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Black History Month: Sero v. Gault

This year for Black History Month I will be examining Colour-Coded: A Legal History of Racism in Canada, 1900-1950 by Constance Backhouse. Please read the preamble post if you haven’t already. Part 1 of this series is here. Part 2 is here, and a follow-up can be found here.

Part of the main thrust of this year’s Black History Month is that while the history of black people is not defined by racism, it is almost impossible to understand the contemporary black experience without carefully examining the way racism has shaped it. As such, there is some valuable information to be gleaned from comparing how white supremacist entities treated other (i.e., non-black minorities) groups and people. Put another way, I believe it is both possible and valuable to examine, for example, the discrimination and ultimate dispossession of the black population of Halifax’s Africville by understanding other groups whose property rights (and indeed, human rights) have been simply ignored by an uncaring and paternalistic political system.

One such example (which is roughly contemporaneous with some of the more egregious aspects of the Africville saga) comes to us in the form of the case of Sero v Gault. Eliza Sero was a Tyendinaga Mohawk woman who shared custody of a fishing net with another woman, through which she gained her livelihood. A provincial government fisheries inspector named Thomas Gault seized Sero’s net on the grounds that she did not have a provincial license. This was no small matter for Sero – her way of supporting herself was caught up in that net (a net she didn’t own outright to begin with), and so she sued.

It is the grounds upon which Sero based her argument that are of particular interest (no more so than during the days of #IdleNoMore) – she claimed that as a member of the Hadenosaunee Confederacy, Eliza was a member of a sovereign nation and consequently was not subject to the laws of another country that had not been negotiated through treaty. Indeed, the Hadenosaunee (a political coalition of six different First Nations that predated the arrival of English settlers) had made treaty agreements with the Crown that specifically forbade the English from interfering with Eliza Sero’s use of the land.

It is necessary to acknowledge the background of the case. During the early days of European exploration, a treaty was negotiated between the Hadenosaunee and the settlers – an agreement that was commemorated in the Two Row Wampum. When the English were in need of allies during their fight with the French (and later the Americans), the Hadenosaunee honoured their agreements with their friends and provided military support. Of course, in the negotiation with the Americans following the war, the English gave away large rafts of territory south of the newly-created border that were traditional Iroquois territory. Recognizing the unfairness of giving away land that did not belong to them, the English and Hadenosaunee found appropriate lands in present-day Ontario that would be sovereign Iroquois territory.

Now it is crucial to understand that, from the perspective of the Hadenosaunee, this was an agreement made between equals. The two nations had made an agreement, had drawn ‘borders’, had agreed to respect each other’s claims to their own lands. The Hadenosaunee had, and continued to implement, a parallel political and judicial system for resolving their own disputes. The only acquiescence they had made, as far as British laws within Hadenosaunee territory were concerned, was to allow the British judiciary to punish British rapists and thieves who committed crimes within Hadenosaunee lands (roughly akin, I suppose, to an extradition treaty).

So imagine, for those of you living in Canada, how you would feel if an FBI agent came to your house and seized your car because you had been caught driving without a state auto insurance policy from the USA. It’s absurd, right? Well, from Sero’s perspective this absurdity was unhappily visited upon her at the hands of Mr. Gault.

There are a few more interesting things to note by way of preamble to the actual facts of the case. The first is that Mohawk culture was matrilineal, meaning that Eliza Sero as head of her household was negotiating from a position of authority within her community. The second interesting point is that the Sero family had a longstanding relationship with the Crown, insofar as Sero’s sons had served in the Canadian military in the first World War. Third, it is worth noting that, only a few decades previously, Canada had found it necessary to write legislation allowing aboriginal people to testify in courts – their non-belief in Jesus had previously made their testimony ineligible in the court of law.

I suppose there is not a shorter straw that Eliza Sero could have drawn than to have her case presided over by Judge William Renwick Riddell. Justice Riddell was a man with not only a well-established reputation for anti-aboriginal bias, but who proudly identified as an “Old-Time Misogynist” to boot. Despite his support for the abolition of slavery, Riddell was an open and notorious white supremacist who viewed aboriginal sovereignty as an annoying fiction that he would not stomach to humour. Riddell did not recognize the validity of the Two Row Wampum treaty (or any subsequent agreements built thereupon), littering his decision against Sero* with references to ‘treaties’, often prefaced with the sneering inclusion of the words “so-called”.

Justice Riddell, according to Backhouse, failed in his duty to consider legal precedent when making his decision. Had he done so, he would have perhaps noted that there were many Canadian laws that specifically made exceptions for things that happened to ‘Indians’ on ‘reserve’ – supporting Sero’s claim that of sovereign rights. Riddell also ignored the framework of international law (about which he was an acknowledged expert) governing the duties of non-citizens – Riddell simply asserted that because Sero had been born on Crown land (which it explicitly wasn’t), that she was therefore subject to Crown laws.

Perhaps the most bizarre aspect of RIddell’s decision was the comparison he drew between aboriginal people and Jewish or French immigrants living in England. Riddell decided to not only let hang the legal precedent, but the very facts of history – it was the English to immigrated to Hadenosaunee territory, and decidedly not the other way ’round. None of these facts seemed to bother Judge Riddell in the least, as he handed down his sneering and patronizing announcement that Eliza Sero was, against all justice in any sense of the word, subject to the laws of a foreign country on the say-so of a vaunted Old-Time Misogynist.

Despite the uniequivocal rejection of the idea of respecting the sovereignty of aboriginal people, the federal government still deemed it necessary, following Sero v Gault, to amend the Indian Act to forbid First Nations from raising funds to hire a lawyer without the express consent of the Government of Canada. In the event that Nations wanted to sue Canada for breaching their rights, you can imagine what the success rate for such endeavours would have been.

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*Oh what, you thought she would have won? Don’t expect too many of these stories to have happy endings.