CHAPTER 3
1. COURTS, POLICY AND CONTEMPORARY QUESTION OF MÉTIS IDENTITY
This chapter will discuss the contemporary development of Métis identity through government policy. Government policy has lead to a definitional approach to Métis identity, which has been taken on by the court system and Métis organizations. As well, further examination of current issues of Métis identity will be examined. Responses from the questionnaire will continue to be used in this chapter.
Chartrand (2002) mentions that from confederation until the early 20th century, a key issue for Canada was how to deal with the “Indian Question” and the related “Métis Question”, which was motivated by Canadian western expansion. He also goes on to articulate that the apparent solution as far as the Métis were concerned was to absorb them within existing First Nations bands and to pursue individual allotment schemes of their lands, so as to break their collective identity. In that case, the overall goal of the Canadian Government was the complete absorption of the Métis into mainstream society (p 196).
1.1) White Paper of 1969
In 1969, the Prime Minister of Canada introduced the “White Paper” on Aboriginal policy, which proposed an elimination of Aboriginal status, treaty rights, collective land holdings and to transfer the responsibility for Aboriginal peoples from the federal government to the provincial government’s (Schouls, 2003, p 4) This policy had an assimilationist objective, which claimed that Aboriginal people should be integrated into the mainstream Canadian society, ignoring their specific cultural identities. The government claimed that through this policy, the social, educational and economic problems of the Aboriginal peoples would be addressed. The government did not take into account that the problems encountered through being a marginalized peoples, were the direct result of the denial of Aboriginal and treaty rights in the first place. This policy sought to eliminate discussion of Métis, First Nations and Inuit cultural identity, with the hope that the rights associated with these peoples would be eliminated (Schouls, 2003, p 42).
Although this policy was heavily resisted, some individuals agreed with this approach to Aboriginal policy, such as Thomas Flanagan (2000). He is critical of government policy that has placed individuals into divided categories with separate legal rights. He believes that Aboriginal people have fallen into this trap because of the claims by Aboriginal leaders about original occupancy; traditional nationhood and historical cultural equivalency (p 70). He supports the idea that no people should have special rights and that it would be improved for people, if they recognize that Canada is made up of earlier and later immigrants. Flanagan agrees with Trudeau’s (1969) approach to Aboriginal policy and supports the idea of Canada being one nation of one certain kind of people (p 78-79). However, others disagree with this type of policy, Tully (in Schouls, 2003) claims that Aboriginal communities governed themselves through their own institutions, authoritative traditions and interpretation for centuries. In that case, it gives expression to the distinct cultural “customs and ways” that lie at the heart of what it means to be Aboriginal (p 45).
Tully goes on to state; those Aboriginal leaders utilized the language of nationhood as a method of preserving their cultural identities as distinct peoples as well as safeguarding their own social institutions (in Schouls, 2003, p 46). Therefore, as a shield against this assimilation policy, Aboriginal people used their cultural identity, history and language to separate themselves from the dominating and fragmenting colonial culture. In 1970, Aboriginal people in response to the “White Paper” countered with the “Red Paper”. The Red Paper was a resistance to the policy of assimilation and contradicted all the proposals of the white paper. Aboriginal people united and gathered a delegation that convened with the federal government, along with support from non-Aboriginal Canadians. Based on their strong resistance and support, they convinced the government to change this radical policy. This policy also leads to an emergence of Aboriginal organizations, which renewed political energy against the injustice and cultural harm that came from policies of assimilation (Schouls, 2003, p 4). This policy was an aggressive attempt at destroying the cultural identity of the Métis nation. Although, the Aboriginal peoples of Canada resisted this policy, other policies have also affected Métis identity.
1.2) Lovelace Case and Bill C-31
Section 12 (1) (b) of the Indian Act states that an Indian women marrying a non-Indian man ceases to be an Indian, as do her children within the meaning of any statute or law in Canada (Daniels, 1981, p 4). First Nations women would lose their right of being involved with community governance and services attached to being status Indian. These women are also deprived of the right to live in their cultural community. Whereas, if an Indian man married a non-Indian woman, the women would gain Indian status. This was a paternalistic policy that discriminated against First Nations women and their children (Daniels, 1981, p 4). During this period many First Nations women and children had their status eliminated, which often lead to many of these people joining up and identifying with the Métis population as a mixed race (Purich, 1988, p 23). On July 30, 1981, a woman by the name of Sandra Lovelace took her case to the international arena to be judged by the Human Rights Committee (HRC). Sandra Lovelace is a Maliseet woman from Tobique Reserve in New Brunswick. In 1970, she married an American Caucasian and moved with him to California (Borrows & Rotman, 2003, p 630). She lost her status as an Indian in accordance with section 12 (1) (b) of the Indian Act. After her marriage ended a few years later, she returned to the reserve and found she was denied housing, education and health care that was provided to status Indians (Sandra Lovelace 1947-). In this case Sandra Lovelace claimed that the Act was discriminatory on the grounds of sex and contrary to articles 2 (1), 3, 23 (1) and (4), 26 and 27 of the Covenant of Civil and Political Rights (Sandra Lovelace vs. Canada).
