To fully understand, from a Native perspective, the signficance of those events --and to analyze them in terms of potential claims-- several rather subtle factors which contributed to the context in which those events took place, mu st be recognized. These factors involve an intricate, complex and often convolu ted interweaving of cultural, political, and legal components. The result of th ese components is obvious by virtue of its physcial existence --the dispossession of a people-- but the process which produced that result is anything but obvious. 

Racial Prejudice 

It would be tempting, for simplicity's sake, to argue that racial prejudice and bigotry against Native people was the major cause of their dispossession. There is certainly no lack of evidence for that position. From the earliest contact between Whites and Natives to the present day, there is an underlying current of assumed cultural superiority on the part of Whites toward Natives --and an assumption of a "natural" and moral superiority on the part of Native towards Whites. The simple fact of racial prejudice provides one simple answer for why things happened as they did, but does little to contribute to an explanations of how things happened as they did, and does abosolutely nothing toward increasing a mutual understanding of the events that give rise to the claims of Metis and Non-Status Indian peoples. 

Given that racial prejudice functions as a background or catalyst for many of the events in the preceding history, it becomes necessary to analyse and inter-relate the other cultural, political, and legal factors which interacted to significantly effect the events of that history. It is critically necessary to understand how Native claims were --and were not-- perceived historically, if present-day claims are to be understood. 

The Climate for Claims 

Initially, it was the European population who were making claims for rights to patches of land for trading posts, military outposts, and small settlements. From 1492 to the Proclamation of 1763 it was evident that Native people pos sessed most of the land in North America and settlers, in the names of the respective Kings and Queens, were claiming parcels of it. The Proclamation assumed s overeignty from a European perspective, although it technically admitted the fac t of Native possession of --and in fact reserved most of the continent in its description of lands reserved to Indians at the King's pleasure. Legally, the British Crown held title to the land, but culturally and politically --in practical terms-- the several Native populations still effectively contr olled most of the land. 

The colonial revolutions, by establishing two non-Native sovereign powers in North America, and subsequently undermining the growing Native Confederacie s in the resulting wars, shifted the balance of concentrated military powers to the American and British colonial governments. With the death of Tecumseth in 1812 and the subsequent demise of his, and other, proposals for a Native state, the last hopes for Native sovereignty in North America dwindled. The British Crown now held both the legal and political perogative in the colonies. 

During this period most of the Native population retained its cultural independence and a de facto possession of unsurrendered lands. In the wake of su ccessful Native military alliance with the British Crown, the climate for claims was relatively good. Anxious to avoid Indian unrest over the fact that most of the lands reserved to Indians under the Proclamation of 1763 had been surrender ed to the United States by the English Crown, colonial authorities were at least diplomatically responsive to Indian concerns. Land grants were arranged for Am erican Loyalist Indians, and the Jay Treaty exempted the Indian population from the restrictions of the American border. An annual distribution of presents to loyal Native allies was established to cement good relations. 

But as the anxieties of colonial wars faded, when the flow of settlers resumed, and the conflicts between colonial authorities and the Crown escalated, the climate for Native claims cooled. Our history has demonstrated that the pot ential for successful Native Claims declined in direct proportion to the necessi ty for having Native peoples as allies, and their capability as military opposition. The negative climate for claims grew in direct proportion to the need, from a colonial point of view, for settlement lands and access to valuable resources in unsurrendered Indian lands. 

A third factor in increasing the negative attitude toward claims, was the decline of Imperial interest in colonial affairs in general, and Indian affairs in particular. Although Imperial authority was not formally transferred to th e colonies until 1860, there was a steady shifting of responsibility for the man agement of Indian Affairs to colonial authorities from 1830 onwards. Increasing ly, the Department of Indian Affairs was involved in the formulation and execution of colonial rather than Imperial claims policy. And, as Imperial control dec lined, so did Imperial funding for the Department, and so did the Department's interest in hearing potentially expensive Native claims. 

From its inception in 1755, the Department of Indian Affairs has been a major channel --and for much of history the only channel-- for Native claims. But, from a Native perspective, the Department has functioned in a "fox-in-the-ch icken-coop" syndrome. Historically, the adminstration of Indian Affairs has been consistently assigned to that area of goverment most likely to benefit from the exploitation of Indians and Indian lands. A chronolgy of the evolution of the Department makes this fact self-evident: 
 

1755 -Established as a central military authority 

1860 -Transfer from Imperial authority to the civil authority of the Commissioner of Crown Land in the Province of Canada. 

