The Re-Birth of the Metis Nation 

The events of Red River and Batoche are more properly the story of the Native people of Manitoba and Saskatchewan and have already been detailed in history texts. But to the extent that those events affected Federal attitudes and Ontario Provincial policies towards mixed bloods and to the extent they are misrepresented in Canadian history, awareness of the Metis resistances are critical to a thorough understanding of the subsequent dispossessions of Ontario Native peoples from their aboriginal birthright.

Like their predecessors in Sault Ste. Marie, the Metis of Red River tried every avenue of negotiation open to them before they picked up their guns. They negotiated with the Hudson's Bay company, the Council of Assiniboia, the government of Canada, and the Crown itself in attempts to establish their rights in relation to the new Dominion. Contrary to the proponents of the "frontier thesis" who claimed the Metis were a "static" society being overwhelmed by "progress" and "civilization", the Metis were proposing co-operative and creative solution to their dilemma that demonstrated a thorough and intelligent grasp of the issues. 

That those same proposals could rob the empire builders from Ontario of their dream of wealth and glory, and would establish a Native presence in Confederation, was reason enough for Sir John A. Macdonald to order that: 
 

"THESE MISERABLE HAFLBREEDS, SHOULD THEY NOT DISBAND, 
MUST BE PUT DOWN." 

The deft statesmanship of Louis Riel (Jr.) in creating a defacto Provisional government in the vacuum created by the delays in the transfer of Hudson's Bay Company lands to the Dominion was far from "primitive" or "static." The Metis Bill of Rights --a watered down version of which was subsequently legislated as the Manitoba Act-- was a century ahead of its time. The ad hoc diplomacy of balancing Indians, French and English mixed bloods, Fenians and Americans --to say nothing of the Crown itself-- against the strength of the new Dominion long enough to wrench legislated recognition of Metis land claims from the startled empire builders, was hardly the work of "miserable halfbreeds." 

The Metis Nation had affirmed its rights --and earned the wrath of Orange Ontario. The initial victory in the war of the west went to the Metis, but the war was far from over. The Metis resistance had clearly caught the Dominion by suprise. Even worse, from Ontario's point of view, it had clearly demonstrated that Federal perogatives in relation to "Indians and Indian Lands" could heavily curtail Ontario's westward expansion. The creation of the "postage stamp" province of Manitoba was itself challenged and required Imperial confirmat ion. The Dominion and Ontario were becoming competitors in the war for the west and the competition was soon to be at the expense of the Native populations --for it was their lands that were to be the final prize. 

Scrip and Ontario Halfbreeds

The blatant maladminstration and exploitation of the 1,400,000 acres assigned to the Metis under the Manitoba Act have been detailed elsewhere1 and are, again, more properly dealt with by the Provincial Associations involved. But land scrip --the mechanism by which Metis lands were to be distributed to those entitled to receive them-- was also to have its impact on Ontario mixed blood residents. 

The first negative effects on Native people of the arbitrary creation of Ontario's borders was experienced by the Halfbreeds of Ontario. For generations they had lived a lifestyle and maintained a relationship to the land comparable, if not identical, to that of their brothers in what was now Manitoba. At first it appeared the Federal Government had, at last, created a mechanism --scrip- - for the extinguishment of non-Indian aboriginal title which could be applied to all mixed bloods. Instead, it became the first major Native issue on which the Dominion and Provincial policy was to diverge and, once again, leave mixed bloods in a legislative no-man's land in their own country. 

The Federal application of scrip as a means of extinguishing mixed blood title was expanded to the Northwest Territories and the District of Keewatin -- much of which is inside the present-day borders of Ontario-- but it was refused within the borders of Ontario, itself, and delayed for years if the border could not be determined. Although scrip was assigned only outside Ontario, that did not prevent future treaty negotiators from dangling the scrip carrot to keep mixed bloods out of treaty. On at least one accasion, in Moose Factory, a written promise of scrip by a Provincial authority has been identified an d is the basis for a potential claim. 

The Halfbreed Adhesion to Treaty Three

Alerted by the Manitoba Riel uprising to the very real danger of militant Native response to the westward expansion of the Dominion, the Department of Indian Affairs began negotiating the Northwest Angle Treaty, now know as Treaty Three. Agents had already been active to prevent the Haflbreeds of Rainy Lake from joining Riel. and to employ them in their traditional role as treaty negotiators. 