The HRC maintained that the loss of status did not amount to a violation because at the time, the Covenant did not come into force until August 19, 1976. Therefore, the HRC could only consider human rights violations on or after August 19, 1976 (Borrows & Rotman, 2003, p 632). The Committee, however, did state that after the date, she did suffer from the effects of discrimination and violation of her human rights (Borrows & Rotman, 2003, p 633). In that case, according to the HRC, Sandra Lovelace had a legal right to return to her reserve community. Although this ruling had no legal effect in Canada, it placed further moral obligation on the government to respond (Isaac, 2004, p 528). This resulted in the introduction of Bill C-31 as an amendment to the Indian Act.
Bill C-31 was implemented on April 17, 1985 as an attempt to abolish discrimination against First Nations people that had previously lost their status. Bill C-31 restores Indian status to women, enfranchised Indians and children of Indian women that married non-Indian men (Isaac, 2004, p 528). Through this bill, section 6 of the Indian Act was created, which declares individuals that are eligible for Indian status “those who had status before April 17, 1985, members of a group declared by Cabinet to be a band, those who lost status by sexually discriminatory provisions or enfranchisement, children with both parents with status and children with one parent with status under one of the above categories” (Elliot, 1997, p 17). Bill C-31 at the time it was implemented appeared as an achievement, which allowed for the removal of the discriminatory clauses against women, their children and enfranchised persons in the Indian Act. Nevertheless, Bill C-31 and section 6 has introduced a new process of losing status through marrying out, or having children with non-status people as is explained clearly by Frideres & Gadacz (2005, p 32).
Frideres and Gadacz (2005) state that section 6 has been divided into two sections: a 6(1) and a 6(2) Indian. Section 6(1) identifies those who lost or were denied status as a result of the Indian Act prior to 1985. On the other hand, section 6(2) registers only the child of one parent who was, or was entitled to be, registered under only 6(1) (Frideres & Gadacz, 2005, p 32). Between 1985 and 2001, over 112,000 have gained back Indian Act status; of those who gained it back three quarters were women. According to the 1999 Indian register, since the introduction of Bill C-31, the majority of individuals at an alarming 66.96% were granted status as a 6(2) Indian (Elliot, 1997, p 17). This is negative because as Section 6 of the Indian Act reads “If a 6(1) person marries a 6(1) person, then the child is 6(1); if a 6(1) person marries a 6(2) person, the child becomes 6(1); if a 6(1) person marries a non-Indian person, then the child become 6(2); if a 6(2) person marries a 6(2) person, the child become 6(1) and if a 6(2) person marries a non-Indian, then the child becomes non-Indian” (2005, p 32). Therefore, children of a 6(2) Indian parent are immediately penalized if they are married to a non-Indian person. The individuals reinstated with Indian status were mostly given 6(2) statuses. Also if a 6(1) marries a non-Indian they get reduced to the status of 6(2), so within generation status can be lost (Frideres & Gadacz, 2005, p 32).
Section 6 is discriminatory because it sets up further loss of Indian status, so children become non-status Indians with limited Aboriginal rights. As well, it has created the idea that First Nations people should marry other First Nations people in order for their children to maintain status, which is also discriminatory. This is important because it has had an effect on Métis identity. Métis people that could qualify to retain Indian status, often applied and were reinstated, which would provide them and their children access to treaty rights and services for status Indians (Purich, 1988, p 23). As Purich (1988) claims, which is also supported by Frideres and Gadacz (2005), First Nations that had lost status prior to 1985 considered themselves to be of Métis identity. When Bill C-31 was passed many of these people applied for status and the Métis nation population numbers greatly decreased (p 23).
As well, since to certain individuals the term “Métis” encompasses all mixed blood people of Aboriginal descent, individuals that end up losing their First Nation status through section 6, place themselves in the immediate category of Métis, rather than that of a non-status Indian (Purich 1988, p 23). Frideres & Gadacz (2005) mention that when a First Nations person lose status, they lose their treaty rights and opportunity to live on the reserve. In that case, they automatically feel Métis even though they are not included in the current definition. This feeling is attributed to the fact that they have one parent that is Indian and one parent that is Euro Canadian (p 33). However, this is not true because these people have never engaged in the culture, since being Métis is cultural in definition, these people are not included, but they attempt to be, which causes problems with identifying Métis individuals and creates uncertainty with the understanding of who is Métis (Frideres & Gadacz, 2005, p 33). Generally most Métis organizations are prepared to recognize non-status Indians as being Métis, but on the condition that they identify themselves with the Métis culture (Purich 1988, p 23).
1.3) Canadian Constitution Act of 1982
Prior to the establishment of Bill C-31, the 1982 Canadian Constitution Act recognized and affirmed the Métis as an Aboriginal group with protected rights. Throughout the 1960’s and 1970’s, the Métis came to the conclusion that constitutional change was needed, both to protect their culture, way of life, secure a land base and rights to self-government (Purich, 1988, p 180). Schouls (2003) states that a culture becomes a nation if the members within believe they are entitled to territorial sovereignty. In that case, communities will be able to ensure their distinct identities if they are granted collective rights within the country (p 6). The Métis nation wanted to be included in the constitution of Canada, so that they could ensure their unique group identity remained intact and their rights as Aboriginal peoples were recognized. However, the first drafts of the constitution in 1978 and 1980 had only included “Native Peoples of Canada”, which may or may not have included the Métis people. It was in 1981 that the word “Métis” first appeared and was included in a draft of the constitution. This amendment to use the word Métis took on the view that they were indeed Aboriginal peoples of Canada and that their rights would be protected (Purich, 1988, p 185).
