¹ “The Trichter is a central figure in the myth worlds of many hunting and gathering societies. A divine figure, but deeply flawed and very human, the Trickster is found in myth cycles from the Americas, Africa, Australia, and Siberia. … The Trickster symbolizes the frailty and human qualities of the gods and their closeness to humans. These stand in pointed contrast to the omnipotent, all-knowing but distant deities that are central to the pantheons of state religions and their powerful ecclesiastical hierarchies.” Lee, R. & Daly, R., “Foragers and others” in Lee, R. & Daly, R., eds., The Cambridge Encyclopedia of Hunters and Gatherers (Cambridge: Cambridge University Press, 1999) 1 at 4–5Google Scholar [footnotes omitted].

² The term “sexual orientation issues” is used here to describe those that affect gay men and lesbians. The terms “gay men” and “lesbian” will be used to apply to same-sex relationships and sexual preference. The literature uses the terms “berdache”, “two-spirited”, “man-woman”, and “woman-man” to describe an array of roles including gay, lesbian, alternative genders, gender variance, transvestites, transsexuals, transgendered, drag queens, and butches. Many Aboriginal people find the commonly used term “berdache” offensive because it derives from a Persian and Arabic term that means “male prostitute”. As well, the more recent commonly used term, “two-spirited”, offends some Aboriginal nations who relate this term to (1) someone who is neither alive nor dead, (2) ghosts, or (3) witches. The term “transgender” is used to describe the range of alternative genders – transsexuals, transvestites, and other gender role variances – deriving from gender identity, role, or status. This term does not necessarily include or imply same-sex or heterosexual preferences. For more detailed information, see Lang, S., Men as Women, Women as Men: Changing Gender in North American Cultures (Austin: University of Texas Press, 1998) at xv–xviGoogle Scholar [hereinafter Lang].

³ Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter the Charter].

⁴ There are profound differences between western and Aboriginal constructs of nationhood, so care must be taken not to simply assume a western definition. Different histories and cultures have produced different ways for large groups of people to define themselves and relate to others, non-human life forms, space, and the land. A critical cosmological difference is that Aboriginal nations make no fundamental separation between the history of humans and the history of the world, and fuse human power with the power of the land. Another critical divergence between Aboriginal and non-Aboriginal constructs of nationhood lies in the structures of the hierarchies in social and political regimes (e.g., centralized vs. decentralized). In order to emphasize the different social constructs, some authors deliberately use the term “peoples” when referring to Aboriginal groups rather than nations. For more information, see Sterriti, N.J.et al., Tribal Boundaries in the Nass Watershed (Vancouver: University of British Columbia Press, 1998).Google Scholar

⁵ According to Anishnawbe author, Midnight Sun, “there is a tendency to conflate the ‘universal’ or ‘essentialist’ and the ‘social constructionist’ approaches [to sexual orientation] and to use contemporary western concepts of sex, gender, and sexuality as standards for comparing all other cultures.” Midnight Sun, “Sex/Gender Systems in Native North America”, in Roscoe, W.et al., eds., Living the Spirit: A Gay American Indian Anthology (New York: Martin's Press, 1988) 32 at 33Google Scholar [hereinafter Midnight Sun]. It is a premise of this paper that sexuality and gender essentially are culturally determined social constructs in the broadest sense inclusive of biological, hormonal, environmental, and psychological influences. See Williams, W., The Spirit and the Flesh: Sexual Diversity in American Indian Culture (Boston: Beacon Press, 1986) at 272Google Scholar [hereinafter Williams]. However, this is not intended to suggest that same-sex sexual preference is simply an externally determined part of human identity or a matter of an inherent personal quality or a personal choice. The reality is much more complex and beyond the scope of this paper.

⁶ Some people prefer the term “Indigenous Peoples” because it means coming from the land, it conforms to current international usage, and it is a clear rejection of colonizer labels. Others prefer to use the terms “First Nations”, “Aboriginal”, or “Indian” (the latter is mainly used by American Indians). In this paper, I mainly use the term “Aboriginal” because it is easily recognized and the most commonly used in Canada. My preference is, when possible, to use people's own names for themselves (e.g., Gitxsan, Cree, etc.).

⁷ H. Feit, “Introduction: North America”, in Lee & Daly, supra note 1 at 23.

