Metis Identity - A Source of Rights?
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Metis Identity - A Source of Rights? |
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The historical genesis of Métis communities which existed and, in many cases still exist, independently of the Red River Métis population have been demonstrated. In order to fully understand the context of Métis identity and definition in a contemporary context, a good grasp of the impact of legislation on existing Métis populations is necessary..
My intent is to show, on the one hand, the sometimes arbitrary impact of definition in the context of legislation on the process of Metis identity and identification. On the other hand, this section will also lay the basis for some of the issues raised in both the claims, and accommodation sections.
It would appear, at first glance that the bulk of this legislation --since it is focused primarily around the Indian Act-- would have little significance to Métis as a distinct Aboriginal people. It becomes quickly evident, however, that the Indian Act was frequently amended with the specific intent of forcing the mixed-blood segment of the Aboriginal population to become extinct via assimilation into the general population. It is in reaction to the imposition of Federal policy and legislation that we see people struggling to maintain their identity as Métis, on the one hand, and seeking to reclaim that identity, on the other. We will also find ourselves dealing with situations in which a mixed-blood indigenous population of a given area begin to use the term "Métisæ for the first time, as a way of relating to the imposition of federal legislation and policy.
This situation becomes more evident when we examine the first attempts of colonial authorities to define ìIndianî for purposes of government policy. The first legislative attempt to define Indians surfaced in Lower Canada in 1850 and, if taken literally and applied liberally today would include literally every person of mixed Aboriginal and non-Aboriginal ancestry in Canada. It included:
1. All persons of Indian blood and their descendants,
2. All persons inter-married with such Indians and
residing among them and their descendants
3. All persons residing among such Indians, whose
parents on either side were or are Indians
4. All persons adopted in infancy by any such Indians
...and their descendants.
In fairness, it should be admitted that most mixed bloods who wanted to be identified as Indians under the 1850 Act could probably qualify. Considering the bigotry of the day against Indians and Halfbreeds, who would want to identify themselves that way, if they had other options. Since inter-marriage was more frequent between French and Indians and since the resulting offspring were often likely to separate themselves from Indians, the only recourse many had to attain a land base, was to identify themselves as French. This unilaterally imposed "Indian or White" definition arbitrarily forced many to avoid identification as Métis.
This Act, however, did not apply in Upper Canada and was, in fact, modified a year later to exclude adopted persons and confine the inter-marriage clause to women marrying Indian men. The pattern for a shrinking definition of Indian was set, since relatively few white women, at the time, married Indians and Indian women marrying Whites or unregistered Indians under the Act would lose their "status", or rights to tribal lands.
The closing years of the 1850's saw another spate of investigations and corresponding legislation. Although existing legislation did not, in so many words, deal with the Halfbreed issues, the reports and commissions were adamant that the Halfbreeds should not be recognized as Indians.
In 1857, "An Act to Encourage the Gradual Civilization of Indian Tribes in this Province" (of Canada) laid the formal groundwork for the creation of a non-Status Indian population. Now that Indians had been, more or less, defined, legislators proceeded with mechanisms for excluding people from that definition. Although the express intent was the "the gradual removal of all legal distinction" between Indian and other "Canadian subjects", the fact that the Department's budget had been cut in half had its inevitable influence.
The heart of this Act was its "enfranchisement" clauses which stipulated conditions under which an Indian could "achieve" the same status as other Canadians --but neglected to point out that it would also involve the loss of all aboriginal rights. Aboriginal response to the enfranchisement clause was adamantly negative and few were actually enfranchised under its provisions.
The Act also established a new definition of Indian which excluded all Aboriginal people who did not live on a reserve or, as yet, unsurrendered lands.
When authority to manage Indian affairs was formally transferred from Imperial to Colonial authorities in 1860, legislators responded immediately --and predictably. After creating a Department of Crown Land under a Commissioner a second Act made that Commissioner the Chief Superintendent of Indian Affairs. With the fox securely locked in the chicken coop, colonial authorities could now turn to the more pressing issues of expanding boundaries of the province in Canada in preparation for the creation of the Kingdom of Canada.
