At the Core of the Métis Decision, a Simple Clarification

Are Métis Indians?

This question intrigued me as a law student in the 1970s, especially after hearing the then-president of the Native Council of Canada, Tony Belcourt, assert that the federal government must acknowledge its responsibility for the Métis by virtue of s. 91(24) of the Constitution Act 1867, which provides that Ottawa has jurisdiction for “Indians and the lands reserved for the Indians”. In third year law, I wrote a paper, published in the Saskatchewan Law Review, 1978, concluding that yes, Métis are covered by the term “Indians” in 91(24).

The term “Indians” in the Contstitution Act 1867 encompasses all Aboriginal peoples, not just the First Nations. In 1939, the Supreme Court of Canada ruled that Inuit fell within its meaning and the federal court last week ruled that it also encompasses Métis and non-status Indians. It should also be noted that the Charlottetown Accord of 1992 included an amendment to 91(24) – agreed to by Ottawa, the provinces and Aboriginal peoples – that the term “Indians” included all “Aboriginal peoples” but that, unfortunately, did not materialize because the broader Accord was rejected in a national referendum.

Like the Inuit, the Métis are historically, culturally and politically distinct from Indians; that is recognized in the Constitution Act 1982, which identifies the Indians, Inuit and Métis as the Aboriginal peoples in Canada. The Métis National Council represents the Métis people and nation in Canada, our historical homeland spanning the three prairie provinces and extending into a part of Ontario, B.C. and the Northwest Territories.

Originally the offspring of First Nations women and European fur traders, our ancestors evolved over generations, marrying amongst themselves, into a distinct people and nation. Our provisional governments under Louis Riel in Manitoba and Saskatchewan shaped the history of western Canada.

The Métis National Council adopted citizenship criteria in 2002 based on self-identification, historic Métis ancestry, and acceptance by the historic Métis Nation community. In the Powley decision in 2003, the Supreme Court of Canada ruled that Métis were a full-fledged rights-bearing people in our own right and established a test of objectively verifiable criteria for membership in a Métis rights-bearing community. That test was tied to ancestral connection to, and acceptance by, historical Métis communities, thereby virtually mirroring our own citizenship criteria. In the 2011 Cunningham case, the Supreme Court acknowledged that the Métis emerged mainly in the Prairie provinces and recognized that the Métis Nation has the right to determine its own citizenship.

The Métis are distinct not only from Indians but also from people of mixed ancestry who cannot prove an ancestral connection to our historical Métis communities. The Daniels decision should not be interpreted as meaning that the Métis are now culturally Indians. The court’s ruling does not alter the fact and existence of the distinct culture and existence of the Métis Nation. It solely means, as with the Inuit who also remain distinctly Inuit, that it is the federal government which has the constitutional authority to engage with “all” Aboriginal peoples, even if both the Inuit and the Métis are excluded from the purview of the Indian Act.

Finally, s. 91(24) does not mean that the federal government has jurisdiction or power over the Métis Nation, rather, it simply means that the federal government has the jurisdictional mandate to deal with us on a nation-to-nation basis and to conclude a reconciliation of our rights, including our right to a land base and self-government.

Click here to view the article from The Globe And Mail

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