

• This overlap of powers is at odds with the jurisdictional division of:–Parliamentary authority (s. 91); –Provincial Legislatures (s. 92);

• Add First Nations to the mix and uncertainty amplifies.

The Legal Environment• First Nations leaders contend that

reserve gaming operations are shielded from provincial laws:

– Section 91(24) of the British North America Act (1867) recognizes Canada’s sole responsibility for:

• “Indians, and Lands reserved for the Indians.”

Sovereignty• Competing notions of sovereignty

abound; • Canadian Sovereignty has three

dimensions: (1) the holder of sovereignty;(2) the absoluteness of sovereignty; and, (3) the internal and external dimensions of sovereignty.

• Indigenous sovereignty: aligned with recovering control over “Indigenous identity and the reproduction of Indigenous cultures.”

Treaties=Sovereignty

• Treaties are generally accepted as:–“… formal agreements between

two or more fully sovereign and recognized states operating in an international forum, negotiated by officially designated commissioners and ratified by the governments of the signatory powers.”

Treaties• Section 35 (Constitution Act, 1982)

recognizes and affirms treaty rights;• The Supreme Court of Canada

concluded that treaties are not:– contracts or pacts bound by

international law but rather sui generis accords;

• First Nations hold fast to the notion that the treaties created working relationships with Crown officials

First Nations Response• Kahnawá:ke and Alexander First

Nation confirmed internal sovereignty to operate gambling-related reserve businesses;

• The claims were derived from historic FN/British Crown treaties:– Kahnawá:ke’s leaders cited treaties

dating back to the mid-seventeenth century;

– Alexander First Nation is a member of Treaty 6 (1876).

Kahnawá:ke• “We have always asserted that we are a

sovereign people, this is our jurisdiction, this is our territory.” Chief Mike Delisle (2006);

• “We have an aboriginal right to an economy and it doesn’t have to be hunting trapping and gathering. We can’t do that for a living any more where we live. We don’t have any more natural resources.” Grand Chief and MIT Company chairman Joseph Norton (2004).

Kahnawá:ke• “We are keenly disappointed in the

U.K’s decision, which ignored the long-standing alliance between our nations.” Mike Delisle (2008);

• Alliance dates to 1664 (Silver Covenant Chain);

• Latter based on egalitarian principles of Gus Wen Tah;

• Nafan Treaty (1701): guarantee of “continued and unimpeded access to their vital hunting grounds.”

Kahnawá:ke• 1758 Britain/Kahnawá:ke pact;• Oswegatchie Treaty (1760);• In return for Kahnawá:ke’s support

the British Crown promised not to:• “deprive any of you of your Lands or

Property” while further ensuring the right to continued economic development (i.e., hunting territories)

• Royal Proclamation 1763 recognized Indian land ownership; nationhood status; land sale criteria.

Alexander• Alexander First Nation “has the

power and authority to enact the Alexander First Nation Gaming Law pursuant to which it created the Alexander Gaming Commission, setting guidelines for operation of online Gaming Commission.” Chief Raymond Arcand (2007).

Treaty 6 (1876)• Crown negotiator Alexander

Morris stated the Crown would not – “interfere with your hunting and fishing …

through the country as you have heretofore done”;

• “What I have offered does not take away your living, you will have it then [following the treaty] as you have it now, and what I offer now is put on top of it.”

Treaty 6 (1876)• He further stated that the Queen

“wished to help you in the days that are to come, we do not want to take away the means of living that you have now, we do not want to tie you down”;

“we want you to have homes or your own where your children can be taught to raise for themselves food from the mother earth.”

Final Thoughts• The Kahnawá:ke Mohawks and

Alexander First Nations appear to have an existing treaty right to operate online gambling;

• The right: to engage in hosting online casinos to pursue economic development;

• The Kahnawá:ke argument is slightly more compelling than Alexander’s.

Final Thoughts• The federal crown considers First

Nations non-state actors bound by the Criminal Code of Canada;

• Should Canada come to acknowledge First Nations domestic sovereignty, the SCC suggests federal law is prerogative;

• This is binding to First Nation.