In 1982, the Métis were finally acknowledged as a distinct group because the repatriated Canadian Constitution recognized the Métis as one of Canada’s three Aboriginal Peoples (Barkwell et al,; 2001, p 17). Section 35 of the Canadian Constitution Act reads as follows “ (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed and (2) In this Act, ‘aboriginal peoples of Canada includes the Indian, Inuit and Métis peoples of Canada” (Teillet, 2004, p 15). Having constitutionally protected rights was important for the Métis people of Canada. This is also important for the Métis because as already mentioned, no other country has constitutionally recognized mixed blood people as Aboriginal (Lischke & McNab, 2007, p 61-62).
However, the celebrations were short lived, after their inclusion into section 35; the provincial governments took a new position. Provincial governments across Canada argued that recognition and affirmation of Aboriginal rights were only a moral and political obligation. Also that Aboriginal rights as legal rights did not exist until they could be proven in court (Lischke & McNab, 2007, p 61-62). This has forced provincial governments to employ the court system to pass decisions based on the approach of Aboriginal rights in section 35. As well, the courts have also made decisions on who is allowed access to these rights. This is based on the fact that Canada “recognized and affirmed” Métis rights, but did not define them. This has become a central legal question that has furthered the identity debate about “Who are the Métis for the purpose of section 35?” (Isaac, 2008, p 1). Isaac (2008) states that until this can be determined, the analysis required on the extent and nature of Métis rights will have to be decided (p 1). The question of Métis identity takes on many challenges related to culture, history, law and modern politics and even though there have been many attempts to define a Métis person, this has proven a difficult task (Walkem & Bruce, 2003, p 64).
1.4) Crown verse Powley (2003)
The Powley case is both significant and historic for the Métis people of Canada. It is the first time since the recognition and affirmation of rights in section 35, that the Supreme Court of Canada has tested Métis Aboriginal rights (Walkem & Bruce, 2003, p 84). Steve Powley and his son Roddy Powley, shot a bull moose near Sault St Marie (in Ontario) on October 22, 1993. They did not contain the proper documentation required at that time for moose hunting, which included a valid hunting licence. After shooting the moose, Steve Powley placed a tag on its ear indicating the date, time and location of the kill. He also noted that the moose was to provide meat for the winter. He wrote his Ontario Métis and Aboriginal Association membership number on the tag (Isaac, 2008, p 8).
One week after killing the moose, the Powleys were charged with unlawfully hunting moose and knowingly possessing game hunted in contradiction to Ontario’s Game and Fish Act. They both entered pleas of non-guilty and argued that as Métis they held an Aboriginal right to hunt and fish for subsistence purposes. The courts agreed with the Powley’s, that all members of the Métis community in and around Sault St Marie have an Aboriginal right to hunt and fish for food. However, the case was appealed and taken to the Supreme Court of Canada to render a decision (Isaac, 2008, p 8).
First, the Supreme Court had to assert whether hunting and fishing was a traditional practice of the Métis, which was fixed in a pre-contact time frame. Consequently, the Métis people are an outcome of colonization, there would have to be a date of effective control of the community, so in this case the court determined that the date of effective control by the Métis people in Sault Ste Marie was 1850 (Walkem & Bruce, 2003, p 68). Determining effective control of a community is an aspect that must be resolved in all future Métis rights cases. The court decided that hunting was an integral aspect to the culture of the Sault Ste Marie Métis community because evidence supported hunting as an important feature of current Métis life. Furthermore, the court decided that the Powley’s were hunting within their traditional territories. In sum, the Supreme Court of Canada ruled in favour of the Powleys, claiming that the people of that community had a right to hunt and fish under s.35 (Walkem & Bruce, 2003, p 81-82).
The Supreme Court also provided clarity around the question of “who are the Métis” by adopting the view that “the term Métis in s.35 of the Constitution Act, 1982, does not encompass all individuals with mixed Indian and European heritage; rather it refers to distinctive peoples who, in addition to their mixed ancestry, developed their own customs, and recognizable group identity separate from their Indian and Inuit forebears” (Walkem & Bruce, 2003, p 84). The Métis of Canada share the common experience of having forged a new culture and a distinctive group identity from their Indian or Inuit and European roots. This enables the court to speak in general terms of “the Métis” (Isaac, 2008, p 9). It is important for the issue of Métis identity that the court mentioned, for the purpose of section 35, that Métis identity is not based on simply biological mixing, but that mixed ancestry is simply one component of what is required (Isaac, 2008, p 9). The court established that the Métis are a distinct culture within a separate group identity in Canada. This decision portrays that the court thought of Métis being more than a mixed race, but rather that they acquired a unique cultural identity.
In Powley, the Supreme Court was asked to consider the legal meaning of the term “Métis”, for the purpose of determining if there was a Métis right to hunt for food. The Court stated that it was formulating a general criterion of the Métis for the purpose of asserting a claim under s.35, but their approach sets the context and tone for future public policy development (Isaac, 2008, p 9). On the issue of identity the court claimed that “S.35 must reflect the purpose of this constitutional guarantee to recognize and affirm the rights of the Métis held by virtue of the continuity between their customs and traditions and traditions of those of their Métis ancestors” (Walkem & Bruce, 2003, p 85).