After repeated failures, the Treaty was finally signed in 1873 with a series of adhesions of other bands over the next two years including, for the first and last time, a treaty signed specifically with self-identifying Halfbreeds. The story and signficance of the Halfbreed Adhesion to Treaty Three has already been the subject of several major reports, and could easily be a volume in itself. 

The simple facts are that a specific group of Halfbreeds with their own elected Chief approached the Commissioners to enter treaty as a separate band. In 1875, a specific document entitled "The Halfbreed Adhesion to Treaty Three" was signed and arrangements made to survey reserves. 

Two reserves, clearly designated on maps as Halfbreed Reserves were, in fact, surveyed. The Halfbreed band occupied the reserves and petitioned for satisfaction of the remaining treaty terms. Indian affairs officials then refused to recognize them as Halfbreeds or a distinct band and the Halfbreeds refused to accept payment as Indians. 

In 1967, fully 92 years after the Adhesion, the Half breed Reserves were officially amalgamated into the Couchiching Reserve. The intricacies of the events of those 92 years defy simple description, or even explanation, but the results of those events from the perspective of historical hindsight are only too clear. The Halfbfreeds of Rainy River had achieved formal recognition, as Halfbreeds and as Metis, of their status as a Native and indigenous people who possessed aboriginal title and rights that could only be surrendered by a negotiated treaty process with the Government of the Dominion, independent of a parallel process with Indian peoples. That recognition was clearly reversed by subsequent, and obviously arbitrary policy, and unilaterally subverted by administrative fiat, resulting in perhaps the most significant basis for potential claim by Metis in Ontario. It could hardly be a coincidence that the historic claims were dropped the year Louis Riel was hanged.

There were three major factors evolving in the last decades of the 19th century that were to crush Metis hopes of recognition of their aboriginal birthright. The first was the defeat of the Metis in Manitoba and Saskatchewan; the second was the passage of the first Indian Act in 1876; and the third was the growing power struggle between the Dominion and Ontario for control of western lands. 

With the beachhead of Manitoba established, the Hudson's Bay Company dispossessed of Ruperts Land, and at least a "communication" to the northwest guaranteed by Treaty Three, the Dominion turned its attention to consolidating its control of Native populations and Indian lands. Two sporadic attempts to legislate Indian affairs following Confederation had accomplished several things: the transfer of the Department of Indian Affairs to the Scretary of State --thus changing the title of the fox in the chicken coop; established patrilineality as an exclusive determinant for Indian status; fixed a blood quantum rule for status eligibility; and provided conditions for enfranchisement.
 

The Indian Act of 1876

In the Indian Act of 1876, which was intended to consolidate previous legislation and policy, blood quantum criteria were dropped, and a specific section relating to Halbreeds was adopted along with the 1851 criteria for defining Indians. According to the Act an Indian was: 
 

FIRST: ANY MALE OF INDIAN BLOOD REPUTED TO BELONG TO A PARTICULAR BAND 

SECOND: ANY CHILD OF SUCH PERSON

THIRD: ANY WOMAN WHO IS LAWFULLY MARRIED TO SUCH A PERSON 

The Act also excluded, largely at the discretion of the Superintendant General, six classes of Native people: 
 

1) Indian women married to non-Indians (including non-registered Indians); 

2) illegitimate children; 

3) any Indian residing in a foreign country (including the United States) for more than five years; 

4) any enfranchised Indian; 

5) any Halfbreed in Manitoba who had participated in scrip distribution; 

6) all Halfbreed heads of families and their descendants. 

Coming, as it did, on the heels of the Halfbreed Adhesion to Treaty Three, it is little wonder the Department had to surreptitiously reverse its policy in signing the Treaty. Although the Act did make allowances for "special circumstances" in the application of the Halfbreed clauses, the express policy of the Indian Affairs Branch was only too clear. In his report of Superintendencies in 1876, J.A.N. Provencher, who had already tasted Metis militancy, concisely stated government policy in relation to Metis and Halfbreed claims. 
 