⁸ Canada, Royal Commission on Aboriginal Peoples, Looking Forward, Looking Back 1 (Ottawa: Canada Communications Group, 1996) at 12, 15–17.Google Scholar

⁹ Ibid. at 46.

¹⁰ For example, see Anderson, M. & Halpin, M., eds., Potlatch at Gitsegukla: William Beynon's 1945 Field Notebooks (Vancouver: University of British Columbia Press, 2000).Google Scholar This is an invaluable publication of several notebooks documenting a complete series of Gitxsan feasts in 1945. Also, the extensive works of Franz Boas, Marius Barbeau, Wilson Duff, and Violet Garfield from the early 1900s to the 1960s provide volumes of anthropological and ethnographic materials about Aboriginal peoples, especially about the people of the northwest coast.

¹¹ Lang, supra note 2 at 17.

¹² Slim, H. & Thompson, P. et al. , Listening for a Change: Oral Testimony and Community Development (Gabriola Island, B.C.: New Society, 1995) at 151Google Scholar [hereinafter Slim & Thompson].

¹³ Lang, supra note 2 at 24. See also Kessler, S. & McKenna, W., Gender: An Ethnomethodological Approach (N.Y.: Wiley, 1977) at 33.Google Scholar

¹⁴ Lang, supra note 2 at 19. For example, in 1975, the executive board of the American Anthropological Association voted “not to endorse anthropological research on homosexuality across national borders”. This was later revoked.

¹⁵ Goulet, J-G. A., “The ‘Berdache’/‘Two Spirit’: A Comparison of Anthropological and Native Constructions of Gendered Identities Among the Northern Athapaskans” Journal of the Royal Anthropological Institute 2:4 (1996) 683 at 683.CrossRefGoogle Scholar

¹⁶ Ibid. at 693, 698.

¹⁷ Slim & Thompson, supra note 12 at 151.

¹⁸ Lang, supra note 2 at 17.

¹⁹ Williams, supra note 5 at 88–89.

²⁰ Lang, supra note 2. Some of Lang's sources are researchers whose work has been refuted by Goulet.

²¹ Lang, supra note 2; Williams, supra note 5; Roscoe, supra note 5.

²² Valdes, F., “Queers, Sissies, Dykes, and Tomboys: Deconstructing the Conflation of ‘Sex,’ ‘Gender,’ and ‘Sexual Orientation’ in Euro-American Law and Society” (1995) 83:1Cal. L. Rev. 1 at 212CrossRefGoogle Scholar [hereinafter Valdes].

²³ Cain, P., “Stories from the Gender Garden: Transsexuals and Anti-discrimination Law” (1998) 75:4Den. U. L. Rev. 1321 at 1333.Google Scholar

²⁴ Ibid. at 1335.

²⁵ Ibid. at 1355–56 [footnotes omitted]. See Fausto-Sterling, A., “The Five Sexes: Why Male and Female Are Not Enough” Science (1993) at 20–24.Google Scholar

²⁶ Williams, supra note 5 at 33–34.

²⁷ Lang, supra note 2 at 214, 254.

²⁸ Ibid. at 212–13.

²⁹ Ibid. at 188.

³⁰ Ibid. at 268–85. Lang also provides examples of Aboriginal women who did achieve economic independence and thereby acquire same-sex partners, but were targeted by extreme male violence and sexual assault. Whether this homophobic behaviour was pre-contact or was a product of westernization and Christianization is unclear. However, there were also Aboriginal “manly women” or “men-women” who were highly successful and accepted.

³¹ Williams, supra note 5 at 111.

³² Lang, supra note 2 at 201–202.

³³ R. Daly, “Witsuwit'en and Gitxsan of the Western Cordillera”, in Lee & Daly, supra note 1 at 73.

³⁴ R. Overstall, “Encountering the Spirit in the Land: ‘Property’ in a Kinship-based Legal Order” [unpublished paper presented at Property Rights in Colonial Imagination and Experience, a colloquium of the Faculty of Law, University of Victoria, February 2001] at 8–9 [hereinafter Overstall].

³⁵ To be properly understood, this practice must be very carefully contextualized within Gitxsan spiritual and reincarnation conceptions of life and death. Arguably, justice systems in any society reflect that society's beliefs about life and death.

³⁶ Williams, supra note 5 at 17–30, and interview with Gitxsan language and culture teacher K. Ludwig (31 January 2001).

