The Knowledge Totem pole, carved by Coast Salish artist Cicero August and his sons Darrell and Doug August of the Cowichan Tribes, on the front lawn of the legislature at Victoria in May, 2024.CHAD HIPOLITO/The Canadian Press
For several years, Native American tribal groups have sought to assert the right to hunt, influence resource development and even shape school curriculums north of the border, after the Supreme Court of Canada ruled that even groups outside the country can be considered aboriginal peoples of Canada.
Now, a Canadian constitutional scholar is warning that those U.S. groups could also claim land in Canada, citing the controversial case of the Cowichan Tribes, in which the B.C. Supreme Court granted the tribes aboriginal title over privately held lots in the city of Richmond.
No U.S.-based tribe has to date sought to assert land rights in Canada. Nor have Canadian courts made clear whether or how such an assertion would succeed. Lawyers who specialize in Indigenous law say such a claim is unlikely – but possible.
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But the concern that such a case could emerge reflects a broader anxiety over recent Canadian court decisions that have elevated the redress of historical injustices above more modern constructs, such as private land title or even the country’s borders.
It is a legal landscape in which “there could be foreign-based Indigenous groups that have aboriginal title claims that are senior to the rights of private property holders,” said Dwight Newman, who holds a Canada research chair in rights, communities and constitutional law at the University of Saskatchewan.
That is not, he added, a question of minor importance.
“We do have a lot of potential transborder Indigenous claims along our various borders with the United States and Greenland.”
Even requiring Canadian authorities to take the lesser step of consulting with groups outside the country, Prof. Newman said, presents “a really challenging conclusion in terms of Canadian sovereignty.”
That is already happening.
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In December, Canada’s Federal Court ruled that the Lummi Nation in northwestern Washington State was owed a constitutional duty to consult on a B.C. port expansion project based on their unproven claim that they historically used territory that is now part of Canada, in the province’s Lower Mainland.
“It’s possible that they may bring a title claim at some point in the future on one of their village sites. And so they should,” said James Hickling, a lawyer who has worked on rights and title cases in B.C.
“What this is about – which is something that all Canadians should embrace – is this is about justice,” Mr. Hickling said.
He accused scholars like Prof. Newman of making arguments tinged with political ideology.
In the case of the Cowichan, Mr. Hickling said, the group has sought title to land in Richmond that was once a village but whose ownership was fraudulently taken by some of the highest-ranking British officials in the province at the time.
“The case is really a remedy for that original sin,” he said.
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Similarly, the Supreme Court decided that U.S. groups can be considered aboriginal peoples of Canada based on the history of the Lakes Tribe in the Kootenays, which had a registered band and reserve in B.C. when the Canadian government declared it extinct in 1956.
Some descendants of that tribe now live in the U.S., where they are part of the Confederated Tribes of the Colville Reservation, which was involved in the landmark R. v. Desautel case.
In that 2021 decision, the Supreme Court of Canada said the Lakes Tribe, also called the Sinixt, were aboriginal peoples of Canada, even if its people live south of the border. The case involved a Lakes Tribe hunter from Washington State who shot an elk in southeastern B.C.
“It’s simply not true on any version of the facts to call Sinixt people ‘foreigners,’” said Julia Riddle, a Vancouver lawyer who has acted for the group. “They have a far better claim to being from B.C. than the vast majority of people in this province.”
Canada’s Constitution, she added, “protects the rights of an aboriginal people of Canada to live as they always have. Yes, theoretically that could include land rights.”
But making such a claim, she said, would require a rigorous court process, with proof of exclusive occupation and control of Canadian territory at the time the country asserted sovereignty.
To date, she said, the Sinixt have focused their efforts not on asserting title but on the management of land and resources, opening an office in Nelson, B.C., and spending money on fish, wildlife and forestry matters. They have also sued for the right to influence how their history is taught in B.C. schools.
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Those efforts have been opposed by B.C. Premier David Eby and Canadian-based groups such as the Osoyoos Indian Band, which says its membership rolls also contain Sinixt descendants.
Legally, it remains unclear whether a U.S.-based group would be entitled to similar rights as groups in Canada.
The December Federal Court ruling, for example, found that a less thorough consultation with the Lummi was acceptable, unlike the full duty to consult with B.C.-based groups such as the Tsawwassen First Nation and Musqueam Indian Band.
Could a group such as the Lummi, then, claim title to land in Canada?
That remains a “completely unanswered question,” said Max Faille, a Vancouver-based lawyer who works on Indigenous issues. He noted that even among Indigenous groups in Canada, there are important differences. The Supreme Court, for example, has “cast doubt on whether the Métis could assert aboriginal title for themselves,” he said.
At the same time, neither the Cowichan nor other B.C. groups have sought to quash private property rights.
“I know of no Indigenous nation who has said that what they want is to claw back fee-simple land,” said Louise Mandell, a pioneering lawyer in Indigenous law who has worked on a number of landmark cases.
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She continues to act for the Haida Nation, which in 2024 won aboriginal title over all of Haida Gwaii, the coastal archipelago formerly known as the Queen Charlotte Islands.
But in that agreement the Haida said they would honour private land ownership.
“Haida Gwaii is a bit of a model,” Ms. Mandell said. The Haida have continued to demand compensation for what they call “wrongful alienation” of land. ”But we’re not going against fee-simple owners. It’s between the Haida and the Crown.”