"IF THE NEW CLAIMS I NOW MENTION WERE ENTERTAINED THE RESULT WOULD BE THE SPRINGING UP OF A NEW CLASS OF INHABITANTS, PLACED BETWEEN THE WHITES AND THE INDIANS --HAVING, IN A LEGAL AND A POLITICAL POINT OF VIEW, SPECIAL AND SEPARATE RIGHTS: OR AT LEAST, THIS IS THE INTERPRETATION WHICH WILL CERTAINLY BE GIVEN TO THAT MEASURE: AND THIS ACCEPTANCE OF THEIR RIGHTS, FAR FROM BEING CONSIDERED AS A FINAL DECISION, WILL ONLY BE A STARTING POINT FOR THEM TO PREFER CLAIMS AS ISSUE OF THE FIRST WHITE SETTLERS OF THIS COUNTRY." 

This statement, which precisely circumscribes the claims of Metis people, even today --(if the words White Settlers were changed to First Nations)-- makes it perfectly evident the government was fully aware of the impilcations of its action and was deliberately avoiding the recognition of separate rights for Metis while appearing to compensate some with scrip or by accepting others into treaty as Indians. These evasive policies were soon to erode Metis rights even further as a result of the bitter conflict that was building between the Dominion and the Government of Ontario over ownership of Crown lands, and responsibility for the Native populations who occupied them. 

The 1876 Act fixed the dfinition of Indian for almost a century. But the sections of the Act relating to Halfbreeds, enfranchisement, and tribaol membershiup were to undergo a toruous evolution in the next century, under the twin pressures of political and economic expediency. The range and variety of subsequent amendments defy classification, but the result was phenominally consistent in terms of reducing the "charter" Native group for whom the Dominion could be held responsible.

The Indian Act was amended in 1879 to permit the withdrawl of Halfbreeds from Treaty upon repayment of any annuities they might have received, When response was slow, the Act was again amended in 1884 to permit discharge from Treaty without repayment. When more than 1400 responded --chiefly in the northwes t where scrip was being issued to Halfbreeds-- an 1888 amendment added that the permission of the Department was required for withdrawl. Not only Halfbreeds, but "full-blooded" Indians responded to the carrot of scrip, although many applied to return to treaty when the scrip program failed. 

The problem of extinguishing Halfbreed title in the northwest was a major factor, both in Indian Act amendments, and in a flood of Orders-in-Council of the period, but a potentially more serious pressure had developed. Ontario was demanding confirmation of its western and northern borders, and was claiming more teritory than the Dominion was prepared to allow. A major rift was developing between the Dominion and Province of Ontario as to which government held title to Indian lands once they were surrendered. The disputes were submitted to a series of court cases and arbitrations which were to have disasterous effects on Native rights. 

The intricate maze of legalities created by the machinations of the Dominion and Provincial governments between 1874 and 1924 can only be simplified by concentrating on their effect of Halfbreeds and Non-Status Indians. Although these two groups were rarely mentioned specifically in the formal docmentation of the legal disputes, they were the subject of a hidden agenda behind the scenes of the "official" negotiations. 

The basic issue, apart from the territorial border disputes, was to determine who owned surrendered Indian lands in right of the Crown. Under the BNA ACT of 1867, the Province owned its lands and resources, but --under the same Act-- the Domininion had jurisdiction over Indians and lands reserved for Indians. When the Privy council finally settled the St. Catherine's Milling case by de termining that Ontario owned surrendered Indian lands, they also stated that Ont ario should pay treaty annuities to Indians involved in those lands, and re-pay the Dominion for expenses incurred from the Treaty Three and Robinson Treaties since 1867. 

Ontario, predictably, disagreed. On the surface the dispute seems little more than an exercise in bookeeping. But the policies and legislation that were subsequently generated by the long series of disputes created a squeeze play that all but eliminated the already tenuous position of the Halfbreed and Non-Status Indian peoples in Ontario. 

