I’ve taken to boiling it down in this way when people ask who the Métis are: we are an Indigenous people. Fin.
The Daniels decision
In April 2016, the Supreme Court of Canada released the Daniels decision,34 and the media has been almost universal in getting the judgment completely wrong. The court was asked to decide whether Métis and non-status Indians should be included in section 91(24) of the Constitution Act, 1867.35 The court answered in the affirmative. So, what does this mean?
Section 91 of the Constitution defines the legislative authority of the federal government. Section 92 defines the legislative authority of the provinces. This is basic division of powers stuff.
The provinces have power over things like the solemnization of marriage, property and civil rights in the province, setting up municipalities, and so on. The federal government has power over things like the armed forces, banking, criminal law, and so on.
Responsibility and funding for systems of education, health care, social services, provincial infrastructure (water and waste management, roads, and so on) are generally a provincial power. There is an important exception, though, in section 91(24) of the Constitution, which states the federal government is responsible for “Indians, and Land Reserved for Indians.” The federal government must provide to “Indians” the services normally provided by the provinces (education, health care, social services, and so on).
So, you have provincial systems, which tend to be available to everyone living off-reserve, and you have federal systems, which are focused on reserve populations. Lots to say about how inadequate those federal systems are, but let’s move on.
The federal government has a long history of trying to interpret section 91(24) to mean they have responsibility only over Indians on Indian lands. The Court keeps insisting these are two separate things, Indians and Land Reserved for Indians.
“Who is an Indian?” then becomes important, because if you are an Indian, the federal government, not the provinces, is responsible for you.
The first group to clearly be “Indians” to come under the Indian Act is status Indians.
The second group to be defined as Indians under section 91(24) of the Constitution was the Inuit in 1939.36 This obviously did not turn Inuit people into First Nations peoples, and Inuit peoples did not become Indians under the Indian Act. It was just about assigning responsibility, in this case the federal government, not the provinces, for Inuit.
Non-status Indians are those who are not considered Indians under the Indian Act but are still obviously Aboriginal peoples. The Métis are another group of Aboriginal peoples. For years and years and years and years, both groups have been tossed back and forth like a hot potato between the provinces and the federal government, each one saying, “They’re your problem, not ours!” This has left non-status Indians and Métis in a sort of legal limbo.
The Daniels decision clarifies that both groups are a constitutional responsibility of the federal government and not the provinces. “Indians” now basically just means what “Aboriginal” does in section 35 of the Constitution Act, 1982.37 It includes: Indians (status and non-status alike), Inuit, and Métis.
Here are important things to keep in mind:
Non-status Indians and Métis are still not governed by the Indian Act.
Non-status Indians and Métis did not just become status Indians.
The federal government will still attempt to limit its responsibility to status Indians living on-reserve, which is where most of the (inadequate) federal funding goes.
Non-status Indians and Métis do not suddenly have the right to live on-reserve (if they do not already have that right); this decision does not ensure that non-status Indians and Métis will have new federal funding opportunities, that is going to have to be negotiated for, or fought with, the federal government.
In addition to the confusion about what it means to be “Indians” under section 91(24) of the Constitution, there are a lot of claims being made that the definition of “Métis” has been changed.
The court basically said that for the purposes of deciding jurisdiction, it is not important to decide which people are Métis and which people are non-status. The federal government has legislative authority over all of these groups.
A lot of people are focusing in on a quote in the judgment however, which itself comes from a book discussing Métis identity:
There is no one exclusive Métis people in Canada, anymore than there is no one exclusive Indian people in Canada. The Métis of eastern Canada and northern Canada are as distinct from Red River Métis as any two peoples can be.…As early as 1650, a distinct Métis community developed in LeHeve [sic], Nova Scotia, separate from Acadians and Micmac Indians. All Métis are aboriginal people. All have Indian ancestry.”38
This is not a finding of fact; this is merely what is referred to as obiter dictum, a thing “said in passing,” which is not legally binding. The context of this quote in the decision is an extremely brief discussion of what this chapter has been about: there is more than one definition of what “Métis” means, and there is not a universally accepted definition. The court did not just acknowledge the existence of Métis communities in Nova Scotia or anywhere else.
