"A precarious chancy situation": aboriginal gaming rights in Canada.

• Author: Mathen, Carissima

1. INTRODUCTION

   [I]t was dark in the underworld. The people and the animals that go about by day wanted more light but the night animals--the Bear, the Panther, and the Owl--wanted darkness. They disputed for a long time and at last agreed to play the moccasin game to decide the matter. If the day animals were to win, there would be light but if the night animals were triumphant, it would always be dark. And so began the battle between the nocturnal and the diurnal sides. In the course of the game they invented gambling songs which are sung to this day. As they played, some of their genii (familiar spirits) joined in the contest. The luck changed back and forth between the two factions; the moon-loving players took the advantage and then those who longed for eternal day got the upper hand. After a long period of playing, singing and wrestling with luck, the players grew tired and indifferent to the game. Suddenly it was morning and the game was undecided so everyone packed up his counters and his blanket and fled home. That's why the original alternation of day and night has never been changed. (1) Faculty of Law (Common Law Section), University of Ottawa. This article was supported by the New Brunswick Heritage Fund. With sincere thanks to Matt Estabrooks, Ilana Schrager, Joel Payne, James Morrisonm, and Matt Rowe for stalwart research assistance. I am grateful to Larry Chartrand for his careful review of an earlier draft, and to Michael Plaxton and anonymous reviewers for helpful suggestions. This article initially grew out of numerous conversations with Jason J Kee, whose support and encouragement inspire me in all things.

   Consider the creation story. It attempts to situate human beings in a particular place and time, to explain who we are and how we came to be here. Though creation stories often are associated with spiritually significant matters, they also can be political and prosaic, reflecting social understandings and preoccupations. Nation states, for example, have creation stories, and Canada is no exception. In fact, there are several such stories about Canada: discovery; the founding nations; continental distinctiveness; international influence; demographic diversity; and, finally, constitutional patriation, (2) which recognizes the essential role played by Aboriginal peoples. (3)

   There have been numerous cases involving Aboriginal rights. Most of these cases concern particular kinds of conflicts: over land, (4) over waterways, (5) over forests, (6) or over fish (7). The creation story recounted above is about culture, and about trying to make sense of the world. To do this, it uses a particular human endeavour: a game. Building on the striking image in that story, this article situates Aboriginal gaming practices within the particular "creation story" that patriation provides.

   Modern-day gaming is marked by highly intermingled social and commercial factors. Attempts to regulate it cannot be justified by arguments about scarcity of resources. Instead, the power to regulate rests on assumptions about the power of the Canadian state to set acceptable boundaries for social interaction for all who are subject to its laws. Part II of this article discusses the cultural significance of Aboriginal gaming, exploring a variety of historical First Nations gaming practices. Next, because gaming historically has been a matter for the criminal law, Part III examines the history of the gaming provisions in the Criminal Code and the factors precipitating the move from prohibition to regulation. After considering, in Part IV, some modern commercial Aboriginal gaming ventures, Part V offers an analysis of unapproved gaming operations utilizing the current framework of section 35 with some attention to the interrelation between Aboriginal rights and criminal law. I conclude that the legal responses to Aboriginal assertions of gaming-specific rights reflect the powerful mechanisms by which the Canadian state continues to control Aboriginal peoples, communities, and identity.

   Before proceeding, a caution is warranted. The very legitimacy of the current Aboriginal rights framework has been subject to trenchant critique. Some Aboriginal scholars label the Canadian legal system, including section 35, as "a source of injustice". (8) While this article investigates avenues of redress using Canadian legal principles, I recognize the inevitable challenges and trade-offs that Aboriginal peoples confront when they decide to pursue rights claims.

2. GAMING IN ABORIGINAL CULTURES: HISTORY AND SIGNIFICANCE

   1. Traditional Practices

      Gaming is a near universal feature of human cultures. Ancient murals dating back 5000 years depict it among the Egyptians; the Greeks and Romans played a version of roulette using spinning chariot wheels; (9) and ancient Israelites played a form of craps. (10) It is, therefore, unsurprising that gaming practices of equivalent provenance are found in many Aboriginal communities and have been described as integral to them.