1867 -Transfer to the Secretary of State (Macdonald) for the Dominion of Canada 

1873 -Transfer to the Department of the Interior (Indian Lands Branch) 

1936 -Transfer to Department of Mines and Resources 

1949 -Transfer to Department of Citizenship and Immigration 

1965 -Transfer to the Department of Northern Affairs and National Resources 

1966 -Presently established as Department of Indian Affairs and Northern Development 

This sequence demonstrates that the "chickens" were transferred to the care of the government "fox" most in need of control of Indians and Indian lands. When ths sequence is aligned with the Indian Act amendments and other overt policies of promoting the extinction of the special status of Native people, the potential for success of Native claims throughout most of our history was, to put it mildly, bleak. When these factors are combined, on a more or less national scale, with attitudes that were specific to Ontario, the climate for claims is reduced to absolute zero. 

By the turn of the century, Indian Affairs policy, as our history has demonstrated, had successfully driven a legislative wedge between two segments of the Native population --so-called full-blooded Indians and so-called Halfbreeds. The effect of this wedge varied in different parts of the country. To the west and north of Ontario, Halfbreed Commissions were busy extinguishing the "Indian title" of Halfbreeds with scrip, as a parallel process to treaty-making with the Indians. 

Within the borders of Ontario, a very different scenario was developing. With the signing of Treaty 9 in 1905-06, the mop-up operations of the Williams's Treaties in 1923, (both of which give rise to potential claims today), and the Adhesion to Treaty 9 in 1929, Indian title in Ontario had, from a government perspective, been successfully extinguished. From that same perspective, there was no possibility of future comprehensive claims, and specific claims were seen as adminstrative details that should be left to the Department of Indian Affairs --an attitude that still exists today. Halfbreed claims in Moose Factory, and Fort Frances, were simply ignored, and of the 1,598 Native claims to status under the Robinson Treaties, only three were recommended for acceptance.5

From 1927 to 1951 it was illegal, under the Indian Act, for even Status Indians to raise money for Indian claims, and the Department actively persecuted Indian leaders who raised claims issues. While Domion legislation promoted the exclusion of Halfbreeds from recognition as Indians (adamantly refusing to consider their status as separate Indigenous people), and was literally creating the Non-Status Indian population, Ontario was concentrating on generating revenues from the lands and resources of the Province. Southern Ontario and American business interests voraciously expanded their timber, mining, and hydro-electric resource operations into lands on which Metis and Non-Status Indian peoples had, technically, become squatters. Having outmaneouvred the Federal government itself for control on surrendered Indian lands, and actually arranged many of the surrenders, Provincial impatience with Native claims might well be expected.

Having been legally dominated by virtue of the Indian Act, and politically and economically repressed by virtue of exclusion of Natives from the political and resource development process, the Native culture itself became an inevitable target of government policy. The ad hoc programs of "civilizing" and "Christianizing" the Natives carried out in the previous century were hardened into legislation designed to disrupt tribal organization and literally outlaw Indian cultural activities. The combined effect of these cultural, political, and legal factors --particularly in Ontario-- was to create, for all practical purposes, an "invisible" Native population for whom claims to justice were an empty dream. 

The Invisible Natives 

The resurgence of Native claims in general, and Metis and Non-Status Indians in particular, in the last decade is due --not only to the emergence of more liberal and humanistic attitude on the part of governments-- but to an awakening within the Native population itself of a need to re-assert their identity in the context of the larger society. Metis and Non-Status Indians had, in the context of the larger society, been rendered politically, culturally, and legally invisible for decades. To understand the re-appearance, in a public sense, of the "Invisible Natives" and their claims, it is critical to understand how we became invisible in the first place.

The process by which today's Non-Status Indians became legally invisible is comparatively straighforward. By deliberate or inadvertant omission from treaty, and by exclusion from Indian Status by virtue of the Indian Act and its maze of amendments, thousands of Native people were legally dispossessed of their aboriginal birthright. The immediate effect of legal invisibility varied enormously from time to time and place to place. The further back in time, and the more remote the place, the less the immediate effect was likely to be evident, in terms of the life-style of a given individual. Moving off a reserve, or receiving an allotment of land on a reserve, and giving up four dollars a year in treaty money hardly changed the way a man housed his family, hunted for food, or related to his friends.

But, as settlement expanded and regulations were increasingly enforced which happened at different times in different places-- the effects of legal invisibility as an Indian became more ominous. Cut off from what little service and protection the government offered its Indian wards by virtue of his loss of legal status as an Indian, shunted aside by outside resources-exploiting interests, and politically voiceless, the Non-Status Indian was relegated to the backwashes of both the White and Native communities.