The decision states: “Determining whether particular individuals or communities are non-status Indians or Métis and therefore ‘Indians’ under s. 91(24), is a fact-driven question to be decided on a case-by-case basis in the future” (bolding mine). There has been no blanket acceptance, and the burden of proof is still on the individual or community to prove they are Métis or non-status.
The decision also discussed whether the three-point Powley Test for defining who qualifies as Métis need not apply to section 91(24). The court determined the federal government has legislative authority over those who self-identify as Métis and have an ancestral connection to a historic Métis community. The third part of the test, acceptance by a contemporary Métis community, is not needed.
While this is a less stringent test for the purposes of deciding who can legislate with respect to the Métis, it is by no means a slam dunk for individuals or communities identifying as Métis! It is easy to self-identity, but not so easy to prove the existence of a historic Métis community!
There have been many cases brought before the courts that have attempted to prove the presence of a historic Métis community east of Ontario, but, in every single instance, the courts have found the evidence was lacking. Judicially, there are no Métis communities in Quebec or farther east. That has not changed with this decision.
Further, the three-point Powley Test remains intact for the purposes of the Aboriginal rights protected by section 35 of the Constitution Act, 1982. The court had this to say:
The criteria in Powley were developed specifically for purposes of applying s. 35, which is about protecting historic community-held rights. That is why acceptance by the community was found to be, for purposes of who is included as Métis under s. 35, a prerequisite to holding those rights.39
What this will mean in terms of actual services and legislation, no one yet knows. What we do know after Daniels is when it comes time to ask for these things, we can go straight to the federal government rather than vacillate uncertainly between the provinces and the feds; and, most likely, they will make us fight tooth and nail every step of the way.
NOTES
1.A hamlet in central Alberta.
2.“Our Legacy,” University of Saskatchewan Archives, accessed December 29, 2015, http://scaa.sk.ca/ourlegacy/exhibit_scrip. Scrip was a method of extinguishing Aboriginal title to open up lands for settlement in the West. Scrip was an individual extinguishment rather than a collective one. (Canada sees the numbered or historic treaties as collective extinguishment.)
3.By national identity, I do not mean in the nation-state sense. Indigenous peoples are not trying to claim or prove we are nation states, necessarily. Rather, it refers to national identity in the sense of being a connected people with
our own sociopolitical orders, shared culture, territory, and history.
4.For a history of the Red River Métis (who settled along the Red and Assiniboine rivers in what is now known as Manitoba) within the wider context of the Plains Métis, try: Michel Hogue, Metis and the Medicine Line: Creating a Border and Dividing a People (Regina: University of Regina Press, 2015). This book also looks at how notions of race helped Canada and the U.S. gain access to Indigenous lands, and the subsequent settlement of the West.
5.Which reads: “In this Act, ‘aboriginal peoples of Canada’ includes the Indian, Inuit and Métis peoples of Canada.”
6.Maria Campbell, Stories of the Road Allowance People (Penticton: Theytus Books, 1995). As Métis became increasingly dispossessed of land, many of them squatted on Crown land set aside for future use; hence, the term road allowances. Campbell’s lovely book of poetry shares stories of the experiences of these families.
7.For more stories of life as a “halfbreed” on the Prairies, see: Maria Campbell, Halfbreed (Lincoln: University of Nebraska Press, 1973).
8.Probably the most accessible and entertaining biography of Louis Riel is Chester Brown’s graphic novel. I highly recommend it. Chester Brown, Louis Riel: A Comic-Strip Biography (Montreal: Drawn and Quarterly, 2003).
9.Photo from family collection, provided by Crystal Hayes, my mother’s cousin (my aunt via Métis kinship).
10.“Term/name searched,” Dictionary Title, accessed October 12, 2015, http://biographi.ca/en/bio.php?id_nbr=3287.
11.“Métis Identity Matters,” Winnipeg Free Press, September 2, 2011, accessed October 13, 2015, http://www.winnipegfreepress.com/opinion/editorials/metis-identity-matters-115625309.html.
12.R. v. Powley, 2003, SCC 43, [2003] 2 SCR 207, http://www.canlii.org/en/ca/scc/doc/2003/2003scc43/2003scc43.html.
