Online gaming and native sovereignty

The Hamilton Spectator
(Oct 2, 2006)

Many of Canada's First Nations say gaming is an ancestral right, similar to rights related to hunting and fishing.

Traditionally, the key questions have been: Can the aboriginal communities show that the activity existed when the first Europeans arrived? Can they show they never surrendered the right.

The Kahnawake Mohawks south of Montreal, along with certain other First Nations, say gaming passes the test raised by both questions.

And by extension, they say, online gaming is included.

The Kahnawake Gaming Commission is now considered to be one of the world's largest hosts of online gambling sites.

The Kahnawake Mohawks argue that the Great Law of Peace has historically required them to settle disputes through non-violent measures.

"How do you do that? Through competition," said Michael Lipton, a Toronto lawyer considered one of Canada's leading experts on gaming law.

"Through foot racing, through jumping, through horseback riding, through lacrosse, through various forms of stone games.

"They claim that they have used these games before the first European arrived and they never surrendered any of those rights."

The Kahnawake Mohawks say a form of wagering also existed on those early competitions.

The native sovereignty argument specifically related to online gaming has never been fully tested in court.

But sovereignty arguments concerning more traditional forms of gaming, such as bingo, have not always been successful.

"The jurisdictional or territorial argument that's often put forward has been shot down in a number of cases all the way to the Supreme Court," said Detective Sergeant Dave Taylor of the Ontario Provincial Police illegal gaming unit. "They have no right to their own gambling, as is claimed every time we lay a charge."