The Supreme Court went on to list three broad factors that provide the indication of Métis identity: 1.) self-identification as a Métis person; 2.) evidence of ancestral connection to an historic Métis community and 3.) a demonstrated acceptance by a modern Métis community. This idea of ancestral connection to a community, may be easier to prove for western or northern Métis individuals than “other” Métis, that may not be able to prove ties to a “historic community”, so definition can restrict some Métis from accessing these rights in section 35 (Isaac, 2008, p 10).
Lishcke & McNab (2007) further elaborate on the criteria set out by the court. Self-Acceptance means that an individual must self-identify as being Métis. The court has singled out identification as perhaps the most important factor for determining who the Métis are for the purposes of section 35, which is determined by a voluntary act of association by the individual. Ancestral Connection to a historic Métis community goes further than just self-identifying; an individual must have ancestral connection that they can prove to the historic Métis nation. This includes no minimum blood quantum and the “ancestral connection” may be by birth, adoption or other means. Lastly, Community Acceptance means that an individual must prove that they have been accepted by a modern Métis community. This is about the past and ongoing participation in a shared culture, in the customs and traditions that reveal a Métis community’s identity (p 67).
There have been other court cases that have dealt with the issue of Métis identity. As well, there have been many provincial cases, which have further elaborated the courts findings in Powley, with relation to Métis Aboriginal hunting and fishing rights. However, Powley has set the criteria and standard for which all other cases will be elaborated. Powley also took it upon itself to set criteria for defining who exactly the Métis people are for the purpose of section 35. Therefore, when a Métis community or individual attempts to make use of their rights, the government investigates these cases in court before making a decision, which further narrows and restricts the usage of their recognized and affirmed rights. In Powley, the court suggested criteria for identifying present day Métis rights holders, which has been taken into consideration by Métis organizations when determining criterion of their membership (Lischke & McNab, 2007, p 66).
1.5) Present Métis Identity and Challenges
As has been discussed, one major issue revealed from the constitution and case law (Powley and others) to date more directly relates to the question “Who are the Métis?”. The determination of this question for Aboriginal people as “Métis” has been a growing concern and issue since the Constitution Act of 1982 (Chartrand, 2002, p 26). There are a number of reasons for the confusion surrounding the term Métis and who is Métis for the purposes of section 35. As was stated earlier, the term Métis has been used in the colonial context to describe all individuals of mixed Aboriginal and non-Aboriginal ancestry, which was addressed in Powley. The Métis have also been viewed more restrictively as those that can trace their ancestry back to the historic Métis nation. Another complicated aspect is the close kinship, social and geographic relations with First Nations including intermarriage between these two groups. These issues have caused considerable confusion around defining a Métis person (Lischke & McNab, 2007, p 3).
During the constitutional conference in 1983, the MNC stated that “We the Métis are an historic Aboriginal nation. During the 18th and 19th centuries we developed our own cultural identity, lifestyle and political consciousness and asserted our rights through the formation of provisional governments in both Manitoba and Saskatchewan. Though defeated militarily at Batoche in 1885, we have waged an incessant struggle for justice through successive political associations” (Purich, 1986, p 181). This is the early claim of the MNC to the development of a continued desire to enforce a strong recognition of Métis identity in Canada. The duty of defining the Métis question of identity has been a task assigned to the Métis themselves, although the Supreme Court has suggested certain criteria. This task has been based on a heated division between two organizations, the MNC and RCAP. RCAP has recommended the following definition
“Every Person who: (a) identifies himself/herself as Métis; (b) is accepted as such by the nation of Métis people with which that person wished to be associated, on the basis of criteria and procedures determined by that nation be recognized as a member of that nation for the purposes of nation-to-nation negotiations and as Métis for that purpose”(Walkem & Bruce, 2003, p 64).
On the other and the MNC defines a Métis person as:
“Métis means a person who self-identifies as Métis, is of historic Métis Nation ancestry, is distinct from other Aboriginal peoples and is accepted by the Métis nation. Historic nation means the Aboriginal people then known as Métis or Half-breeds who resided in Historic Métis Nation Homeland. Historic Métis Nations homeland means the area of land in west central North America used and occupied as traditional territory of the Métis or Half-breeds as they were known. Métis nation means the Aboriginal people descended from the Historic Métis Nation, which is now compromised of all Métis Nation citizens and is one of the ‘aboriginal peoples of Canada’ within s.35 of the Constitution Act of 1982” (Lischke & McNab, 2007, p 3).
The major difference is that the MNC associates the reference of Métis in section 35 solely and exclusively to descendants of the Red River and Métis involved in the scrip system. RCAP represents Métis people that reside in NWT, Labrador, certain parts of Ontario and Métis identifying populations in Quebec. These Métis people do not depend on the Red River connection or the scrip system as a component to their identity (Chartrand 2002, p 216).
The MNC definition has been criticized by many groups as being too narrow and focusing too much on western Canada. It is argued by other Métis people and organizations that, because of their Indian origin, they should have some Aboriginal rights. They also claim that the MNC definition is limited to those mixed blood people to whom the federal government made promises in the 1870s and 1880s (p 26). Mark Stevenson (in Lischke &McNab, 2007) asserts that the MNC definition appears to limit the Métis people to the area of the Prairie Provinces. The MNC primarily represents the Prairie region, which reiterates the fact that the Métis people emerged as a distinct socio-cultural entity that allowed for the birth of the Métis Nation. Therefore, the descendants of these Métis established the historic Métis Nation (p 6).
