Carlyle W. Begay
As a Navajo, and a former state elected official, I am concerned not just for my state and my country, but for my tribe and all other tribes when it comes to how they interact with, and are treated by, their respective neighbor states and governments.
In Arizona, the tribes have made great progress in achieving self-sufficiency and self-determination, and the tribes frequently exercise their sovereignty. Our Canadian neighbors include a large indigenous population, including the Six Nations of the Great River. This nation is governed by the laws and customs of the Haudenosaunee Confederacy, and have been allies of the Crown and Canadian government dating back to the American Revolution. Like our tribes in the United States, this nation deserves to have its laws, rights, and customs respected by the Canadian government. And this is why.
The Confederacy is made up of the Mohawks, Oneidas, Onondagas, Cayugas, and Senecas, and the Confederacy was intended as a way to unite the nations, creating a peaceful means of decision-making. Through the Confederacy, each of the nations of the Haudenosaunee are united by a common goal to live in harmony and achieve maximum self-determination. Each nation maintains its own council with Chiefs chosen by the Clan Mother and deals with its own internal affairs. However, the Grand Council exists to deal with issues affecting the nations within the Confederacy.
Currently there is a court case in Canada involving Six Nations members Kenneth Hill and Brittany Beaver. They have a dispute over support and custody of their nine-year-old son. The Confederacy has its own customs and rules to resolve such a dispute. As tribal members, the Confederacy should be the proper forum for this. But The Superior Court of Ontario has rejected the rights of a prominent Six Nations member to be governed by Haudenosaunee law with regard to intra-familial disputes. This is a step backward for self-determination as well as a disregard of sovereignty. Resolving family problems is a core tribal function.
If a tribe can’t decide family issues for tribal members, then what is sovereignty and self-determination but an empty promise. The Government of Canada recognizes the inherent right of self-government as an existing aboriginal right under Section 35 of the Canadian Constitution Act. If the decision of the Superior Court of Ontario is allowed to stand, it will represent a step back in the progress that Canada has made in the treatment of its Indigenous population.
Less than a year ago, Prime Minister Trudeau offered an emotional apology to the victims of the compulsory boarding school program in Newfoundland and Labrador, which subjected indigenous children to a cultural indoctrination that included separation from their families and was often abusive. Previously, in 2008, Mr. Trudeau’s predecessor, Stephen Harper, apologized to Indigenous peoples in the rest of Canada for a residential school program that the federal government operated from the 19th century until 1996. While it is commendable that Canada’s leaders acknowledge and correct Canada’s history of “cultural genocide” as identified by the Truth and Reconciliation Commission, the court system must also recognize and put into place remedial steps, such as deferring to the tribal courts to address family matters. Apologies are fine, but actions are better.
The tribal court should be the court of first resort when an Indian child is at issue. It appears paternalistic for the Canadian court to assume jurisdiction and disregard the role of the tribes in family matters. In August 1995, the Government of Canada formally recognized the inherent right of self-government for Canada’s Aboriginal Peoples by releasing its Federal Policy Guide.
If family disputes are outside the realm of self-determination for indigenous peoples in Canada, then it cannot be said that they have true self-determination. By rejecting tribal courts and practices, Canada is reverting to its’ past disregard of indigenous rights. Justice Sloan, the presiding officer in the Hill-Beaver dispute, appears to repudiate native values and rights, and has been said to have held planning conferences without Mr. Hill present, issuing orders without notifying Mr. Hill or his counsel, and overriding tribal adjudication and jurisdiction.
Contrary to the judge’s reasoning, deferring the process to the tribal court is not complex, expensive or lengthy. In reality, it is respectful, dignified and appropriate.
This case impacts more then just the parties. It is a case we are all watching and it is important to all of us that tribal rights are protected. American Indian tribes have administered family law for decades based on their beliefs and traditions, and there is no reason that similar communities in Canada should be denied the same rights.
I am concerned about this case because I do not want to see progress in this area reversed. There is no evidence that the parties can’t get a fair or expeditious ruling from the tribal process. To truly put words into action, the Canadian government should remand the case to the tribal court for original jurisdiction. In this manner, self-determination will actually be honored in practice and actions, not by apologies and words.
Carlyle W. Begay is an American politician. A member of the Republican Party, he represented the seventh district in the Arizona State Senate which is the largest Legislative State District in the Continental United States. Begay is Navajo and was born on the Navajo Nation and he is Tó'tsohnii (Big Water), born for Kinyaa'áanii (Towering House) clans.