IndigPoli Editorial - January 13, 2025
When Commentary Ignores the Law: Indigenous Rights, Oral History, and Canada’s Constitution
Land Acknowledgement
First, let’s start this the right way.
This piece was written in Mohkinstsis — now known as Calgary — on Treaty 7 territory. This land is the traditional home of the Blackfoot Confederacy (Niitsítapi), including the Siksika, Kainai, and Piikani Nations; the Tsuut’ina (Tsúutʼínà); and the Îyârhe Nakoda Nations (Bearspaw, Chiniki, and Wesley).
These lands are not abstract to the discussion that follows. They are governed by Indigenous law, memory, and relationship — long before Canada asserted jurisdiction here.
Author Positioning
I write this as an Indigenous person with roots in two Nations and two treaty territories — my mother from the Tsuut’ina Nation in Treaty 7, and my father from Peepeekisis Cree Nation in Treaty 4. My work sits at the intersection of Indigenous rights, law, politics, and public discourse. I approach these issues not as abstractions, but as lived realities shaped by history, governance, and responsibility to community.
My family comes from the Turtle Clan of the Midewiwin Medicine Lodge, with roots in Anishinaabe (Ojibwe) and Cree peoples, including the Plains Cree (nêhiyawêwin). My name in traditional Plains Cree syllabics is ᐊᐱᐤ ᐊᓯᒋ ᑭᐁᐧᑎᐣ. I generally reserve the use of my traditional name for Indigenous spaces and conversations. Here, I leave it in syllabics, as it was given.
Why Accuracy Matters
When I work on blog posts or editorials, I start with a rough draft — then I step back. I ask whether it reflects the facts, the law, and what I actually believe. Too often, commentary on Indigenous rights skips that second step entirely.
Writers like David Frum continue to frame Indigenous rights as a failed policy experiment, rather than what they actually are: constitutional, legal, and pre-existing. This framing is not new, nor is it neutral. It draws from a long tradition of colonial thinking that has consistently minimized Indigenous law, dismissed oral history, and treated Indigenous governance as an inconvenience rather than a reality.
This blog is not written to chase outrage. It is written to correct the record.
Indigenous Governance, Oral History, and Nationhood Before Contact
My parents and traditional leaders taught me early the importance of oral history — not as folklore, but as law, memory, and instruction passed down through generations. What our grandparents and ancestors carried forward was knowledge of governance, diplomacy, and responsibility to community.
Colonial narratives often portrayed Indigenous peoples as primitive, violent, and incapable of self-governance. These portrayals were never accidental. They served to justify colonization, religious conversion, and the seizure of Indigenous lands by presenting Indigenous Nations as peoples who needed to be “saved.” Claims that we were cannibals, constantly at war, or without government were useful distortions — not historical truths.
The historical and archaeological record tells a very different story. Indigenous Nations across this continent maintained sophisticated systems of nationhood, law, and inter-Nation relations long before European contact. Archaeological findings document extensive trade networks spanning thousands of kilometres, with coastal shells from the Atlantic and Pacific found deep in the interior — evidence of long-standing economic and diplomatic relationships. Oral histories describe skilled diplomats, linguists fluent in multiple languages, and widely shared systems of sign language that facilitated communication across vast territories.
Conflict existed, as it has in all human societies, but the idea that Indigenous Nations were locked in constant warfare is greatly exaggerated. In practice, our ancestors negotiated treaties, shared resources, and resolved disputes through established diplomatic protocols. Many later conflicts were intensified by European displacement, as colonial authorities forced Nations into neighbouring territories or imposed reserve boundaries without regard for existing relationships.
One well-documented example stands in direct contrast to the colonial myth. In 1873, the Blackfoot leader Crowfoot adopted the Cree leader Poundmaker (Pîhtokahanapiwiyin) as a deliberate act of diplomacy. This adoption was intended to strengthen peace and kinship between two Nations facing immense pressure from colonial disruption and the collapse of the buffalo economy. Such acts reflect sophisticated political reasoning — not primitive instinct.
