Pre Columbian Way of Life not Barred by Canadian Constitution

Wanted: Preexisting Political communities that constituted through the representation of their own origin

Supporters, outside a Brantford, Ont., courtroom, of the girl, known as J.J, and her mother, known as D.H., cheered when Justice Gethin Edward concluded the family’s aboriginal rights trumped the hospital’s attempts to compel child-welfare authorities to intervene and send J.J. back to the hospital for chemotherapy.

When an eleven-year-old aboriginal girl was diagnosed with leukemia it was naturally assumed that everything would be done under modern medical scientific practice to save her life. The girl began chemotherapy for her acute lymphoblastic leukemia in August. After ten days she and her mother stated that McMaster Children’s Hospital in Hamilton was injecting “poison” into her body and refused further treatment.

Background Information

Doctors at the hospital viewed conventional treatment as the only hope to combat her cancer. When her mother informed pediatric oncologists at the hospital that the child would be given traditional indigenous medical treatment, the hospital turned to the Brant Child and Family Services but they refused to intervene, claiming the matter was not that of child protection but of health-care consent.

And now a judge has ruled that “First Nations” people legally have a right to their traditional native health care, favoring it over modern medical procedures. Rejecting the hospital’s request that the child be ordered back to the hospital by the local children’s aid society, his decision was roundly applauded by most in the packed courtroom. The judge’s concluding ruling that traditional health care represents an integral portion of the family’s Mohawk culture and as such is protected under the Constitution left those in attendance elated.

Citing a provision recognizing “existing aboriginal and treaty rights” generally used to support fishing and hunting rights, Justice Edward stated that the evidence he weighed demonstrated that the girl’s mother is “deeply committed to her longhouse beliefs and her belief that traditional medicines work”. The family’s right to practise traditional medicine is not dependent on the treatments’ proven success as recognized by the “Western medical paradigm”, he ruled. “This is not an eleventh-hour epiphany employed to take her daughter out of the rigours of chemotherapy. Rather it is a decision made by a mother, on behalf of a daughter she truly loves, steeped in a practice that has been rooted in their culture from its beginnings.” Justice G. Edward

‘This is monumental’

Outside the court, Six Nations (Band Council) Chief Ava Hill and New Credit First Nations (Band Council) Chief Bryan Laforme welcomed the ruling, saying it has broader effects across Canada.

​”This is monumental,” said Laforme. “It reaffirms our right to be Indian and to practise our medicines in the traditional way.”

Hill said the mother is “overjoyed,” with the news.

When asked about what specific treatment the girl is receiving now, Hill declined to say, adding that was between the family and the girl’s traditional healer — which Hill said involves the same confidentiality of a doctor-patient relationship.

The mother, Hill said, “has the right to do whatever she wants to try and save her child.”

Officials from the Brant County Children’s Aid Society also welcomed Edward’s ruling, saying it prevents the “trauma” of taking the girl away from her family while she was being treated.

Brant CAS executive director Andrew Koster said his organization’s argument wasn’t based on the relative merits of medical treatments, but on the fact that the case involved a loving Mohawk mother who would have been separated from her Mohawk daughter.

“This was going to be two years of chemo. Does that mean we were going to take this child away for two years? And suppose she didn’t make it?” Koster said.

“I truly did not believe that we should be taking her into care,” he said.

First Nations communities have claimed a victory for their traditional methods and way of life.

Assuming that the decisions are upheld will have monumental implications nation-wide as New Credit Chief Laforme stated during the media statement moments after the decision was heard.

More than words!

In the court proceedings the Mohawk Creation story was used by Justice Edwards to determine the prior existing rights of the Mohawk culture and society. This is an intriguing aspect of the case that has even broader implications than may be suggested by Mr. Laforme. If we look at Justice Edwards actual conclusion we can read into the reach of this decision and what it could potentially mean for the Mohawk culture and way of life.

Paragraph 78 read: Certainly this creation story supports the conclusion the use of the traditional medicines by Six Nation was practiced prior to Eropean contact. Secondly, as to the integral nature of the practice Professor Martin-Hill in her paper quotes from Christopher Jock’s article “Spirituality for Sale: Sacred Knowledge in the Consumer Age”:

Traditional ceremonies and spiritual practices… are precious gifts given to Indian people by the Creator. These sacred way have enabled us as Indian people to survive – miraculously – the onslaught of five centuries effort by non-Indians and their government to exterminate us by extinguishing all traces of our traditional way of life. Today, these precious sacred traditions continue to afford American Indian people of all [nations] the strength and vitality we need in the struggle we face everyday; they also offer us our best hope for stable and vibrant future. These sacred traditions are an enduring and indispensable “life raft” without which we would be quickly overwhelmed by the threaten our survival. Because our sacred traditions are so precious to us, we cannot allow then to be desecrated and abused (CSPIRIT, 1993 IN Jock)

Now that Oral history of the origins of the Mohawk has been put to test in the Canadian courts and the prior rights of the Mohawk can be established through the Oral traditions as being a “vital” element to the culture and society.

The now accepted ‘Mohawk’ science of medicine and practise is only one element of cultural integrity and vital to the existence of a culture. The main elements for a culture to thrive are based on each society but may include: organization, tradition, language, arts, beliefs, government/representation, economy, sciences.

The broad nature of the rights that may have existed prior to European contact is very fascinating, this must include preexisting Political communities that constituted through the representation of their own origin.

The right of representation has many forms and the Six Nations community had the earliest known participatory democracy that became the forerunner for the US constitution.

This seems to be an overlooked fact that the Mohawk Nation does indeed have its own rule of law or Its independent constitution called the Kaianerekowa that existed prior to European contact.


Diagram of the two separate orders of law the the Six Nations and Canada. Courtesy HRNABrantford

Read Justice Edwards Opinion in Full

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