13.Métis Nation of Alberta webpage, http://www.albertametis.com/MNAHome/Home.aspx.
14.Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37. This case makes it clear that one cannot legally identify as both Métis and First Nations and continue to be a member of the Métis Settlements in northern Alberta. First Nations peoples are excluded from this membership and can be removed.
15.To clarify further, the Interim Métis Harvesting Agreement, which was not extended, did not grant any sort of Aboriginal rights. The province simply does not have the power to recognize, or not recognize, Aboriginal rights. Rather, the province agreed not to charge Métis hunters as long as those hunters had a valid MNA membership. This was a contractual agreement only and in no way impacts any inherent hunting rights the Métis may have.
16.Some have said this is an unfair reading of Saul’s work. I understand his use of Métis here is intended to reflect a mixing of cultures, a hybridization that created a uniquely Canadian context, which is far more influenced by Indigenous cultures than is often acknowledged. It is precisely this use of the term I am objecting to. Stop using Métis to mean “mixed culture,” particularly when the mixing of cultures referred to occurred within an incredibly oppressive context.
17.Adam Gaudry, “The Métis-ization of Canada: The process of claiming Louis Riel, Métissage, and the Métis people as Canada’s mythical origin,” Aboriginal Policy Studies, Vol. 2, No. 2 (2013): accessed April 3, 2016, https://ejournals.library.ualberta.ca/index.php/aps/article/view/17889/pdf. This piece nicely outlines and deconstructs the ways in which the Métis identity is sometimes claimed on behalf of Canada.
18.Adam Gaudry, “Respecting Métis Nationhood and Self-Determination in Matters of Métis Identity,” pp. 152–163 in Aboriginal History: A Reader, Geoff Read and Kristin Burnett, ed. (Toronto: Oxford University Press, 2015). If it isn’t obviously ridiculous, then please read this spot-on piece by Adam Gaudry, which helps to clarify the origin of the Métis identity.
19.Eve Tuck, and Wayne Yang, “Decolonization Is Not a Metaphor,” Decolonization: Indigeneity, Education and Society 1, no. 1 (2012): accessed December 27, 2015, http://decolonization.org/index.php/des/article/view/18630/15554, pages 10–11.
20.L’Empreinte, directed by Carole Poliquin and Yvan Dubuc (QC: Isca Productions, 2015), http://www.cinoche.com/films/l-empreinte/index.html.
21.Isabelle Hontebeyrie, “Lever the Voile sur le ‘Grand Tabou de L’Histoire du Quebec,’” March 6, 2015, accessed December 27, 2015, http://www.journaldemontreal.com/2015/03/06/lever-le-voile-sur-le-grand-tabou-de-lhistoire-du-quebec.
22.“Quebec Muslim Women ‘Scared to Walk Alone,’” CBC News, November 6, 2013, accessed December 27, 2015, http://www.cbc.ca/news/canada/montreal/quebec-muslim-women-scared-to-walk-alone-1.2416443; Rachel Zellers, “Troubling Question of Blackface in Quebec,” The Star, February 16, 2015, accessed December 17, 2015, http://www.thestar.com/opinion/commentary/2015/02/16/troubling-question-of-blackface-in-quebec.html.
23.Chantal Guy, “L’Indien Pilier Manquent de L’Identité Québéquoise,” La Presse, March 9, 2015, accessed December 27, 2015, http://plus.lapresse.ca/screens/0f959929-7aac-4322-b560-b90d562316e7%7C_0.html.
24.Gérard Bouchard, “Le Faux ‘Sang Indien’ des Québéquois,” February 7, 2015, accessed December 27, 2015, http://www.lapresse.ca/debats/nos-collaborateurs/gerard-bouchard/201502/06/01-4841971-le-faux-sang-indien-des-quebecois.php. Of course, Bouchard is a bit of a character; he was attempting to prove the “purity” of the Quebecois.
25.“L’Empreinte Bande-Annonce,” Les Productions Isca, YouTube video, October 21, 2014, accessed December 27, 2015, https://www.youtube.com/watch?v=pRYg7cP1RQM.
26.Steve Martel, “Nos Origines,” YouTube video, February 22, 2015, accessed December 27, 2015, https://www.youtube.com/watch?v=vo7bmkQZ7bg.
