We are “Indians”!

Today, January 8, 2013, is the beginning of the unification of all aboriginal people in Canada. By Federal court ruling, the Constitution Act will be changed to include “metis” and “non status Indians” as “Indians” under the act, with the same rights afforded all Status Indians on Reservations. The implications of this will surely invoke a flurry of new rules and court cases.

While the Indian Act will effectively continue----It will pose some very tough questions about it’s validity. With the help of all aboriginal people, those on Reserves will surely become more independent, self determined and ultimately be free from the repressive paternal regulations of the Act. The question of “Who is Metis?” and “Who is Indian?” is now a little clearer. Many people, before today, self identified as “Metis” because there was no other choice. But this ruling opens the door to identify primarily as “Indian” and to possibly apply for membership in any given band in this country----or alternatively create a new First Nation band from, for example, an extended family!

The rights of all Canadians regardless of heritage is set out in the Constitution Act, however, it does separately specify and  recognize the indigenous people. In part one of the Canadian Charter of Rights, there are three points that are especially  important and applicable to every person in this country: One is“Freedom of conscience and religion”, the second is “freedom of thought, belief, opinion and expression” and the third is “freedom of association”. It means that you decide who you are culturally, and who you wish to ultimately associate with ----all within section # 27 the multicultural structure or nature of Canada. To be “Canadian” is to relate with the culture of choice. Relating could mean simply to identify oneself by relearning your mother tongue; or joining an organization and promoting it’s modern image and mandates. Of course, alternatively, anyone can simply be a “Canadian” and indulge in whatever modern Society has to offer regardless of one’s heritage or genealogical background.

Historically this idea of self determination was practised by Native people prior to European influence. But the spirit of our Canadian Charter of Rights, might be attributed to a man called Grey Owl. (Thanks to Pierre Trudeau). The well known story is that of   Archibald Stansfeld Belaney’s quest to be a North American Indian. Born and raised in England, his dream of being a part of Native culture is well documented. His  contribution to wildlife conservation is also well documented. Indigenous people, at the time, were amused by what they might have perceived as pretension–but accepted him wholeheartedly. The general population of Canada were not so understanding when he was identified as an Englishman—He had a natural  right to follow his own “belief, opinion, expression, conscience, religion and association”; those concepts cannot be faulted. It is the same natural right that has been adopted by the Canadian Government on behalf of it’s people.

Though a personal right to self identify is mandated in Canadian law some communities (and especially Government departments) are not required to accept membership from everyone.  Proof of identity soon becomes the main issue.  In relation to the Constitution Act 1982 and  Indian Act of 1985 indigenous people of Canada have been given additional rights. The problem of identity becomes an issue when administering, as a result of these rights, economic and social benefits and subsidies. It becomes necessary to limit the cost of these rights, though, “in answer to some claims about the identification problems, the Canadian Supreme Court (relating to Metis hunting rights in Canada) said that “it was not an insurmountable problem and that the difficulties must not be exaggerated in order to defeat Métis claims”....http://www.pstlaw.ca/resources/Powley%20summary-final.pdf  This landmark trial clarified somewhat the definition of Metis (Native ancestry) as a person who identifies as such and who’s ancestors originated from an historic Metis community. Proof of blood quantum was not required. The first communities of  Port Royal, New France and Trois Riviere were primarily “Metis”and Indian—though hotly contested by some French families and historians in Quebec. Their culture was decidedly different than their French counterpart in France. So much so that many English colonists later considered the new French culture inferior to that of France. Since blood quantum, in this trail, was removed as a requirement to be Metis, everyone in North America who can trace their lineage to these and other French communities can now rightfully identify as “Indian”. Even so, a much wider problem is that many people are altogether  excluded from eligibility and participation in local organizations for reasons that have little to do with community or family heritage.

The largest government supported Metis organization in Ontario (The Metis Nation of Ontario) claims it’s rights from within a modern mixed community that had it’s roots in villages, such as Drummond Island, Penetanguishene and Sault St. Marie that, historically, were involved in the fur trade. Their self proclaimed homeland is declared to be all lands west of Quebec, excluding the Arctic. As a result membership summarily excludes those people who’s origins were outside this “homeland” region.

Early New France villages were a mixture of European, Native and “mixed blood people” who spoke French and native languages.  Much later, after the decline of the fur trade, farming became an occupation that provided a subsistence life style. Hunting game was also necessary for everyone (no particular group) to sustain or supplement their livelihood. The idea that hunting and trapping was culturally exclusive to indigenous people is erroneous. Everyone hunted game and trapped at one time or another. But it is section 35 of the Constitution Act that categorized indigenous people as having, as first people, more rights than the general population.

Most “mixed blood people” are the descendants of native women and Frenchmen involved in various aspects of the fur trade. They grouped more visibly in the prairies and identified themselves as “Metis”–a “mixing”, reflecting European and Indian parentage. Since they were isolated from the larger population of people located in the east, a more distinctive French subculture immerged, especially in Manitoba and Saskatchewan. They spoke mostly French; though “Matisse”, a mixture of Cree and French, developed in some areas. People in Ontario and Quebec, who were also mixed blood, did not develop the same kind of subculture as in western Canada. Their communities were predominately French and considered as such. Some of today’s Metis organizations argue that the only true Metis person is one who’s family originated from an historic fur trade community. This has become part of their membership requirements.