It is important to understand that, from a Métis perspective, the story of Confederation looks more like a vicious scheme designed to deprive the first "true Canadians" of their birthright of self-determination and nationhood, than it looks like the achievement of a national dream.
The story of the entry of Manitoba into Confederation has been exhaustively dealt with elsewhere. But in the context of legislated identity and the impact of that legislation on present-day government policy toward current Métis populations, that effect of that process must be briefly examined.
The maladministration and exploitation of the 1,400,000 acres assigned to the Métis under the Manitoba Act has also been detailed elsewhere. But land scrip --the mechanism by which Métis lands were to be distributed to those entitled to receive them-- was also to have its impact on other Métis in Canada.
The first negative effect 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 is 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 Aboriginal 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. It was, however, refused within the borders of Ontario, itself, and delayed for years if the border could not be accurately 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 occasion, in Moose Factory, a written promise of scrip by a provincial authority has been identified and is the basis for a potential claim.
The Halfbreed Adhesion to Treaty Three was highlighted earlier as the only example of Métis taking formal numbered treaty as Métis. It is flagged here, again in terms of its impact on government policy which, in turn affects the modern-day climate for identity and definition of Métis.
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 Halfbreeds of Rainy River had achieved formal recognition, as Halfbreeds and as Metis, of their status as an Aboriginal 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, in a parallel process with Indian peoples. That recognition was clearly reversed by subsequent policy, and subverted by administrative fiat, resulting a significant basis for potential claim by Métis in Ontario.
There were three major factors evolving in the last decades of the 19th century that were to crush Métis hopes of recognition of their Aboriginal birthright. The first was the defeat of the Métis 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. These events were to create a federal mindset focused on the destruction of even the idea of recognizing Métis.
With the beachhead of Manitoba established, the Hudson's Bay Company dispossessed of Rupert's Land, and at least a "communication" to the northwest guaranteed by Treaty Three, the Dominion turned its attention to consolidating its control of Aboriginal populations and their lands. Two sporadic attempts to legislate Indian affairs following Confederation had accomplished several things: the transfer of the Department of Indian Affairs to the Secretary 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 basically consolidated and ìnationalizedî previous Indian legislation. 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, 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 a new class of inhabitants, placed between the whites and the Indians -- having, in a legal and political point of view, special and separate rights: or at least that 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 implications of its action and was deliberately avoiding the recognition of separate indigenous Metis population while appearing to compensate some with scrip or by accepting others into treaty as Indians.
These evasive policies eroded the climate for establishing Métis identity even further. The 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 northwest where scrip was being issued to Halfbreeds-- an 1888 amendment added that the permission of the Department was required for withdrawal. 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 territory 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 disastrous effects on Aboriginal rights.
The intricate maze of legalities created by the machinations of the Dominion and Provincial governments between 1874 and 1924 can not be dealt with in this paper. The basic issue, was to determine who owned surrendered Indian lands in right of the Crown. When the Privy council finally settled the St. Catherine's Milling case by determining that Ontario owned surrendered Indian lands, they also stated that Ontario 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 and, fearful of having to pay the annuities, hired a magistrate, E.B. Borron, to investigate and propose a position for the province. It was this investigation that was to virtually eliminate, for almost a century, identification as Métis as a viable vehicle for accessing Aboriginal rights outside the prairie provinces. By excluding Halfbreeds from annuity lists, the Ontario government made it clear that Halfbreeds and/or MÈtis had no Aboriginal rights to claim as far as Ontario was concerned.
Borron had no trouble, from Ontario's perspective, in establishing the "good reason" 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 Dominion 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."
Borron went on to insist that:
"They have no good claim under any circumstances
and I am, in accordance with
this view, leaving all half-
breeds 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 concentrated his attack on the Halfbreeds and American Indians. He proposed the striking 2894 persons from the Robinson lists, including 1710 Halfbreeds.
Hindsight makes it evident these policies were intentionally destructive of the Aboriginal birthright of Metis in the province and created a climate which sharply discouraged identification as Métis.
With minor variations, there was little change in this negative atmosphere until the recognition of Métis in the Constitution Act of 1982, and the introduction of the Bill C-31 process. We will deal with this legislation in the context of contemporary Métis realities.
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