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Saturday, April 16, 2016

Nobody Here but Us Indians

Metis woman. Glenbow Museum collecction.

On April 14, the Supreme Court issued a long-awaited decision in Daniels v. Canada, regarding aboriginal status. Metis and non-status Indians across Canada celebrated what they saw as a huge victory. David Chartrand, president of the Manitoba Métis Federation, had trouble finding the right word to describe his emotions, writes the Globe and Mail. “Ecstatic, excited, happy, pleased.” Gabriel Daniels, son of the man who launched the court case originally back in 1999, said he was “overwhelmed and ecstatic.” Metis leaders were “screaming” with excitement in the lobby of the Supreme Court building. The Toronto Star headlined “Supreme Court recognizes rights of Metis, non-status Indians.”

I fear their celebration may be premature. The ultimate effect of the current decision may be to make the concept of “Indian,” and the special privileges it has come to entail, untenable.

At first glance at the ruling, the Metis actually mostly lost. They asked the court to decide three things: “(1) that Métis and non-status Indians are 'Indians' under s. 91(24) of the Constitution Act, 1867; (2) that the federal Crown owes a fiduciary duty to Métis and non-status Indians; and (3) that Métis and non-status Indians have the right to be consulted and negotiated with.” The court actually ruled against them on two out of these three, and it was the two parts that involved any additional rights for Metis. All they agreed with the plaintiffs on was the definition of “Indian” as it appears in the original British North America Act of 1867. Yes, "Indians" includes Metis and non-status Indians. And all the BNA Act says about "Indians" is that they are a federal, not a provincial, responsibility. The ruling implicitly denies that this entails any new rights. It explicitly says that it sees no obligation on the part of the federal government to pass any new legislation.

Nevertheless, there is a history here, and you can understand why the Metis leaders think the gravy train is soon to stop regularly at their door. Long before Canada was confederated, in the Royal Proclamation of 1763, the British crown accepted a fiduciary responsibility for the interests of Canadian Indians. This, from the beginning, set us loyalists apart from the Americans, and indeed was one of the causes of both the American War of Independence, and the War of 1812. Unlike the American rebels, the British held that Indians had rights. They could not be simply displaced piecemeal by new arrivals; the entire matter needed to be dealt with by negotiation and agreement, and rather than being adversarial, the government should seek to be a fair arbitor between two groups of its subjects. The Supreme Court ruling would seem, therefore, to be self-contradictory. If Indians are a federal responsibility, the Canadian crown continues to have this fiduciary responsibility toward them, inherited in 1867 from the British crown. And this fiduciary responsibility would seem logically to include making some effort to be aware of their wishes, and to meet them.

This indeed already seems to be the tack taken by the Trudeau government.

Metis women and children
But given this reading, this expansion of the meaning of the term "Indian" adds a huge new federal liability. Status Indians get a lot of special benefits. Granted; these new "Indians" have no treaties, and so the government owes them no treaty benefits. On the other hand, doesn't this mean that their aboriginal land rights remain unextinguished, and so the government is obliged in fact to negotiate new treaties with them to extinguish their title?

According to official figures, there are about as many non-status Indians and Metis as there are status Indians. The federal budget estimates a current annual expenditure on Indians of around 8.1 billion dollars. The real figure is probably higher; virtually every arm and operation of government has added special programmes for aboriginals, the costs of which probably do not appear in this line item. Whatever the real figure is, it must now presumably be doubled. In the face of a budget deficit, in the middle of a recession.

But that may not be the end of the problem, The real problem may be much bigger. Is the official count complete?

The realization that this was true is probably why the Supreme Court tried to back away from the second and third parts of the plaintiffs' submission. The Supreme Court surely realized that applying these principles would make the entire concept of “aboriginal rights” economically untenable.

But the whole concept was always untenable. And the most the Supremes are really doing here, I suspect, is avoiding blame for the denoument.

The problem starts, as everyone points out, with the Indian Act, in 1876. The entire concept of an Indian Act implies the idea that different rules will apply to different groups of Canadians. That obviously violates essential democratic and liberal principles. Yet at the time that the Act was parred, this surely seemed only a temporary problem. The entire purpose of the original treaties, very much at Indian insistence, was assimilation. The Indians were assigned ample land to farm, farm implements, and education for their kids in farming. There should have been no need, after a generation or two, to worry about treaty rights. The individual Indians would have all moved on to unhyphenated Canadianness, and left the jurisdiction of the original band. With no members, the band ceases to be, and the treaty lapses.