The Indian Act section 5 (1) defines an Indian as one who is recorded in the Department’s Indian Register, as well as an individual who is recorded in a band member list– but not section 4 (1) an Inuit.  Entitlement to be classified and registered as an Indian does not apply under section 35 of the Constitution Act, only the Indian Act until, possibly,  today’s federal Court ruling.

So who are Indian and who are not? With this new ruling “Indians” are everyone with ancestry in a traditional Native/Mixed blood community. It is not certain that status will be given to all hybrids across the country.  Patrilineal descent was the only accepted official lineage in the past. With the passing of the Gender Rights Act January 31, 2011 descendants of Native women can now register for Indian status under the Indian Act. Does this mean that all descendants of aboriginal women can apply for registration as “Indian” with Aboriginal Affairs? The short answer is maybe (with the new court ruling). As it stands now even though there is a direct lineage from a distant grandmother, the government limits membership at two generations from the applicant. This effectively reduces qualified applicants to a few thousand people. Such accepted memberships are not even considered full status, but a reduced status that affects the status of their own descendants. See the following website for the full explanation: http://indigenousfoundations.arts.ubc.ca/home/government-policy/the-Indian-act/Indian-status.html  

Ideally, everyone who wishes to be recognized, should be recorded in the Department of Aboriginal Affairs “Register of Indians” without jumping through hoops to qualify. When the Reserve System was implemented in 1876 a deadline registration date was implemented. Many Indians did not register because they were in the back woods hunting, while many European men, who preferred the Indian way of life, registered. The problem of identity cannot be successfully made by any group or government without discrimination if the purpose is to exclude as many applicants as possible! 

The Reserve System within the Indian Act in 1876, imposed by the British government, is today being reviewed by both First Nation Bands and the Canadian government. Land ownership is the primary issue. There are many band members opposed to any changes . The controversy is heating up. Should bands maintain their lands in common? Is there a risk of losing unity, identity and values? These questions will undoubtedly be addressed in the future. One thing is certain, many band members will agree, that the present paternal system is economically and psychologically repressive.

To make it perfectly clear-----anyone in Canada can, from this date, legally declare and identify themselves as a First Nations person without reference to First Nations (Metis included) community rules or bylaws. However, officially in the act and in broad terms, Aboriginal Rights defined in Part 2, 35(2) “In The Constitution Act 1982, define “Aboriginal Peoples of Canada....as the Indian, Inuit and Métis peoples of Canada” (non status Indian and Metis now considered “Indian). Identifying oneself as First Nation, then asking to be a member of a First Nation community and finally, being accepted as a member are the first steps in the recognition process under the new ruling in the Canadian Constitution Act (1982). The general section #26 ensures that this law will not “deny the existence” of any other rights that may have been omitted. This is important to all First Nation people.  For example most of the eastern M’kmaq, have never signed land treaties or have ever been recognized as a native band, except in the case of a new landless band given recognition in Newfoundland in 2011.  Nor does it negate the rights of Canadian people who have recently discovered their First Nation heritage.

Canada’s, so called, crown land occupies 89% of it’s land mass. This is land that might in part still be negotiated for the homeland of landless First Nations people. Though land can be held by anyone, individual or organization, it is only a title of  “permission to hold land from the Crown”. This can be revoked at any time by an act of parliament! We do not have exclusive rights to own land under British common law.  How First Nations people distribute and hold land in common would be a matter of membership majority ruling. The implications of this should be warning enough to First Nations people in our population to join a community and participate. How this plays out will be up to everyone involved.

Discrimination that interferes with the Canadian Charter of Rights may be an offence under this statute. The Canadian Charter of Rights identifies all descendants and adoptees of Canadian indigenous people as First Nations. People on or off the reservation system regulated by the Indian Act are all included. First Nation people also include any sub groups such as “mixed blood” European and indigenous descendants who may identify themselves as Metis. But it is the responsibility of each individual Canadian to decide if compliance to any special community membership requirement is acceptable or not. There are no membership requirements to simply identify as a First Nation Canadian!

Alternatively, anyone who wishes to do so, can organize, plan and implement a First Nation community or a Metis community under the statutes regulating a non-profit or profit association or corporation. Membership requirements are the jurisdiction of it’s membership regulated by corporate statute but only if it is registered. Non registered associations are also legal in Canada!

It is now possible that the government of Canada may not interfere with the explicit definition concerning who is a First Nation person, except as defined or amended in the Indian Act for Reservation Communities. In this instance a First Nation person is a person who is written in the membership list of the band.

Confirmation was made by the provincial court in Ontario (Pawley case) that all Aboriginal people have harvesting rights, however, this has been modified to include only those who have traditionally hunted game and fished from their community. Also any member of that community is an aboriginal person without blood quantum. This ruling is positive but disqualifies many people who’s families have hunted game for generations outside an historical community.

Harvesting of wild game today without government regulations, considering our large population, would eventually devastate wild life and fish stocks. The court ruling allowing Metis harvesting rights without restriction must eventually come to an end. This may be implemented through a self regulated body of members. Some Metis people have voiced their opposition to unrestricted hunting and fishing, while others see an opportunity to finally assert their aboriginal rights. How the “Fish and Game Association”, mostly non native, will fit into this new paradigm is yet to be determined.

The Federal Court ruling redefining Metis and non status Indians as “Indian” entitled to the same rights as Status Indians is a huge step for all Aboriginal people in this country. It is important that this momentum is never allowed to slow or falter.

Update: Today Thursday April, 17 2014, The appeals court upheld the original ruling without further defining Metis identity. The Federal government must now negotiate or go to the Supreme Court of Canada.