Victorious in establishing Crown title in right of the Province to surrendered Indian lands, but fearful of having to pay the annuities, Ontario hired a magistrate, E.B. Borron, to investigate and propose a position for the Province. Having confirmed that most of the Treaty Three area (and therefore the Halfbreed Adhesion) was within the boundaries of Ontario, and having demanded, and got, the right to concur in the estashing and confirming of reservation boundaries unless "good reason" to do otherwise was discovered, Ontario simply witheld its approval for reserves. This not only jeprodized Indian "title" to reserve territory, but successfully prevented the Dominion government from issuing coveted licenses to timber and mining companies 

Borron had no trouble, from Ontario's perspective, in establishing the " good reasons" he needed. He reported that Treaty Three was premature and not in the interests of the Province; that its terms were too generous; that the Domin ion lists included American Indians; and, most significantly, that there were a large number of Halfbreeds living on the reserves and drawing annuities. Despite his admission that: 
 

'THE GREATEST DIFFICULTY IN PURGING THE LISTS IS HOW TO DEAL 
WITH THE HALFBREEDS." 

"THEY HAVE NO GOOD CLAIM UNDER ANY CIRCUMSTANCES... AND I AM, 
IN ACCORDANCE WITH THIS VIEW, LEAVING ALL HALFBREEDS OUT OF MY LIST." 

Having successfully rationalized striking 1040 Halfbreeds and American Indians from the Treaty Three lists, alone, he then turned his attention to the Robinson Treaties. Lacking the rationale of prematurity and generosity, he conce ntrated his attack on the Halfbreeds and American Indians. He proposed the stri king 2894 persons from the Robinson lists, including 1710 Halfbreeds. 

Since the annuities dispute was finally settled in favour of Ontario in both Treaty Three and Robinson Treaties, Borron's work was not translated directly into specific policy. It is however, indicative of the impact of those disputes on the attitudes of government toward the aboriginal rights and entitlements of Indians and Halfbreeds. Parallel and subsequent Dominion policy and legis lation was, intentionally or not, to accomplish the ends Borron proposed. 

By the end of the dispute in 1924, Ontario had obviously won the struggle for control of "Indian" crown land within the Province. By establishing the necessity for, and witholding concurrence to, reserve boundaries and participatio n in future treaties, Provincial authorities were able to effectively manipulate Indian Affairs policy and administration to support Provincial ends. Hindsight makes it evident these policies were totally destructive of the aboriginal birthright of Metis and Non-Status Indians in the Province. 

The Shrinking Responsibility

The squeeze play on Native rights created by the dispute between the Dominion and the Province between 1874 and 1924 was directly reflected in Federal l egislation for the same period. As arbitrator's decisions increasingly strength ened Ontario's position, the Dominion passed legislation --and the Indian Affairs Department adopted policies-- which permitted them to respond to Ontario"s demands very much at the expense of the Native population. This lock-step pattern succeeded, over the 50-year period, in depriving treaty Indians of any semblance of control over treaty lands, literally created Ontario's Non-Status population, and banished Metis claims into a legislative limbo. 

Shaken by Ontario's successful invasion of the Dominion's so-called "Indian lands" the Dominion safeguarded itself against a repetition of those events in the western provinces, and legislated itself the authority to dispose of In dian lands at will. Alerted by Borron's reports and the arbitrator's decisions to the vulnerability of the status of treaty Halfbreeds and others, Indian Affairs generated a series of policies and legislation designed to further shrink th e numbers of Native people for whom they could legally be responsible. 

Unwilling, or unable to further change or shrink the definition of Indian, the Department shifted its emphasis to expanding its powers of enfranchisemen t and attacking the ability of Native people to inherit their status under the I ndian Act. By unilaterally shrinking the group elligible for annuity payments, adopting compulsory enfranchisement policies, and developing an administrative policy of "Non-Transmissable Title," the Department stripped hundreds of Native families of their birthright, under the guise of "civilization" and assimilation programs. 

As early as 1877, even the New York Times had noted a change in the Dominion's attitude towards Metis/Halfbreeds. By the turn of the century, that attitude had hardened --at least on the part of the Dominion-- to an adamant resistance to any change that would broaden the definition of Indian to include Halfbreeds. The 1898 arbitrators of the Provincial/Dominion disputes rulled that all names on the annuities lists prior to Confederation should be paid, and that persons entitled to Robinson annuities were: 
 

"(a) ANY MEMBER OF ANY TRIBE OR BAND WHO WERE PARTNERS TO 
THE TREATY, AND ANY LAWFUL DESCENDANT OF INDIAN BLOOD OF 
ANY SUCH TRIBE OR BAND. 

