Blazing the trail: Indigenous legal firsts in Canadian history
‘Perseverance is the key to success,’ says 1st Indigenous judge of the Supreme Court of Canada
June is National Indigenous History Month. To celebrate our accomplishments CBC Indigenous is sharing stories highlighting First Nations, Inuit and Métis trailblazers in law, medicine, science, sports — and beyond.
Perseverance is what comes to mind when Justice Michelle O'Bonsawin reflects on Indigenous peoples and the law.
Perseverance, she says, is the thread uniting Indigenous peoples' struggles to influence Canada's laws, and it's what the first Indigenous judge of the Supreme Court of Canada wants her legacy to be.
"Perseverance is the key to success," O'Bonsawin tells CBC Indigenous in a sit-down interview in Ottawa.
O'Bonsawin's family name means "pathfinder" in Abenaki, and as the first one down this particular path, she wants to set an example of humility and empathy, as someone connected to her working class and First Nations roots.
Two years into her journey, she's grateful for those who paved the way.
"We've worked very hard to get where we are today and I think that's something quite amazing to be celebrated," she says.
Here are some of those who helped blaze the trail, beginning 160 years before O'Bonsawin's 2022 appointment.
First Indigenous lawyer in Canada
First among firsts was Simcoe Kerr, a Kanien'kehà:ka (Mohawk) traditional chief from Six Nations of the Grand River near Hamilton, Ont.
Kerr was called to the bar in 1862, making him the first verifiably Indigenous person to achieve the feat in Canada, according to University of Calgary assistant professor Brian Calliou.
Kerr was born in 1837 as William John Simcoe Kerr. He was a grandson of famed Kanien'kehà:ka leader Thayendanegea Joseph Brant and a great-grandson of Sir William Johnson, Britain's 18th-century superintendent of Indian affairs.
Prominent women in the family bestowed the hereditary title of Tekarihogen on Kerr when he was an infant, and he also inherited the sprawling Brant estate in Burlington, Ont.
Kerr received power of attorney from the Haudenosaunee, also known as Iroquois, to advance their land claims in 1863, and was officially installed as Tekarihogen soon after. He was also an elected reeve, military captain and third-degree freemason.
At the time, Calliou said, a lawyer was basically a British gentleman — which Kerr wasn't. But he fit the mold of a local elite and Indigenous peoples were still quite powerful at the time.
"Settlers were coming in rapidly; however, the Indigenous people were still viewed as allies," said Calliou.
But that would start to change. In 1870, Kerr had his work cut out for him.
He feuded with Canada's first inland fisheries overseer over fishing rights near the estate. Kerr's legal tactics enraged the official, who responded with a gibe about Kerr's "Indian cunning."
Also in 1870 Kerr was elected chairman and president of the Grand General Indian Council, an early umbrella organization for First Nations that was concerned with the Indian Act. Kerr mailed Ottawa his own handwritten version of the proposed new law in 1871.
"The Act expresses, according to my ideas, the Indian wishes, yet it does in no way interfere with the privileges or [illegible] of white people," he wrote in a letter to the secretary of state.
Ultimately, Kerr enjoyed little success advancing land and fishing claims or his version of the Indian Act. Kerr died in 1875, and the new law came into force a year later.
He lived a short but eventful life in an era of assimilation, which meant he was isolated as an Indigenous barrister.
The only other documented Indigenous lawyer practising at the time was Solomon White, who was called to the bar in 1865, said Calliou, and it would take another 70 years before a third documented Indigenous person achieved the milestone.
An era of oppression
This was largely because of the expansion of residential schooling and the Indian Act, which brought severe restrictions that wouldn't start loosening until after the Second World War.
Legislative reforms in 1951 lifted a ban on First Nations hiring lawyers and bringing claims to court, and Indigenous people began entering the legal profession in greater numbers.
William (Bill) Wuttunee, from Red Pheasant First Nation in Saskatchewan, became the first Indigenous person called to bar in western Canada in 1954.
I always felt that you had to work twice as hard to get the same recognition.- Harry LaForme
Alfred Scow, of Kwikwasut'inuxw Haxwa'mis First Nation on Vancouver Island, became the first Indigenous judge in British Columbia in 1971.
Indigenous leaders countrywide were standing up against Pierre Trudeau and Jean Chrétien's widely rejected 1969 white paper on Indian policy.
Among those swept up in the climate was a young Harry LaForme, of Mississaugas of the Credit First Nation in southern Ontario.
LaForme made history as the first Indigenous person to sit on any Canadian appellate bench when he was appointed to the Ontario Court of Appeal in 2004.
In the early 1970s he planned to be an engineer, but after getting involved with the Association of Iroquois and Allied Indians, formed during white paper resistance, he concluded the courts would play a key role in the struggle.
"I could tell and sense that a lot of our questions were going to have to be answered by not just political will," he said in an interview.
He decided to apply to law school but LaForme's path from there to the bench wasn't an easy one.
The burden of being first
At Toronto's prestigious Osgoode Hall Law School, LaForme felt his peers treated Indigenous students differently. Some suggested they were second rate but got special treatment for political reasons. He remembers being told: Don't worry, they won't fail you.
"It was tough," he said.
"I always felt that you had to work twice as hard to get the same recognition as everybody else."
LaForme is proud of his judicial work and understands he was blazing a trail for others, but he hasn't forgotten the struggle and solitude.
He remembers his judicial peers as predominantly upper-class white people from places like Toronto's wealthy Rosedale neighbourhood. Few could relate to life on a reserve under the Indian Act.
"Nobody else occupied the court of appeal other than me as an Indigenous person for 14 years," he said.
"I did that alone."
And that was the burden of being first.
LaForme retired in 2018, three years early, because he was frustrated with the state of the law on Indigenous rights and sovereignty, he said.
He remains concerned that the basic core of the law on Indigenous rights in Canada is still rooted in the Doctrine of Discovery, a colonial theory that maintains European powers gained ownership of Indigenous lands by "discovering" them.
If that doesn't change, he predicts the future holds more of the same, but he also doesn't count out an exciting and unpredictable future if there is courage and creativity.
The right direction?
Back in Ottawa, O'Bonsawin recounts how when she was a trial court judge once heard a lawyer call her "Pocahontas of the north." When she was appointed to the high court, critics called it political.
Which brings things back to perseverance.
I wanted to defend those that were vulnerable, that didn't necessarily have a voice.- Justice Michelle O'Bonsawin
A member of Odanak First Nation in Quebec, O'Bonsawin, grew up in the small Francophone town of Hanmer, Ont., near Sudbury. Her father's experience of racism impacted her greatly. He and his siblings were called the "little savages of Sunnybrae," the street they grew up on.
That experience motivated her. She dreamed of being a lawyer and eventually decided to focus on mental health and Indigenous law.
"I wanted to defend those that were vulnerable, that didn't necessarily have a voice. And through the law I think I've been able to achieve that," she says.
On the law itself, O'Bonsawin points to a series of recent rulings on Indigenous governance and rights that she says suggest an intermingling of legal orders is possible.
There are now two Indigenous chief justices in Canada: Leonard Marchand on B.C.'s appeal court and Shannon Smallwood in the Northwest Territories, she says, so representation is increasing.
O'Bonsawin says she has faith in the system. Is it perfect? Of course not, she says. But is it moving in the right direction?
She says she's optimistic about the next 160 years.
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