³⁷ Goulet, supra 15 note at 693. Also, interview with K. Ludwig, ibid.

³⁸ Lang, supra note 2 at 324. See also Allen, P., “Lesbians in American Indian Culture” Conditions 7 (1981) 67 at 79.Google Scholar

³⁹ Interviews with G. Dechamps, former community development worker with Two-Spirited People of First Nations, Toronto (January & March 2001).

⁴⁰ Barsh, R. T., “Aboriginal Self-Government in the United States: A Qualitative Political Analysis” Royal Commission on Aboriginal Peoples (Ottawa: Minister of Supply and Services, 1993) at 7.Google Scholar

⁴¹ Province of B.C., Ministry of Aboriginal Affairs, Glossary of Treaty-Related Terms, online: http://www.aaf.gov.bc.aaf/pubs/glossary.htm (accessed 09–03–01) at 6.

⁴² Nisga'a Final Agreement Act, S.B.C. 1999, c. 2 at 18 [hereinafter Nisga'a Treaty].

⁴³ Sanders, D., “‘We Intend to Live Here Forever’: A Primer on the Nisga'a Treaty” (1999) 33:1U.B.C. L. Rev. 103 at 127Google Scholar; Constitution Act, 1982, being Schedule B to the Canada Act 1982, (U.K.), 1982, c. 11 [hereinafter Constitution Act, 1982]. Section 32(1) of the Charter reads, “This Charter applies (a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.”

⁴⁴ Canada, Aboriginal Self-Government: The Government of Canada's Approach to Implementation of the Inherent Right and Negotiation of Aboriginal Self-Government (Ottawa: Ministry of Supply and Services, 1995)Google Scholar in D. Sanders, supra note 43.

⁴⁵ Jordon, E., “Residual Sex Discrimination in the Indian Act: Constitutional Remedies” (1995) 11 J.L. & Soc. Pol'y, 213 at 227.Google Scholar

⁴⁶ Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II. No. 5.

⁴⁷ Hogg, P., Constitutional Law of Canada: 1997 Student Edition (Carswell: Toronto, 1997) at 566–67.Google Scholar

⁴⁸ Ibid.

⁴⁹ Indian Act, R.S.C. 1985, c. 1–5.

⁵⁰ For example, Re: K. (1995), 23 O.R. (3d) 679 [adoption]; Ward v. Canada (A. G.) [1993] 2 S.C.R. 689 [social group status]; R. v. Paterson, [1998] B.C.J. No. 126 (C.A.) [jury bias]; Chamberlain v. Surrey School District No. 36, [2000] B.C.J. No. 1875 (B.C.C.A.) at 519 [(school resources]; Trinity Western University v. British Columbia College of Teachers, [1998] B.C.J. No. 3029 (C.A.) [homophobic employment restrictions]; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] S.C.J. No. 66, [2000] 2 S.C.R. 1120 [same-sex pornography]; Vancouver Rape Relief Society v. British Columbia (Human Rights Commission), [2000] B.C.J. No. 1143 (B.C.S.C.) [transsexual discrimination]; Vriend v. Alberta, [1998] 1 S.C.R. 493 [human rights protection for sexual orientation]; Egan v. Canada, [1995] 2 S.C.R. 513 [same-sex pension benefits]; M. v. H., [1999] 2 S.C.R. 3 [opposite-sex spouse definition found unconstitutional].

⁵¹ Barnsley, P., “Woman fired, files human rights complaint” Windspeaker 20:4 [Edmonton] (August 2002) at 2.Google Scholar

⁵² Nahanee, T., “Dancing With A Guerrilla: Aboriginal Women, Justice and the Charter”, in Canada, Royal Commission on Aboriginal Peoples, Aboriginal Peoples and the Justice System: Report of the National Round Table on Aboriginal Justice Issues (Ottawa: Supply and Services Canada, 1993) 359 at 360–61, 371.Google Scholar Nahanee recognizes that “men are not so well off either in the Aboriginal world. They have the high unemployment rate; they suffer the same poverty; they suffer higher suicide rates; and often find themselves in conflict with the law. What the law has done to women, which it has not done to men, is to exclude women from the community.”

⁵³ Coker, D., “Enhancing Autonomy for Battered Women: Lessons from Navajo Peacemaking” (1999) 47:1U.C.L.A. L. Rev. 1 at 16.Google Scholar

⁵⁴ Ibid [footnote omitted].