27.Robert Michael Morrissey, “Kaskaskia Social Network: Kinship and Assimilation in the French-Illinois Borderlands, 1695–1735,” The William and Mary Quarterly 70, no. 1 (2013): 103–146, http://www.jstor.org/stable/10.5309/willmaryquar.70.1.0103?seq=1#page_scan_tab_contents; Cecile Vidal, “Africains et Européens au Pays des Illinois Durant la Periode Français (1699–1765),” French Colonial History 3 (2003): 51–68.
Kaskaskia ceased to exist as a community in the mid-1700s. Morrissey points out that, despite there being a number of mixed-marriage families between French and First Nations peoples, Kaskaskia was unique in the way in which First Nations women were assimilated into French culture rather than the other way around. A mostly agrarian society, with some fur-trading links, Kaskaskia and other French communities in the area relied heavily on the labour of enslaved Africans.
Despite this, a number of people use genealogical ties to Kaskaskia as the basis for identifying as Métis now, merely on the basis that mixed-race (White and First Nations) couples did exist there. Vidal further asserts White women arrived in the community as early as 1720 and were preferred for marriage.
28.Kim Tallbear, Native American DNA: Tribal Belonging and the False Promise of Genetic Science (Minneapolis: University of Minnesota Press, 2013). Here, you will find a more complete discussion of how blood, DNA, and genealogy are used to undermine (and claim) indigeneity.
29.Framing the exercise of asserting a Métis identity as “fundamentalism” is one way in which a number of groups not linked to the Red River in any way attempt to argue for a more expansive definition of Métis identity. The basis for this is the notion that enforcing definitions is inherently colonial (or fundamentalism). This ignores the fact that First Nations also enforce definitions of membership, as is the right of all Indigenous peoples, including the Métis.
30.Nicholas Vrooman, “Cree, Assiniboine, Ojibwa, and Michif: The Nêhiyaw Pwat Confederacy/Iron Alliance in Montana, https://www.academia.edu/8968491/Cree_Assiniboine_Ojibwa_and_Michif_The_Nehiyaw_Pwat_Confederacy_Iron_Alliance_in_Montana.
31.Darryl Leroux unpacks this myth-making very clearly here: https://soundcloud.com/indigenousstudiesusask/native-studies-speakers-series-darryl-leroux-now-i-am-metis-how-white-people-become-indigenous.
I also put together a storify of my live twee
ts as I listened to the above talk: https://storify.com/apihtawikosisan/now-i-am-metis-how-white-people-become-indigenous.
32.Chris Andersen, Métis: Race, Recognition, and the Struggle for Indigenous Peoplehood (Vancouver: UBC Press, 2014), 24. In my opinion, this book is the most complete exploration of Métis identity that exists. If you still have questions after this chapter, Andersen’s book is an essential read.
33.Chris Andersen, “‘I’m Métis, What’s Your Excuse?’ On the Optics and the Ethics of the Misrecognition of Métis in Canada,” Aboriginal Policy Studies 1, no. 2 (2011): 164.
34.Daniels v. Canada (Indian Affairs and Northern Development), 2016, SCC 12. Available online: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15858/index.do.
35.Constitution Act, 1867, 30 & 31 Victoria, c.3 (UK)
36.Re: Eskimo, [1939] SCR. 104.
37.Constitution Act, 1982, Schedule B to the Canada Act, 1982 (UK), 1982, c 11.
38.supra note 34 at para 17.
39.Ibid, para 49.
5
Feel the Inukness
Inuit Identity
If your understanding of the Inuit and Inuit culture came from films like Nanook of the North, it’s time to update your references.1 You might want to start with Becky Qilavvaq’s 2012 short film starring Anguti Johnson called Feel the Inukness.2 The video features Anguti flipping through various songs on his iPod before settling on a rousing jig, which has him dancing all around Iqaluit in a whole-body jigging style very specific to the North. The video went viral and, among my Inuit students in particular, it got heavy play for many months. While the video is sure to have you giggling, Qilavvaq pointed out in an interview that the video is more than just something to make you laugh. “It’s about being ourselves and embracing who we are,” she said.3
Indigenous Writes Page 7