Nevertheless, even as the numbered treaties were signed, it was clear that Indian status was, and was going to be, a thorny question. After all, the Metis were already an established group. Indians were already only a minority of the population, growing proportionately smaller. In the natural course of things, just like other Canadians, they were not always going to marry into their own ethnic group. Unless there are either laws or strong social taboos involved, love is going to find its way. The English are averse to marrying out, due to a certain Calvinist assumption that just about anyone you do not know well is damned. But Catholics, the French, the Irish, the Highland Scots, as were commonly employed by the fur trading companies, do not think this way. Neither do most Indian tribes.

This process of assimilation,just as Macdonald and the framers of the Indian Act expected, is real and has been ongoing. Indian leaders themselves predict (and lament) that, of this current generation, more than half have married or will marry non-natives. Left to itself, Indianness as a distinct identity, unless kept alive by artificial means, might have died out by now, or should soon die out, aand we would all return to being equals.

In the meantime, nevertheless, the Indian Act did make some attempt to deal with the issue. What to do if an Indian marries a non-Indian? Do the children, and their children, count as Indians, under the treaties, or do they count as ordinary Canadians, on the other side in the original bargain?

The original Indian Act specified that, if an Indian man married a non-Indian woman, the woman too became officially Indian. Their children were Indian. The male children of any such union might again marry non-Indians, generation after generation, all of them officially remaining status Indians.

But if an Indian woman married a non-Indian man, the opposite happened. She waived her Indian status, and became a plain Canadian. The children were ordinary Canadians, and their children in turn.

This involved certain assumptions, probably mostly valid for the time, regarding sex roles. Was this discrimination against women? In fact, in the eyes of the original framers, including the Indians who signed the treaties, it was probably the opposite. They saw remaining under treaty as an unfortunate and temporary condition, and merging successfully into the Canadian mainstream as the desired outcome. Originally, although being a status Indian had benefits, like the right to hunt and fish on any unused land, so did becoming fully Canadian. In remaining on reserve and retaining status, Indians could not vote, could not buy alcohol, did not own their own property, could not leave reserve without permission of an Indian agent, and so forth. Waiving Indian status was like growing up.

For example, according to the original Indian Act, if any Indian earned a university degree, qualified for a profession, or served in the armed forces, they automatically waived Indian status. As the entire point of the Indian Act was to enable assimilation, its framers obviously did not think that any such provision would ever deter Indians from earning a degree, learning a profession, or serving in the armed forces. Indeed, what narion does not encourage citizens to serve in the armed forces? No, both Indians and government saw losing Indian status as a reward, not a penalty. These were proud proofs that you had assimilated.

What was not a problem became a problem over time, with other changes to the Act. With the civil rights movement in the US South, all of this suddenly looked like racial discrimination. All such provisions were dropped, anything that seemed to put status Indians at any kind of a disadvantage as compared with other Canadians. But not only did the benefits remain untouched; they grew exponentially. An original provision, in only one treaty, to supply reserves with a chest of medicines became over time a commitment to provide comprehensive freee medical care. A provision to build schools or hire teachers, originally to teach farming and basic trades to the next generation, became a permanent obligation to pay for any education for any Indian at any level. While, of course, retaining Indian status. Nothing in the treaties says the government is required to provide any Indians with a living, or fund band organizations, or even send food in case of famine. Yet this obligation is now taken for granted on both sides.

As the benefits of remaining a status Indian grew, and the benefits of assimilation were removed, perceptions changed. Having done everything they could to avoid the criticism that the Indian Act discriminated against Indians, the government had, in doing so, inadvertently supplied feminists with everything they needed for a criticism that the Indian Act discriminated against women. .

So, in 1985, the Mulroney government changed the Act. Indian women no longer lost their status if they married out. Nor did their children. Indians also no longer waived their treaty status by getting an education, or serving in the army.

It just seemed fair. Of course, by now, the Act and treaties wer in fact doing the opposite of what was intended. Instead of enabling assimilation, they were now penalizing it.