With the passing of generations, the effect of legal invisibility outside predominantly Native communities, was to enforce assimilation into towns and cities, or resulted in confinement to poverty ghettos. Many who stayed near their original reserves were technically "outlaws" when they hunted or fished on lands their families had used for generations. 

Although, technically, loss of status entailed only the surrender of treaty rights and band association, the cultural effect of that technicality, over generations, was to divorce the Non-Status Indian from his cultural past, and erode his sense of identity as a Native person.

Those Non-Status Indians who "successfully" assimilated or otherwise developed successful survival modes in relation to either Native or non-Native society, could be said to have made the best of a bad bargain in the first half of this century. It is not difficult to generate response to the plight of the Non-Status Indians of the poverty ghetto, but this response is usually channelled through welfare and economic development programs and circumvents the real basis for claims of these people.

It is more difficult for non-Natives to grasp what economically successful Native people have lost, and on what basis they could make any kind of claim. It was not until the Red Power movement of the 1960's that the cultural and political components of the Non-Status claims surfaced into public awareness, and well into the 70's before these claims were politically differentiated, in Ontario, from those of Status Indians. What these people have lost is recognition of the Native and indigenous quality of their heritage, and the process of developing and re-asserting their identity as a Native people, in public sense, has only recently become a motivational factor in their lives.

Ontario's Metis population, on the other hand, has always been invisible. Although Federal laws and Provincial policies have occasionally, and reluctantly, admitted the "Indian title" Halfbreeds were said to possess by virtue of their "Indian blood", they have studiously avoided overt recognition of mixed blood peoples as having an independent status as Native and indigenous people. Even this limited recognition was applied only to those Halfbreeds who lived in those parts of Ontario --Keewatin and the Northwest Territories-- which were outside Ontario's borders for some part of its history.

As has been demonstrated, laws and official policies towards Metis/Halfbreed people effectively created a revolving door which only recognized the "Indian title" of some Halfbreeds long enough to extinguish it by treaty as "Indians"--thereby avoiding legal recongition as Metis-- then subsequently stripping them of Indian status because they were halfbreeds. This process was further aggravated by the fact that many Metis and Halfbreeds were omitted from treaty because they were culturally, as well as legally, invisible to the dominant society. 

Our history has demonstrated that mixed blood peoples were the majority of the Non-Indian population for considerable periods of time in most frontier communities. Unquestionably a Native indigenous people, in the sense that we have no other country of origin, we evolved a variety of life-styles in a variety of contexts. This variety of adaptations to local conditions was both a great strength --in terms of individual survival-- and a serious flaw --in terms of potential for cohesive identification for political and legal purposes. 

By 1800, mixed bloods has permeated every level of social life and frontier institutions so successfully that the majority had become culturally invisible to Indian and White alike. By 1850 it had become impossible to biologically distinguish between Indians and mixed bloods, on the one hand, and mixed bloods and Whites on the other. Those mixed bloods born into matriarchal tribal groups tended to be absorbed into the Indian band (and were more likely to survive White disease); those born into patriarchal groups tended to be excluded or set apart from the band in distinct clans; those born in either group in remote areas lived as Indians; those of either group born near settlements were often raised as Whites. 

From the point of view of the practical expediencies of law and adminstration, it became necessary for the dominant culture to adopt life-style criteria, rather than biological ones, to determine the Native status of an individual. None of these criteria can change the simple fact that an individual --however he might be identified "officially"-- is a Native and indigenous person. The fact that one individual could be designated by ten different terms in a single lifetime, does not alter the reality of indigenous status. 

The two-thirds of mixed bloods who could be identified as Indians or Whites, assimilated into their respective groups for most cultural and political purposes. The remaining third tended to function independently of either group and developed their own cultural, political, and --in at least one case,-- legal institutions.

As the most highly visible, in sociological and poltical terms, it was this third group that proved the most problematical to colonial authorities. When organized and co-operative --as they were in the Sault area under Langlade-- they were useful as allies. When organized and militant --as they were under Grant and Riel in Red River, and at Mica Bay-- their defacto control forced negotiated solutions. But individually, or in small peaceful communities, they were entirely vulnerable to the political and legal machinations of those eager to exploit the last frontiers. 

It was among the Tipe Yim Isowak --'those nobody owns' or 'the people that own themselves'-- that the more subtle cultural factors come into play. Expressing the Native cultural traits of adaptivity and co-operative passivity, they were easy prey for the domineering and agressive colonists. Protesting chiefly by non-participation, they were more likely to move on when disruptive influences made life difficult. It was only when there was no place left to move that these people woujld make belated attempts to assert their rights. And --certainly by 1885 in Ontario-- the middle ground of identifications as Metis had long been eliminated, leaving only the alternatives of claiming as Indians or a White settlers. 