Indigenous peoples were never simple societies. We were — and remain — complex Nations, with laws, governance systems, and diplomatic traditions that ensured every member had a role and responsibility. The myth of the “simple savage” collapses under even the most basic examination of Indigenous knowledge, archaeology, and history itself.
📦 FACTOID — Indigenous Trade Networks Before European Contact
Long before European arrival, Indigenous Nations operated vast, continent-wide economies. Trade routes connected the Atlantic, Pacific, and Gulf coasts to the interior Great Plains, moving goods, knowledge, and diplomacy across thousands of kilometres.
Shell Trade as Wealth:
Dentalium shells from the Pacific coast traveled across the Rockies to the Plains, where 2–3 shells could purchase a buffalo robe by the 1800s. Pacific shells (Olivella, abalone) appear as far east as present-day Kansas, while Gulf Coast conch and whelk moved north through the Mississippi Valley into Canada.
How Trade Worked:
Established trade hubs, governed by diplomacy and reciprocity, with standardized measures for fair exchange — clear evidence of sophisticated economic and political coordination thousands of years before European contact.
"Archaeology does not replace oral history here — it corroborates what Indigenous Nations have always known and taught."
Infographic: Indigenous Trade Networks
What the Law Actually Says
Indigenous rights are not symbolic. They are constitutional.
Section 35 of the Constitution Act, 1982 recognizes and affirms existing Aboriginal and treaty rights. These rights were not granted by Canada; they pre-exist Canada. The role of the courts has been to interpret how those rights are upheld within a modern constitutional framework — not to invent them.
Canadian jurisprudence has repeatedly confirmed this reality. Courts have recognized Indigenous title, the duty to consult and accommodate, and the legal validity of oral history. Reconciliation, in Canadian law, is not a moral preference. It is a legal obligation.
Section 25, Section 35, and the Charter
This is where many commentators get it wrong.
Section 25 of the Canadian Charter of Rights and Freedoms ensures that Charter rights cannot be interpreted in a way that diminishes Indigenous rights. The Charter is not a tool to override Indigenous law or treaty obligations — it exists alongside them.
Together, Sections 25 and 35 form a constitutional safeguard that recognizes Indigenous peoples as rights-bearing Nations, not interest groups or historical footnotes.
Why “Scrapping” Indigenous Rights Is Almost Impossible
Calls to weaken or eliminate Indigenous rights often ignore constitutional reality.
Fundamental changes to Indigenous rights would require a constitutional amendment — meeting the 7/50 formula (seven provinces representing at least 50% of Canada’s population), along with political consensus that has proven historically unattainable.
This reality was made clear in 1990, when Elijah Harper, an Indigenous MLA, refused consent to the Meech Lake Accord. One elected representative, guided by principle and responsibility, halted a constitutional process that failed to respect Indigenous peoples.
The Courts Have Already Spoken
The Supreme Court of Canada has consistently upheld Indigenous rights and Crown obligations. These decisions are not outliers — they form a clear legal trajectory:
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Calder v. British Columbia (1973) — Recognized Aboriginal title
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Guerin v. The Queen (1984) — Established Crown fiduciary duty
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R. v. Sparrow (1990) — Defined Section 35 rights
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Delgamuukw v. British Columbia (1997) — Confirmed Aboriginal title to land
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R. v. Marshall (1999) — Upheld treaty livelihood rights
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Haida Nation v. British Columbia (2004) — Duty to consult
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Mikisew Cree First Nation v. Canada (2005) — Treaty consultation affirmed
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Tsilhqot’in Nation v. British Columbia (2014) — Declared Aboriginal title to specific lands
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Shot Both Sides v. Canada (2024) — Confirmed Canada breached Treaty 7 obligations
Why This Matters — Especially for Youth
For Indigenous youth, misinformation has real consequences. When public figures dismiss Indigenous rights or distort history, it sends a message that those rights are fragile, negotiable, or undeserved.
They are none of those things.
Indigenous youth deserve to know that their ancestors were law-makers, diplomats, traders, warriors, and citizens — and that Indigenous legal traditions continue to shape the constitutional order of this country today.
Education, not outrage, is how we protect that truth.