The Provincial Métis organizations agree with the MNC on the definition based on self-identification, mixed Aboriginal and European ancestry and community acceptance, but there is variance on the issue of geographic origin of ancestry. For example, The Labrador Métis define the geographical location as specifically to Labrador. Nova Scotia and Quebec do not place geographic limits on the ancestry of their members. Rather, in this case, any individual who is of mixed Aboriginal and non-Aboriginal heritage and who resides in the province can become a member. However, they must prove access to section 35 rights by passing the “Powley Test” through the court system (see Footnote 3)(Lischke & McNab 2007, p 7).
The Métis involvement in the defining process is crucial because if left up to the federal government, then more confusion would ensue. This can be based on the experience of the First Nations people under the Indian Act and other government policy such as Bill C-31 (Purich 1988, p 28). Imai (1999) claims there are as many definitions as there are people doing the defining, so that part of the complexity lies in the fact that different descriptions are used for different purposes. Schouls (2003) claims that people who happen to share historical continuity through characteristics of ancestry, culture, or territory should decide whether it is important to be defined from within, from the perspective of their members (p 11). In spite of this, the major part of the confusion is caused by the differences between Métis peoples own definitions of themselves and definitions imposed on them by the constitution or by legislation (p 10).
The courts have laid out suggestive criteria on Métis identity, which must be required of individuals, when section 35 rights are tested in the courts. The court in Powley recommended that Métis individuals must provide proof that they self-identify, are accepted by a Métis community and have connection to the Historic Métis Nation. The MNC has adopted this criterion in self-defining their own membership (Chartrand, 2002, p 216). This question of defining the Métis people in section 35 is essentially the task of construing a term in the Constitution of Canada. The determining process and analysis of Métis identity for the purpose of section 35, which has guided the identity process, has allowed the Métis Nation to make the decisions as it pertains to Métis identity (Chartrand, 2002, p 272).
The participants in the questionnaire, as mentioned before, provided responses about their personal definition of a Métis person. Some mentioned mixed, but others included a cultural aspect to the definition such as Mary, “My definition of a Métis person living in Canada is a mixed blood person with Aboriginal and European ancestry (whether it be French or English does not matter) who is actively living the Métis culture of their Métis ancestors as best as they know how to do” (Questionnaire, 2008). It is important to note that she also mentions that “living the culture”, but adds “as best as they know how to”. This is interesting because it places the onus of the cultural definition on a Métis person, but opens up interpretation to the individual on the extent to their knowledge and knowhow of their culture. Perhaps this can be an included element that allows Métis individuals the freedom of engaging in aspects of the culture that they are aware of, or that is available to them (Questionnaire, 2008).
In the answers of the questionnaire, the idea of belonging to the historic Métis Nation as listed in the MNC definition was not mentioned by any of the participants. In fact, one participant Cody stated “I don’t believe in exclusive definition; i.e.) One has to be a member of a historical Métis community” (Questionnaire, 2008). As well, as stated earlier Gabriel claimed that a person’s ancestors should not have had to come from the Red River and that it is an unfair assessment of being Métis (Questionnaire, 2008). As Green (2003) discusses, the political deciding of who is in/who is out of the membership by the courts, the MNC, RCAP, Canadian/provincial government and provincial Métis organizations raises the political question of who gets to decide. Her intentions are not to dismiss the idea or recognizing the value of cultural practices, but discussing the problematic idea of political organizations creating definitions that invoke a sense of discrimination within their own culture (p 1). This idea of descending from a historic Métis community, as laid out in Powley and through the MNC definition, has restricted the geographic limitations to the Canadian prairies. This has created a who’s in/who’s out type of policy around Métis identity.
However, as mentioned earlier there is unanimous consent on self-identification and community acceptance within Métis organizations, courts and governments. In the questionnaire, the majority mentioned mixed as a prime defining marker using the pan-istic/biological approach to the definition, but three respondents discussed the importance of self-identification and two discussed community acceptance, with none of the participants discussing being descendants from the historic Métis nation as a criterion for defining Métis people (Questionnaire, 2008).
Jean Legasse (1958, in Lussier, 2009) conducted a study called “People of Indian Ancestry in Manitoba”. In this study, there were twenty participants who were invited to define what the terms Métis or Half-breed meant to them. The findings included: 1.) any person of mixed White and Indian blood having not less than one quarter Indian blood, but that does not include Indian (under Indian Act) or non-treaty Indian; 2.) Métis are people that live in poor housing similar to Indians on the reserve; 3.) Any full blooded Indian person living as a White person, this enforces that they be considered Métis; 4.) An upbringing with a hunting and fishing economy even if embraced the White way of life and 5.) People with Indian background who do menial tasks or are generally employed with part time jobs. They usually live in poorer housing and reside in poverty. For example, if a person held a position as an office manager and was a respected member of the community, then they are not Métis (p 46).