⁵⁵ Nahanee, supra note 52.

⁵⁶ Valencia-Weber, G. & Zuni, C., “Domestic Violence and Tribal Protection of Indigenous Women in the United States” (1995) 69:69St. John's L. Rev. 69 at 69.Google Scholar

⁵⁷ Ibid.

⁵⁸ G. Stacey-Moore, Speaker, Native Women's Association of Canada, from a speech on Native Women's Political Rights given on numerous occasions, archived at N.W.A.C., referenced in Nahanee, supra note 52 at 364.

⁵⁹ There are two schools of thought regarding whether the Charter applies to Indian Bands established pursuant to the Indian Act. On the one hand, Kent McNeil argues the Indian Band structure is only a current-day expression of the unextinguished, constitutionally protected Aboriginal right of self-government. Given this, McNeil concludes that, as a matter of constitutional law and with the exception of the s. 28 gender equality provision, the Charter does not apply to Indian Bands. See McNeil, K., “Aboriginal Governments and the Canadian Charter of Rights and Freedoms” (1996) 34:1Osgoode Hall L.J. 62.Google Scholar On the other hand, the case law appears to support the Charter's applicability to Indian Bands as legislative creatures. For a recent example, see Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 24 S.C.J. In Corbiere, the S.C.C, held that the residential voting restrictions as set out in the Indian Act violated s. 15(1) of the Charter and were not justifiable under s. 1. However, the Court restricted the ruling to apply only to the Batchewana Band, because other Aboriginal groups might be able to establish an opposing Aboriginal right as protected by s. 35 of the Constitution Act, 1982. Note that the S.C.C. does not make an explicit reference to the Charter applying to Indian Bands. Rather, the Charter's applicability to Indian Bands appears to be presumed by the Court. Also for an extensive analysis of this issue, see, Macklem, P., Indigenous Difference and the Constitution of Canada (Toronto: University of Toronto Press, 2001) at 194–233.Google Scholar

⁶⁰ Nahanee, supra note 52 at 367.

⁶¹ Ibid. at 371.

⁶² Ibid. at 364.

⁶³ See Silman, J., ed., Enough is Enough: Aboriginal Women Speak Out (Toronto: Women's Press, 1987)Google Scholar for a general discussion of the personal experiences of Aboriginal women regarding violence, equality, membership, benefits, social concerns, public and political action, and divisions within families and communities.

⁶⁴ Native Women's Association of Canada v. Canada, [1995] 1 C.N.L.R. 47 (S.C.C.). The S.C.C, held that the federal government's decision not to fund N.W.A.C. to participate in the 1992 constitutional review process did not violate the Charter and did not come within s. 35(4) of the Constitution Act, 1982. The effect of this case was to limit Aboriginal women from participating as an independent party in the national political and legal debates.

⁶⁵ Palmer, R.C., “The Origins of Property in England” (1985) 3 L. & Hist. Rev. 1.CrossRefGoogle Scholar

⁶⁶ Kymlicka, W., “Individual and Community Rights” in Baker, J., ed., Group Rights (Toronto: University of Toronto Press, 1994) 17.Google Scholar Kymlicka first argues that group rights involve the right of the group against its own members, a restriction of individual freedom in the name of group solidarity. He also argues that the special rights of the group derive from its unfair treatment by mainstream society.

⁶⁷ The reality in western law is that group rights are recognized in the form of corporations and governments, but these are classified by legislation and case-law as pseudo-individuals. Accordingly, these entities are afforded some legal rights under the Charter as protected individual rights. For an example of western group rights applied in legislation and Charter case law, see the Canada Business Corporations Act, R.S.C. 1985, c. C-44.; Irwin Toy Ltd. v. Quebec (A. G.), [1989] 1 S.C.R. 927.

⁶⁸ Ignatieff, M., The Rights Revolution (Toronto: Anansi Press, 2000) at 115.Google Scholar Regarding group rights, some people ask, “[h]ow long must the Canadian majority continue to pay for the abuses done to aboriginal peoples in times past? How long must it do penance for racism, sexism, and other forms of injustice?” Penance or guilt without practical, useful social change is not useful to Aboriginal people. Racism is not simply a grudge that Aboriginal people are unwilling to release. Rights are not earned and do not arise out of past injustice; rights for Aboriginal people exist because of Aboriginal nations' pre-contact ownership and occupation of the North American continent. This position was affirmed in the S.C.C.'s Delgamuukw decision, infra note 76.