In circumstances where Metis could not identify, from the point of view of self-perception, as Indian or White, the individual became legally, culturally, and politically invisible in his own homeland, and virtually an outlaw in the eyes of colonial and post-confederation governments. Joined by his Non-Status brothers --who were rendered invisible by enfranchisement or exclusion and omission from treaty-- the two groups shared a common problem, that of dispossession in their own homeland. Divorced from Federalresponsibility under the BNA Act as Indian by definitional and enfranchisement clauses of the Indian Act, and subject to Provincial laws and policies designed to exploit land and resources at the expense of Native people, the Metis and Non-Status Indians of Ontario who could not, or would not, assimilate into Indian and White cultures became a stateless people in the land of their fathers. 

The Modern Context for Claims

The historic success of government policy in suppressing Native claims and the attempts of a variety of aboriginal associations to raise claims issues, has been well documented elsewhere. In the post World War II era, the liberalization of government attitudes towards Native people was reinforced by the evolution of the Human Rights Movement and the decolonialization of the Commonwealth. Abortive attempts at re-vamping Indian Affairs policy in the lat 40's and 50's opened the door, for the first time in more than a century, to Native participation in that process. That participation exposed the enormous gap that existed between Native and government perceptions of the issues and claims involved, and their respective proposals for their resolution.

Although the context for Status Indian claims markedly improved throughthe 60's, it was not until 1970 that two events co-incided to foster recption of Metis and Non-Status Indian Claims. The first of these events was the emergence of Metis and Non-Status organizations as a distinct entity apart from Status organizations. The second was a nearly successful claim by the Nishga of British Columbia in the Calder case. The creation of the Native Council of Canada, shortly followd by the the founding of the Ontario Metis and Non-Status Indian Association, provided, for the first time in Ontario, a voice specifically designed to express the needs and claims of Metis and Non-Status Indian peoples. The Calder case jolted the government into an awareness that very real claims could be made by Native people and that research should be done, by the Native organizations themselves, to determine what those claims might be.

The Federal government began to develop a claIms policy which would, on the one hand appear to respond to Native demands and, on the other hand, extinguish Native claims in the north and northwest to clear the way for resource development. Lacking the advantage of historic hindsight, it is impossible to put the complex interaction of both government and Native claims policies of the lastdecade into a consclusive perspective. But, by concentrating on Ontario issues, as they apply to Metis and Non-Status Indians, the field can be narrowed sufficiently to develop a workable frame of reference. 

The Federal Native Claims Policy paper of 1973 commits the Federal government to "recognition of lawful obligations to Indian people." Those obligation are broken down into two categories of "Specific"\and "Comprehensive" claims which the government, in principle agreed to negotiate. Although the term Indian people" is not defined, the word "Indian" is used in the context of specific claims related to the interpretation of Treaties and government administration of Indian lands and other assets under the Indian Act. The word "Indian" is replaced by the word "native" in relation to comprehensive claims which recognizesthat non-Native occupation of lands traditionally used by Native people, had not taken Native "interest" into account. Such claims, however, appear to be confined to Northern Quebec, the Yukon, British Columbia, and the Northwest Territories 

Steering Group Conclusions

This policy has been "under review" since 1973, but was re-issued in 1979 with no substantive changes in text. But, in the interim, the Federal cabinet asked the Cabinet committee on Social Policy to consider "federal policy toward native people in general and towards Non-Status Indians and Metis in particular." A Steering Group reached the following conclusions in relation to Metis and Non-Status Indian peoples:
 

"1 -THE SPECIAL PROBLEMS AND NEEDS OF CLASSES OF NATIVE PEOPLE ARE SIMILAR (RECOGNITION, CULTURAL SECURITY, SOCIO-ECONOMIC NEEDS, PARTICIPATION, SELF-DETERMINATION);

5 -THE INDIAN ACT WHICH DEFINES THE INDIAN PEOPLE TO WHOM THE FEDERAL GOVERNMENT ADDRESSES SPECIAL PROGRAMS IS IN SOME WAYS ARBITRARY, ANACHRONISTIC AND HARSH IN EXCLUDING CERTAIN CLASSES OF INDIVIDUALS: 

8 -THE NON-STATUS INDIANS AND METIS SUFFER SEVERE DISADVANTAGES SUCH THAT PROVINCIAL ACTIVITIES ALONE ARE UNLIKELY TO SIGNFICANTLY AMELIORATE THEIR SITUATION IN THE NEAR FUTURE:

9 -THE NON-STATUS INDIANS AND METIS MAY HAVE LEGAL CLAIMS AGAINST THE FEDERAL GOVERNMENT AND SOME PROVINCES AND MIGHT BE TESTED IN THE COURTS AT ANY TIME: 

10 -SINCE MEETING WITH THE CABINET IN APRIL 1975, METIS AND NON-STATUS INDIAN LEADERS HAVE HAD NO GOVERNMENT RESPONSE AND THERE IS AN URGENT NEED FOR ACTION, ESPECIALLY IN RELATION TO THE FUNDING OF RESEARCH AND LEGAL CLAIMS:

11 -THE SYSTEM OF CONSULTATION WITH NATIVE ASSOCIATIONS BEING CARRIED OUT BY THE FEDERAL GOVERNMENT IS DESIRABLE, COULD BE USEFULLY EXTENDED (TO INCLUDE IN PARTICULAR CONSULTATION ON THE POLITICAL PLANE WITH THE NATIVE COUNCIL OF CANADA) AND SHOULD BE AT THE CENTER OF ANY NATIVE POLICY DEVELOPMENT WITH THE FEDERAL GOVERNMENT REFRAINING FROM UNILATERALLY SETTING POLICY GOALS.

The recommendations of the Steering Group included: funding of mutually agreeable research into the claims of Metis and Non-Status Indian organizations; the recognition and affirmation of the cultural and historical contribution of aboriginal people to the evolution of Canada; the encouragement of Native efforts at self-determination; the retention of access to ancestral territory; and the recognition of Native concepts of community priotities.

The most significant of the objectives recommended by the Steering Group were:
 

02 -TO ESTABLISH A SET OF CONSULTATIVE FRAMEWORKS...ADEQUATE TO PERMIT THE JUST RESOLUTION OF IMPORTANT QUESTIONS AFFECTING THE LIVES OF NATIVE PEOPLE, SUCH AS

A) REVISION OF THE INDIAN ACT

B) PROGRAM DESIGN, ORIENTATION AND MANAGMENT INCLUDING RESOURCE ALLOCATION 

C) SPECIFIC CLAIMS, WHETHER BY STATUS PEOPLE OR BY OTHER NATIVE PEOPLE, WITH RESPECT TO THE TREATIES AND THE ADMINISTRATION OF THE INDIAN ACT AND OTHER FEDERAL STATUTES.

03 -TO SETTLE OUTSTANDING VALID CLAIMS, BASED ON ABORIGINAL TITLE BY NEGOTIATION... 

From a Metis and Non-Status Indian perspective, the significant strategies recommended by the Steering Group included: assurance to Status Indian leaders that their position will not be diminished by Non-Status claims; that settlement of specific Status claims will allow for future Non-Status specific claims; explore Federal/Provincial mechanisms to assist Metis and Non-Status Indian people in need; and
 

05 -ACCEPT PRIMA FACIE EVIDENCE THAT THERE EXISTS A CLASS OF NATIVE PEOPLE OUTSIDE THE INDIAN ACT THAT MAY HAVE JUSTIFIABLE CLAIMS TO "ABORIGINAL TITLE", WITHOUT IPSO FACTO ACCEPTING THAT THAT CLASS CAN BE IDENTIFIED OR THAT THEIR CLAIMS CAN, IN GENERAL BE VALIDATED.

S6 -OFFER TO DISCUSS ON THE POLITICAL PLANE AT THE NATIONAL LEVEL THE CLAIMS TO ABORIGINAL TITLE OF NON-STATUS INDIAN PEOPLE... 

S7 -ACKNOWLEDGE THAT THE TERM "INDIAN" UNDER THE BNA ACT EXTENDS TO INHERITORS OF ABORIGINAL TITLE WHETHER ENTITLED TO BE REGISTERED UNDER THE ACT, OR NOT... 

The extent to which these recommendations and strategies have been carried into effective policy is not yet publicly apparent. Certainly consultative processes with Metis and Non-Status Indian Associations have taken place, and research funding has been made available. But the tone of a subsequent paper on Native Right Policy issues in May 1978, does not reflect the liberal tone of the recommendations of the Steering Group.

The eleven page description of Federal Claims Policy from the Office of Native claims doesn't even use the words "Metis" or "Non-Status Indian" although the terms "Indian band" and "Indian Association" could be interpreted to cover these groups. The paper also states that: 

'WHERE A CLAIM HAS A BASIS IN LAW, THE GOVERNMENT IS PREPARED TO NEGOTIATE A JUST AND EQUITABLE SETTLEMENT."