      In the late 19th century, Stewart Culin completed what remains the most comprehensive study of North American Aboriginal gaming and wagering practices. Originally published in 1907, (11) his research revealed that of some 250 tribes, fully 95% practiced some form of gaming. (12) Culin noted that the gaming practices were indigenous--"the direct and natural outgrowth of aboriginal institutions in America." (13) The fact that different tribes played the same types of games suggested a common ancestry, and the "wide distribution and range of variations" was a reliable indicator of "high antiquity". (14) Thus, gaming was a part of most Aboriginal societies long before European contact. (15)

      Culin classified Aboriginal "games of chance" into dice and guessing games. (16) Dice games (17) were played silently with two to four players, and spectators could bet on the outcome. (18) Such games were observed among 130 tribes belonging to 30 linguistic groups, from the Maliseet of New Brunswick to the Haida of British Columbia. (19) Though played by men and women, "[i]n their ceremonial forms these [were] distinctively men's games." (20)

      Guessing games, which Culin further divided into four groups, were not played as widely. In two groupings, a player would distribute a number of sticks between his hands, the object being to guess which hand held an occasionally marked stick. In a third, a player would guess the relative position of sticks that had been arranged by the opponent while hidden from view. (21) A fourth known as the "moccasin game" was a kind of shell game involving hiding small objects. (22)

      Wagering could assume an important role. Among the Iroquois, for example, games were often "played more for the sake of the wager than for the enjoyment of the game itself". (23) It is accepted that "gambling, including high stakes gambling, took place in connection with many [traditional Ojibwa] games". (24) This trend was observed by several early European explorers and missionaries. Nicolas Perrot recorded that "[e]ntire villages [were] seen gambling away their possessions ... on this game, and ruining themselves". (25) Louis Hennepin, a Recollet missionary, noted that "[t]here are some so given to this game that they will gamble away even their great coat." (26) The Jesuit missionary Jerome Lalemant described an incident in Teanaustayae, a Huron village, where the village "lost 30 porcelain collars, each of a thousand beads, which are in this country equal to what you would call in France 50,000 pearls". (27)

      Occasionally, the object of a wager went beyond material possessions. Among some tribes of the Wisconsin Menominee the losers became the winners' slaves. (28) Edwin T Denig states that among the Assiniboine of North Dakota, it was commonplace for a man to gamble away his wife, and that women frequently were "thrashed by their husbands" for their own gambling losses. (29)

      These early western accounts of Aboriginal gaming must be approached with caution. Certainly, the reports do not reveal uniform narratives about the violence and passionate behavior that supposedly attended the games. Gabriel Lalemant, a Jesuit missionary and nephew of Jerome, wrote that:

      [Players], although passionately fond of gambling, show themselves superior to our Europeans. They hardly ever evince either joy in winning or sadness in losing, playing with most remarkable tranquility. (30) The Recollet missionary Chretien Le Clercq, working among the Mi'kmaq on the Gaspe peninsula in the mid-1600s, described them as "very faithful in paying whatever they have lost at the game, without quarrelling or expressing the least word of impatience". (31)

      More extreme early accounts of gaming behavior may be partially explained by the cultural biases of western observers, whose descriptions often "fail to integrate First Nations beliefs about the minimal importance of personal possessions". (32) In addition, Belanger contends that early Christian missionaries had a motive to exaggerate negative behavior associated with Aboriginal gaming:

      The contrasting perceptions of First Nations gambling speak less about the reality of the situation than about European agendas concerning the need to "civilize the savage." To confirm the inability of Canada's Aboriginal population to control their emotions, and even kill over games of chance, was to impress on one's superiors the need to continue with missionary work. It was an effective means of maintaining one's employment. (33) Belanger argues that the "concept of wagering and loss as it applied to Europeans and the British did not parallel First Nations gaming and wagering practices." (34) Importantly, gaming losses could be offset by the generosity of the community, so that a person who had "lost everything" was not left destitute.

      Still, the negative accounts described above cannot simply be discarded. While acknowledging that early European observers displayed...