More importantly, from the government's point of view, given the grwtly expanded benefits of being Indian, making the Indian Act sex-neutral opened up a huge new liability. Now they had suddenly doubled the number of Indians, by their own estimate.

Note that, if this estimate is accurate, it means that half of Canada's original Indian population had already assimiilated by thast point. Unfortunately, that progress was now thrown into reverse, and people who had already assimilated were to be returned to Indian status.

No doubt seeing this problem, and especially an unsupportable additional liability, the government tried to retain a distinction. The descendants of Indian men were always Indians. The children and grandchildren of Indian women who married out were still Indians; but after two generations, their descendants no longer were. A limited number of new liabilities were thus accepted; but the full can of worms was not yet opened.

This of course did not satisfy the Metis. People with little or no actual Indian ancestry might receive all the benefits of status Indians. Others, because they traced their line, like all the Metis, ultimately through the mother, got nothing more than the rest of us. This was sure to hit the fan in time. Now it has.

So, next question: if Metis are Indians, who is Metis? So long as "Indian" was understood as limited to status Indians, this was a more manageable, if already a morally awkward, problem. The Department of Indian Affairs, its predecessors and its successors, kept an actual list of those it deemed to have Indian status, Children were entered at birth. Now we have to go back into the general population, and create a new list. How to do this reliably and fairly?

An earlier ruling, R. V. Powley (2003) offered this definition. A Metis is someone who 1. self-identifies as a Metis, 2. has an ancestral connection with the Metis community, and 3. is accepted as a member by that community.

The current court ruling threw out the third part of that “test.” One can see why. First, the Metis associations are themselves self-selected groups of individuals. Who is to say these groups are representative of the Metis community? We'll never know, if they get to choose their own members. Second, this test penalizes anyone whose ancestors tried in good faith to assimilate, and rewards those who did not. Perhaps assimilation is now a dirty word, but it is unfair to punish their descendants. Third, this would only kick the original problem down the road a piece. Instead of unfairness to by non-status Indians, the system would now have to defend unfairness to non-status Metis. The only way to avoid this was and is to be as inclusive in their definition as possble.Anyone with Indian ancestry is Metis, if they say so.

Unfortunately, this magnifies the government's potential liability quite a bit. Never mind doubling the number of Indians. Genetic studies suggest that more than half of the current population of Western Canada has Indian blood. The figure may be larger or smaller for the East; I don't know. On the one hand, the Indian proportion of the population has been smaller for the last few generations, and many immigrants have arrived only over the last few generations. On the other, Indians and settlers have been in contact here for longer, and each generation is another opportunity to intermarry. It seems likely at least that those whose ancestors have been here for a couple of centuries or more are now properly aboriginal, by this new definition.

To give some idea of the pending problem, witness what happened in Newfoundland when, in 2011, the federal government allowed for the establishment of a new Mi'kmaq band. This did not involve new members being covered by any existing land treaty. Nevertheless, they got Indian status and Indian cards. By 2012, the original deadline, the band had received over 100,000 applications for membership. The deadline had to be extended, and as of this writing, four years later, applications are still being accepted. It is now the largest Indian band in Canada. This is from an overall Newfoundland population of 500,000. Note too that Newfoundland officially has no aboriginal inhabitants: the Beothuk are long extinct, largely because they did everything they could to avoid any contact with the settlers. No intermarriage likely there. Massive recent migration from elsewhere in Canada? How many people annually relocate to Newfoundland, and why? For all the jobs?

Canada may have to declare bankruptcy.

Or, I think, we may here see the solution to our problems.

We all declare ourselves Metis, and we achieve equality. Granted, we must establish our aboriginal heritage. But this need not be by supplying legal documents, marriage registers and baptism certificates. After all, insisting on this will ultimately reproduce the original inequality yet again: some Indians being more equal than others. Our ancestors were Indians, right? Indians had no writing. Do you really expect, if our claims are authentic, that we are likely to have white man's documents to prove it?

Of course not. The Supreme Court has already ruled, with regards to the legal reinterpretation of Indian treaties, that Indian oral tradition must be given equal weight with any legal government documents or the official text of the treaty.

So our word that there is an oral tradition in our family of some Indian ancestry should be sufficient.

Would Indians lie?

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