(b) ANY PERSON INTERMARRIED WITH ANY SUCH MEMBER OF ANY 
SUCH TRIBE OR BAND, AND ANY LAWFUL DESCENDANT OF INDIAN 
BLOOD OF ANY PERSON SO INTERMARRIED WITH ANY SUCH MEMBER 
OF ANY SUCH TRIBE OR BAND. 

(c) ANY PERSON ADOPTED AND ACKNOWLEGED PRIOR TO 1893 BY ANY 
SUCH TRIBE OR BAND, AND ANY LAWFUL DESCENDANT OF INDIAN 
BLOOD OF ANY PERSON SO ADOPTED AND ACKNOWLEDGED AS A MEMBER OF ANY SUCH TRIBE OR BAND. 

DESCENDANTS OF INDIAN BLOOD SHALL MEAN PERSONS OF AT LEAST ONE-FOURTH INDIAN BLOOD." 

The arbitrators provided that such a person should be a British subject, resident in Canada, follow a tribal life, and the burden of proof of elligibility for annuities for persons added to the lists since Confederation should lie with the Dominion. The Dominion flatly rejected the arbitrator's ruling for eligibility and reacted with a policy of Non-Transmissable Title. 

This policy was developed by the Indian Department in 1898 as a mechanism for resolving the:- 

"DIFFICULTY OF FIXING A LINE BETWEEN THE HALFBREEDS AND THE INDIANS." 

Quite simply, it provided that a given person --whose title to the annuity was considered doubtful by the Department-- would be left on the annuity payment list for that person's life-time, but that person's children would be removed from the list at their maturity. Agency reports of the time recommended that some 4000 persons be struck from the lists of the Robinson Treaties and placed on the Non-Transmissable Title lists. 

The exact number who were, in fact, struck has yet to be determined. The same is true of the numbers who were re-instated on the regular lists when the policy was terminated in 1917. The obviously arbitrary and unilateral remova l of the people involved presents good basis for claim by descendants of those p eople in the Metis and Non-Status Indian population of Ontario today. 

Less surreptitious, but no less indicative of the policy of unilaterally reducing the Status population, were the compulsory enfranchisement procedures established under the Indian Act in the early decades of the century. Having es timated in 1880 that, at the present rate of enfranchisement, it would take 36,000 years to enfranchise all of Canada's Indians, the Department accelerated the process in 1884 by amending the Indian Act to remove band consent as a condition of enfranchisement and again in 1887 to give the Superintendant-General the power to determine who was, or was not, a member of any band of Indians. Non-Transmissable Title procedures were favoured for almost two decades but, foll owing its reversal, the Act was amended in1918 to enfranchise off-reserve Indian s. Dissatisfied with the response, the Department took off the gloves in 1920 and legislated itself the power of unilateral enfranchisement.

A Commons Committee discussion of the amendment for unilateral enfranchisement made the intent of the Department only too clear: 
 

"OUR OBJECT IS TO CONTINUE UNTIL THERE IS NOT A SINGLE INDIAN LEFT IN CANADA THAT HAS NOT BEEN ABSORBED INTO THE BODY POLITIC, AND THERE IS NO INDIAN QUESTION AND NO INDIAN DEPARTMENT. THAT IS THE WHOLE OBJECT OF THIS BILL." 

Negative Native reaction --and the failure to enfranchise a single person under the amendment-- led to its repeal in 1922. The policy of reducing the Status population persisted, however, and the amendment was re-enacted in 1933 and remained until the Act was revised in 1951. 

Voluntary, and even compulsory enfranchisement procedures pale to insignificance when compared to the "marrying out" provision in the Act and their role in reducing the Status population. This issue has been extensively dealt with elsewhere, and it is sufficient for our present purposes to point that an estima ted 95% of the Non-Status Indian population of Ontario is attributable to the se ctions of the Indian Act which strip a woman of her status when she marries a non-Indian or a Non-Status Indian, or a Halfbreed who is not registered as an Indian.

When the 20,964 enfranchisements recorded since 1867 --and their descendants-- are added to the numbers arbitrarily struck under other procedures --an their descendants-- and then add those Metis and other Natives who were ommitted from recognition at treaty --and their descendants-- the success of the polic ies for shrinking Federal responsibilities must be readily admitted. That same "success" however, supplies a base for many of the potential claims of Metis and Non-Status Indians today.