In this study, it was interesting that the responses of the participants were based on common societal stereotypes about Métis identity. If an individual had a decent job, did not live like Indians, performed administrative tasks and had a good standard of living, they would no longer be considered Métis within the dominant society of Canada (Legasse 1958, in Lussier, 2009, p 46). On the other hand, if the individual met the requirements of the early mentioned findings, then they were considered Métis. In Legasse’s (1958) study, many of the participants described Métis identity as stemming from a mixed culture of Indian and European ancestry. This is also the case within the 2008 questionnaire, as the majority of the participants included a mixed criterion. Presently, times have changed from 1958, so the information and responses from Métis people have transformed considerably. This can be attributed to the new resurgence of Métis nationalism and a deeper understanding and acceptance of Métis culture and history by the majority of Canadian society. The Métis respondents in the questionnaire accepted the definition based on miscegenation, self-identification and community acceptance. However, as stated earlier, there was no recorded importance on an individual having to be a descendant from the historic Métis nation (Questionnaire, 2008). Lussier (2009) claims that acceptance of the past and current definitions of Métis identity, which are imposed on communities, present a unique identity and unity crisis for the Métis people. Narrow local concerns, language, geographic division and politics, have all promoted disunity and identity problems amongst once a proud and ambitious group (p 46). However, Lussier does not emphasize how the current Métis definitional problem has emerged from the acceptance of the Métis in section 35, which has caused the desire of Canada through the courts to define these people for the purpose of accessing their rights. He does underline, however, that Métis history needs to be re-emphasized and not re-written and that discussions must go on at the community levels to advance Métis identity on a provincial scale, forgetting regional, religious and linguistic differences (p 46).
Métis identity has become a complex discussion in contemporary Indigenous studies because there are many aspects and complications, that it is fraught with difficulties in determining the membership of a mixed race. This paper has attempted to illustrate the clash that is contemporary Métis identity along with the constant struggles of their ancestors. As a Métis Nation, it is important that a unifying understanding is made about their identity, so that politically the Métis nation can move forward. Approaches have been made to address the question of current Métis identity through the courts and Métis organizations, which has raised debates and questions about identifying Métis individuals. Foster (2004) also discusses the importance of the Métis themselves in reformulating their identity by attempting to change the public’s perception and changing the perceptions of their own people. This has been made possible through cultural awareness programs by Métis organizations and through negotiations with the national and provincial governments (p 314).
RECOMMENDATIONS
As this paper has portrayed, the issue of Métis identity in Canada is fraught with many challenges and obstacles. These not only exist between the different Aboriginal organizations, but also between Canadian society, Métis communities, governments and the court system. It is important for Métis governments to spread more awareness of the Powley decision, understanding of section 35 and their significance on issues of Métis identity. Steps have been taken through the MNC website and the websites of provincial organizations, but more efforts need to be accomplished in bringing this to a larger majority of Canadian citizens.
Awareness of the current policy, definitions and issues around Métis identity should be provided through conferences and seminars, which encourage government employees, interested members of Canadian society and Métis individuals a chance to understand the current ideas of Métis identity. As well, awareness of Métis current events should be provided through pamphlets or updates to Métis individuals that have self-identified. This would allow for Métis individuals an opportunity to understand the complexities and complications with Métis identity, which would allow for more involvement at the community level in discussing “who is a Métis?”.
It can be agreed with Lussier (2009) that deciding Métis identity needs to be done at the community level, to include individual members of the many Métis communities, so a collective compromising group identity, that enlists the voice of Métis individuals can be established. This would be a difficult task, but the results would be interesting and informative. A recommendation is to propose a larger qualitative research project, which could be conducted throughout the Canadian provinces, where notable Métis populations exist. This research study could be carried out by independent Métis researchers, who interview Métis individuals that self-identify and comprise the provincial membership of the Métis nation. The interviews would ask questions about issues of identity and their opinions on a proper definition of who is a Métis person. This type of research project could advise Métis political organizations about the common preference of their people as it pertains to these issues. This type of project would include the voice at the community level and perhaps assist in unifying all communities, in agreeing upon membership in Métis political organizations, so as to avoid separation the Métis nation.
It is difficult to deny the fact that the courts and the Canadian government want to assist in defining the Métis for the purpose of accessing the rights in section 35. The importance is based on the idea that if a pan-istic approach to Métis identity was used based solely on “mixed blood”, then the amount of people with access to these rights would be extremely numerous, which could cause further confusion, not only for Canada and the courts, but for Métis people themselves. This is the reason for the need to create a recognizable approach to identifying Métis individuals. However, the approach should not reject Métis communities, who do not fit the current MNC definition. It has been stated that certain aspects of the current definition have been agreed upon, such as: self-identification, mixed ancestry and community acceptance, but there has not been unanimous consent on having origins that stem from the historic Métis Nation homeland (Red River/ Prairies).
This has created a divide between western Métis and Eastern/northern Métis communities based on the geographic limitations of the MNC definition to western Canada. Métis people are a communal Aboriginal group whose decisions to identify their membership should be made together, to ensure the formation of appropriate membership criteria. As was emphasized, in the questionnaire, none of the nineteen respondents (western Canada) mentioned that an individual should prove descent from the historic Métis Nation. It is agreed that a collective Métis identity emerged from the early building of Métis nationalism in the Red River, but ancestry to this region should not compromise those, that did not reside and contribute to collective western cultural identity. Through French colonial policy in the east, mixed people began to appear. Therefore, there are Métis in that area, which understood their mixed relations and shared commonalities, so they should for all intents and purposes be included within the confines of the Métis identity process. In that case, it is recommended that the MNC drop the idea of descending from the historic Métis homeland and allow for an opening of community acceptance and recognition of other Métis communities.
