Indian Governments and the Canadian Charter of Rights and Freedoms

• Main Authors: Long, J. Anthony, Chiste, Katherine Beaty
• Format: Article in Journal/Newspaper
• Language: unknown
• Published: eScholarship, University of California 1994
• Subjects: spirit dancing; community's responsibility; individual members; cultural tradition; aboriginal rights; Canadian law; supremacy of the individual; British Columbia; Canada; Indian; First Nations
• Online Access: https://escholarship.org/uc/item/5d13s486

In February 1992, a judge of the Supreme Court of the province of British Columbia ruled that the native ritual of spirit dancing is subject to Canadian law protecting individual rights and is not an aboriginal right under Section 35(1)of the Constitution Act, 1982. The decision emerged from a civil suit brought by a Salish Indian against several other members of the Salish Nation on Vancouver Island, in which the plaintiff argued that he had been unwillingly subjected to this ritual. Spirit dancing, which was banned under Canadian law from 1880 to 1951, is a therapeutic ritual involving fasting and confinement until a person hears the song of a guardian spirit and begins singing and dancing. Ordinarily, entrance into this ritual is voluntary and is considered to be an honor by tribal members. According to Salish tradition, however, relatives may request that a person be subject to this rite to help that person solve personal problems; this tradition reflects the community’s responsibility for its individual members. The judge’s decision angered tribal leaders within coastal Indian communities, who claim that cultural traditions stressing the primacy of the community over its members are collective aboriginal rights that are shielded from Canadian law, which is rooted in the belief of the supremacy of the individual. The spirit dancing case brings into sharp focus an issue that has been a critical part of the aboriginal rights debate in Canada for more than a decade, namely whether the protections of the Charter of Rights and Freedoms guaranteed to Canadian citizens should apply to Indian First Nations in their relationship with their own tribal members, who are also Canadian citizens.