⁶⁹ Ibid. On page 1 of his book, Ignatieff, briefly describes the “rights revolution” as “the amazing way in which rights talk has transformed how we think about ourselves as Citizens, as men and women, and as parents. The rights revolution took off in the 1960s in all industrialized countries, and it is still running its course.”

⁷⁰ In my opinion, the rights framework is seriously problematic for Aboriginal peoples because it has become the way that Aboriginal people relate to one another internally and to the rest of the world externally. This means that the rights framework fundamentally has come to shape Aboriginal peoples' identity individually and collectively.

⁷¹ For an explanation of these theories, see Janoski, T., Citizenship and Civil Society (U.K.: Cambridge University Press, 1998) at 19.CrossRefGoogle Scholar

⁷² Chapman, M., “Indigenous Peoples and International Human Rights: Towards a Guarantee for the Territorial Connection” (1997) 26 Anglo-A. L. Rev. 357 at 377.Google Scholar

⁷³ Overstall, supra note 34 at 6. “The feast is central in recreating the people's primary relationship with the world. All representations of an event or entity call the power of that event back into action. These representations include events where the group acquired territory, such as the adaawk [oral history]….”

⁷⁴ A Gitxsan person usually had access to the father's House territories until adulthood, at which time he or she would move to the mother's territory. The Gitxsan land tenure system was flexible enough to allow various use and access arrangements.

⁷⁵ Palmer, supra note 65.

⁷⁶ See for example, the seminal cases of Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; R. v. Sparrow, [1990] 3 C.N.L.R. 160 (S.C.C.), online: QL.; R. v. Van der Peet, [1996] 4 C.N.L.R. 177 (S.C.C.), online: QL. Also see J. Borrows, “With or Without You: First Nations Law (in Canada)” (1996) 41 McGill L.J. 629 for an important discussion about the sui generis incorporation of Aboriginal law into Canadian law.

⁷⁷ The term “external” is used here to mean external to the Gitxsan House, and so applies to the post-contact institution of the Indian Act band.

⁷⁸ Borrows, J., “Contemporary Traditional Equality: The Effect of the Charter on First Nations Politics” in Schneiderman, D. & Sutherland, K., eds., Charting the Consequences: the Impact of Charter Rights on Canadian Law and Politics (Toronto: University of Toronto Press, 1997) 169.Google Scholar This article provides an excellent discussion about the rights debate and self-government. Also see Macklem, supra note 59.

⁷⁹ Nyamu, C. I., “How Should Human Rights and Development Respond to Cultural Legitimization of Gender Hierarchy in Developing Countries?” (2000) 41:2Harv. Int'l L.J. 381.Google Scholar

⁸⁰ Ibid. at 381–82.

⁸¹ Ibid. at 404.

⁸² Sawridge v. Canada, [1995] 4 C.N.L.R. 121 (FCTD), online: QL. In this case, the Sawridge Band argued that on the basis of inherent self-government, it had a constitutionally protected Aboriginal right to discriminate against Aboriginal women through its membership code. Muldoon J. concluded that 150 years of federal legislation of Indian membership effectively extinguished any inherent Aboriginal right to control band/tribal membership. Sawridge could potentially have a very limiting effect on future self-government litigation for Aboriginal groups, and it also shows the danger of relying on Indian Act models as the basis for claiming an Aboriginal right.

⁸³ Nyamu, supra note 79 at 405.

⁸⁴ Ibid.

⁸⁵ Ibid. at 406.

⁸⁶ Ibid. at 410–13.

⁸⁷ This is very important for cases where rights arguments are made to restrict the participation and rights of some Aboriginal people as was done in Corbiere, supra note 59 [non-resident voting rights] and Sawridge supra note 82 [membership].

⁸⁸ Nyamu supra note 79 at 415.

⁸⁹ Ignatieff, M., Blood and Belonging (Toronto: Penguin, 1994).Google Scholar Ignatieff analyzes six international conflicts — Germany, Ukraine, Quebec, Kurdistan, Northern Ireland, and Croatia and Serbia.

⁹⁰ Nahanee, supra note 52 at 374.