Of aboriginals, Métis, First Nations, Inuit and Indians (status-holding and otherwise)

Posted on January 10, 2013 in Equality Policy Context

NationalPost.com – FullComment
Jan 10, 2013.   Dwight Newman

The reaction to this week’s Daniels decision from the Federal Court — which extends federal jurisdiction to Métis and non-status Indians — highlights many misunderstandings about Aboriginal rights in Canada. This is not surprising: Aboriginal law is a complex field, and the very words used in describing it have shifted over time.

To understand the debates occurring this week, we need a broader context. And I hope readers will forgive my use of a little legal terminology in achieving that.

The Constitution Act, 1867 (formerly called the BNA Act) contains lists of areas of jurisdiction of the federal and provincial governments. These are found mainly in sections 91 and 92 of the act. Section 91(24) includes a federal power in relation to “Indians, and Lands reserved for the Indians.”

The term “Indian” obviously was a misnomer arising from Christopher Columbus’ poor understanding of geography. “First Nations” often is now used in place of “Indian.” “Aboriginal” is a broader term, referring to Indian, Inuit and Métis; and sometimes the broader term can be used and sometimes it cannot. “Indian,” however, remains a term in a number of legal instruments

To confuse matters, many individuals proudly self-identify as “Indians.” However, many individuals within this legal category would also prefer to be known by the specific aboriginal nation from which they come (e.g., Cree, Mohawk, etc.).

In 1867, when Section 91(24) was included, there was a sense that the federal government would better protect Indians from the choices that local majorities might otherwise make at the provincial level. In 1871, the federal government created the Indian Act to consolidate various pieces of legislation. There have been various changes to that act over time, and there are ongoing discussions of further amendments.

The Indian Act never covered the Inuit communities of the north, even though there was a court ruling in the 1930s to the effect that the federal government’s Section 91(24) jurisdiction included jurisdiction in relation to the Inuit. The federal government managed those relationships within its general jurisdiction in the northern territories.

The Indian Act provides legal structures for reserves (which are also, themselves, sometimes called First Nations) but it also has imposed many legal constraints. Because of some policies it imposed (residential schools being among the most devastating), it carries a negative symbolism for many aboriginal people. However, it also has been the legal regime for a long time, and has helped shape community identities for 140 years.

The Indian Act also defines who is an “Indian” for purposes of the act, and for purposes of many government programs. Someone who is an Indian according to the Indian Act is a so-called “status Indian.” (In the Prairie provinces, many “status Indians” call themselves “treaty Indians” and speak of their “treaty card” rather than their “status card.”)

The Indian Act’s identification of status Indians starts from who was counted early on by federal officials as a member of a particular First Nation (or band) that had entered into a treaty with the Crown or otherwise been recognized as a band.

The Indian Act also had membership rules related to inheritance of Indian status. These rules did not necessarily match with the practices of the communities themselves.

Some individuals whom particular communities would have identified as members were left out by the federal officials in the very beginning. Some whole communities were missed. Some individuals were cut out by the rules concerning inheritance of Indian status (which changed over time, and were also subject to later challenges because of their discriminatory effects against women).

Someone who would have been an Indian, but for the fact that he or she was excluded by these various rules, is a so-called “non-status Indian.”

Many individuals who are legally non-status Indians, at least in parts of the country, will actually refer to themselves as “Métis.” The term sounds less delegitimizing and, for that matter, is shorter.

But the term “Métis” also can be problematic, because it has a specific legal sense and actually refers to a different sort of identity.

Historic Métis communities grew up early on, amongst individuals of mixed ancestry, and these communities developed distinct cultures. These cultures were different from those of both European settlers and of First Nations. Descendants within these historic communities who have a Métis identity are legally Métis, and may be entitled to rights that enable the maintaining of Métis culture.

All of these rules on the identity of different individuals sound complicated. And they are. But then again, other cultural groups also have complex rules on how membership descends between generations.

Now we get to this week’s judgment: The Daniels decision by the Federal Court clarifies for the first time that section 91(24) of the Constitution Act, 1867 gives the federal government the same jurisdiction in relation to Métis (I am using that word in the traditional historical sense) and non-status Indians that it had in relation to status Indians and Inuit.

In one sense, there could be mixed views on whether that’s a good or bad thing for Métis and non-status Indian communities. Seeing what a mess Indian Act structures made might give good reason to run as far as possible from federal-government jurisdiction.

However, Métis and non-status Indian communities have wanted some government to have responsibility to assist them in maintaining their cultures and in facing their challenges. Although the Daniels judge is careful not to pronounce on such matters, the decision logically implies that the federal government will need to take on some responsibilities, help support structures for cultural self-determination and so on.

The federal government may have been preparing for this when it renamed the Indian Affairs department as “Aboriginal Affairs.” With the current government’s focus on economic empowerment and opportunity, we might expect to see further federal support for education and entrepreneurship programs for Métis and non-status Indians.

There may be other consequences as well, some of them complicated. The decision may render past provincial legislation concerning Métis or non-status Indian lands unconstitutional. In some provinces, this may lend support to ongoing claims for a land base, because past provincial legislation that might have extinguished Métis land rights will now implicitly be regarded as outside provincial jurisdiction.

In Alberta, the province acted long ago under premier Peter Lougheed and his Métis Settlements Act to establish a land base and self-government for a number of Métis communities. But this week’s decision may now call that framework into question. (The judge was aware of this but said that this specific issue was not before the court.)

Subject to whatever happens on appeal, there obviously will be many consequences from the Daniels decision. Hopefully, clearer understanding of the terms involved will enable better understanding of the decision, as well as of the issues it raises.

National Post

Dwight Newman is professor of Law at the University of Saskatchewan.

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