As one of the respondents claimed, it is not fair to make Métis people prove they are from a historic community. Of course the study only included the voices of nineteen respondents, but it would be interesting to carry out a larger study to observe how many individuals discuss this in their self-definitions of a Métis person. It can be agreed that self-identification and community acceptance is a vital aspect to Métis identity. Therefore, this would also include the courts dropping this idea of a Métis person being descended from a historic Métis community. Based on census data it is understandable that the majority of the Métis population resides in the Prairie Provinces and western Canada, but this should not play a pivotal role in the determining of a collective group identity, since there are notable Métis communities in the east and north of Canada.
Another recommendation should be around the confusion of the self-identification approach to Métis identity. What does this mean to self-identify? Is it simply saying that one is Métis? Or is it based on cultural criteria? I understand that when a person self-identifies as being Métis, in order to access the rights in section 35, they must move on to further criteria that would assist in proving their identity. If one feels Métis, then are they Métis? Naturally, the Métis Nation stemmed out of mixed relations between Europeans and Indians, therefore, can anyone of mixed identity just identify? Through policy and the courts the answer is “no”, but it is important to ask these questions because this idea has remained an unclear question. Therefore, if one self-identifies, but has no need to access the rights found in section 35, or does not seek membership in a Métis community and cannot prove it through genealogical evidence, then through their self-conceptualization they are Métis.
In spite of this, if they would need to access the rights guaranteed to the Métis through section 35 by self-identifying and living the lifestyle, but do not have acceptance from a community, they will not be considered Métis. How about the case, of a person who gains Métis community acceptance, self-identifies and lives the culture, but is not from the origins of mixed ancestry, should they be denied membership based on the biological qualifications to being Métis. I would have to suggest that being Métis aside from the biological aspect should be cultural in definition. I understand that this could also be restrictive in essence, but believe that it is not as confined as the historic Métis Nation clause. This still allows individuals to self-identify, but in the case of accessing rights, they should have to be involved culturally through their self-identification. Obviously the main question here is how does one prove their cultural involvement? Questions should be asked: Why do you self-identify as being Métis? Is being Métis important to you? These are obviously difficult questions to answer, but would provide a more selective approach to the more general idea of self-identification.
This is just a recommendation on the definitional approach to being Métis. Of course, many individuals can self-identify and that is that, they can live and be proud to be Métis. However, for the purpose of section 35 and accessing the rights, which were recognized and affirmed, this criterion can be more structured through self-identification guidelines. This would open up the definition from the idea of the Historic Métis homeland, so as to include all recognized Métis communities and self-identifying individuals.
Another problem is that when Métis people attempt to access their rights, the Provincial and Federal Government have depended upon the court system to define and determine the extent of Métis rights. In that case, it has narrowed and restricted through case law the access of Métis people to these rights: most often the rights tested are hunting, fishing and land rights, in the case of the loss of land that was promised in the Manitoba Act. This has caused the absolute need to define, determine and place restrictions on Métis identity. The Governments should attempt to alleviate this dependence on the court system and to create a dialogue with Métis governments and organizations, so that the rights of the Métis people could be enhanced through discussions. This could possibly formulate an effective and clearer understanding about Métis identity, without the confusion that has been created through government policy and the dependence on the court system.
CONCLUSION
To conclude, the Métis people of Canada were the creation of mixed unions between First Nations peoples and European explorers/traders. These unions created a “new peoples” with a shared background and experience in the new world. The mixed peoples emerged as interpreters, guides, traders and translators in the east of Canada. They carried with them a cultural identity that blended elements from both their maternal and paternal lineages. These people understood that they endured a similar experience as a mixed race and carried this culture with them as they engaged in the early economy of Canada.
Eventually the fur trade expanded into western Canada, so many Métis individuals decided to follow the trade, some for adventure and some based on the economic advantages. The Métis people settled at the forks of the Assiniboine and Red Rivers, which became known as the Métis homeland, where they were employed as traders for the NWC. This homeland allowed for a collective Métis cultural identity to cultivate and develop into a unique and distinct identity that was separate from both their First Nations and European identities. The arrival of new Scottish settlers to their homeland produced discomfort, but also an opportunity to unify and defend their homeland. Some scholars have claimed that the fur trade wars between the HBC and the NWC were the reason that the Métis nation was created. Other scholars claim that the Métis through their shared experiences already developed a distinct and unique identity. In fact, the Métis people were aware of their mixed identity and shared experiences, but it was the fur trade that hurried the process of a strong sense of Métis nationalism.
Events such as the 1816 Battle of Seven Oaks, the 1849 Sayer trial and the 1869 sale of Rupertsland to Canada, intensified Métis nationalism and created a strong collective cultural consciousness in present day Manitoba. It demonstrated the authority and success they encountered as traders and hunters in the prairies. Their population in the Red River in 1870 displayed their growth and prosperity. In 1869, they resisted the Dominion of Canada, and through the leadership of Louis Riel and the Métis provisional government, they were able to bring Manitoba into the Dominion of Canada in 1870. They gained a major victory by having their cultural rights and land rights protected in the Manitoba Act, which allowed them to secure concrete evidence of a recognizable identity.
Unfortunately, Canada did not uphold the Manitoba Act, so many Métis migrated further west into present day Saskatchewan and Alberta. They continued their collective identity and set up new Métis communities where they once again had to defend their rights in 1885. The building of Métis nationalism and the struggles through resistance to ensure the respect of their rights produced some notable Métis identities such as: Cuthbert Grant, Louis Riel and Gabriel Dumont. Post 1885 was a difficult period for Métis identity. Although several assimilated into either First Nations or Euro Canadian communities, the Métis that survived in their impoverished communities were able to maintain the cultural memories and traditions of the Métis nation.
They maintained cultural aspects that have been passed on from generation to generation. In this paper, Métis dance (Red River Jig), Métis sash (symbol) and the language of the Métis were used as examples. From the period between 1885 and the 1960s, it was the hope of Canada that the Métis people would be assimilated and integrated into two categories: First Nations and Euro Canadian. Assimilation policies were Canada’s approach to the Aboriginal question, as was exampled in 1969 with the White Paper. However, Aboriginal peoples came together to protect their cultural rights. In 1982, section 35 of the Canadian constitution act, which allowed for the recognition and affirmation of Aboriginal and treaty rights, established the Métis officially as one of the Aboriginal peoples of Canada.
Section 35 took the issue of Métis identity to a whole new level as the government asked the question “Who are the Métis?” for the purpose of accessing these rights. As was mentioned, the colonial definition of a Métis person was an individual of biological mixed First Nation and European descent. However, if this were the definition, the people claiming rights in section 35 would be in between one to two million. Therefore, a pan-istic approach based on biological descent cannot be the only factor in identifying Métis people because they emerged from a unique and distinct culture, which possessed their own political and economical autonomy in the 1800’s. On top of that, identifying Métis individuals cannot be based on an objective approach because no physical characteristics typify a Métis person. Therefore, Canada has had to use a subjective approach based on such things as self-identification.
As Redbird mentioned, this has made the term Métis confusing, it has become a catch phrase for people with no identity to latch onto. Individuals have started to identify as Métis because of their need to belong to a group. An example can be found in the confusion of Bill C-31, which has given Indian status back to individuals that previously identified as Métis. For those individuals that lost Indian status, they assume, based on a biological approach, that they are Métis. This caused considerable confusion for the Métis nation and for the Canadian government on the issue of Métis rights. Although these rights were recognized and affirmed, they were never defined, so they needed to find individuals that are of Métis origin to start the process of defining section 35 rights.
Canada decided that this would be resolved by taking Aboriginal rights in section 35 to the court system. Powley (2003) became a landmark case for the Métis and answered some questions in regards to Métis identity. Firstly, they resolved the question around Métis being a biological definition and claimed although it is an aspect of their identity, which it is not the only acceptable criteria, but that being Métis means being associated with a culture that is distinctly Métis. Secondly, the court suggested criteria that should address the issue of Métis identity and comprise membership for the purposes of section 35. This criterion includes: self-identification, community acceptance and descent from historic Métis nation. Thirdly, they address the issue of identifying Métis communities and establishing there date of effective control.
One positive thing is that the Métis people themselves have been provided the opportunity to comprise their own membership. This has caused the MNC to create a definition that is similar to the Powley recommendations. Other than being biologically Métis one must also: self-identify, gain community acceptance and descend from the historic Métis nation. This has created a divide between the MNC and RCAP because RCAP has represented Métis communities that are excluded from this definition based on the geographic boundaries to the historic Métis nation. The Historic Métis nation comprises the geography of western Canada and parts of Ontario. The reason for the connection to the historic Métis nation is based on the emergence and crystallization of a collective group identity in the Red River area. Therefore, communities in eastern or northern Canada have a difficult time through the courts or the MNC in accessing their rights in section 35. This creates a divide and disunity amongst the Métis nation.
As mentioned earlier, Métis people should be unified, just like the Métis of the 1800’s. Métis communities should be accepted from all over Canada in the national definition of Métis. It has been widely accepted from Métis organizations, individuals, governments and courts, that self-identification and community acceptance as an individual Métis person is important. However, the nineteen individuals in the questionnaire do not mention that a person should be descended from the historic Métis nation homeland and a few individuals even mentioned their displeasure with that clause. The questionnaire served as a personal influence to the paper, but it is recommended that Métis communities involve the individuals that comprise their membership. This could be done by performing qualitative research projects among the membership and ask at the community level for individual’s definition of a Métis person.
Perhaps a research project of this nature could create a collective definition, or provide ideas and insights at the community level into the debates over Métis identity. It is also recommended that the MNC and the courts drop the historic Métis nation homeland criterion and add a cultural component to self-identification. When people self-identify, it should be based on their knowledge of the culture, maybe take an easy cultural challenge, but this is just a recommendation to address the complexities around self-identification. Many scholars believe that if one feels Métis then they are Métis, but others feel they need to live and know it. For this reason, more awareness to Métis individuals should be provided through pamphlets sent to their residence on the Powley case and the MNC definition for membership, along with an idea of their provincial membership criterion. The challenges and obstacles created by section 35 around the whole issue of Métis identity fails to have one concrete answer, which has proven the many complexities on establishing the identity of a mixed group.
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