Indigenous Identity and Canadian Law: A Personal Journey

This essay was written for a session on systemic bias, part of the Law Society of British Columbia’s Truth and Reconciliation Symposium on November 23, 2017

There, is a tree swinging
And voices are
In the wind’s singing
More distant and more solemn
Than a fading star.

T.S. Eliot, The Hollow Men

The Canadian colonial project intertwines Indigenous identity with the development of Aboriginal law. Oppression and reconciliation partner to classify, legitimize and de-legitimize Indigenous people. Whether they see themselves as part of the “Indian, Inuit, and Métis peoples of Canada” under section 35 of the constitution, status or non-status, ‘on-reserve’ or ‘off-reserve,’ a 6 (1) or a 6 (2), for every Indigenous person the law intrudes on, shapes and at times distorts their sense of self.

The complex and constantly changing relationship between Canadian law and Indigenous identity is difficult to explain or appreciate in the abstract. Consequently, I’ve decided to approach it through a telling of my own personal journey, not because there is anything particularly interesting, universal or exceptional about it, but because, as with any powerful historical force, at its core colonialism is personal.

Tabula Rasa

With no memories of my father, who died when I was five, my role models growing up were strong, self-reliant women—mother, sisters and grandmother. I saw myself as a take-no-crap farm kid whose parents received phone calls from the local minor hockey league threatening to banish him for fighting and who memorized Shakespeare while picking rocks.

My understanding of my family’s past was based on snippets of conversation heard around the kitchen table. Slowly I came to understand that we used to live in the bush north of the Peguis First Nation reserve. Now we lived a mile south of the reserve, doing our best to farm scattered bits of land on Manitoba’s agricultural fringe.

In hindsight, I did many things as a kid that would now be classified as ‘traditional practices’: hunting (sweet tea over an open fire), trapping (rows of little pelts hung to dry in my mum’s basement), snaring rabbits (my brothers’ patience with my clumsy fingers), picking saskatoons (poplar trees singing in the wind above us). These were activities without history—it was what we did, not who we were.

Coalescence

Three incidents stand out as complicating my self-identity.

The first was a family reunion. My oldest sister, whose energy and optimism are my lodestar, threw herself into researching our family history. The most memorable part of the reunion was the intergenerational jalopy races around hay bales in the field back of my mum’s house, but the family tree my sister produced had a more lasting effect.

On my mother’s side my resentment for being raised Roman Catholic was softened. Church records allowed my sister to trace my mother’s family back to two of the earliest French families to arrive in Acadia and New France in the 1630s. My sister had given me a direct, personal relationship with the Acadian Expulsion, the Plains of Abraham and many other famous, and infamous, events in early Canadian history.

Her research on my father’s side revealed a personal connection with less well understood aspects of Canada’s past. My father was descended from Indigenous women (Anishinaabe and Cree) and men (mostly Scots, with the odd Englishman and French Canadian thrown in) who had worked for the Northwest Company and the Hudson’s Bay Company. Eventually, they had settled at Red River in what was to become Manitoba.

Initially I was drawn to the men’s names on my family tree I was familiar with from Canadian history, those such as James Curtis Bird and John Thomas immortalized with entries in the Dictionary of Canadian Biography, the ultimate confirmation of historical significance. These men soon lost their grip on my imagination, their places filled by the Indigenous women from my family’s past, some with names—Mary Oo-menahomisk, Louise Serpente, Elizabeth Montour, Robina Hay—many without, whose histories, dreams and accomplishments had disappeared from the record like dry leaves on an autumn wind. Who were these silent ancestors whose stories had been lost to me? In what way was I their descendant? What were my obligations to them?

The second incident was applying for law school. In filling out the form I faced the choice of applying in the general category, the Aboriginal category or both. With a decent grade point average and LSAT score, a Ph.D. in history and several years working with some of the best Aboriginal law lawyers in Canada I was confident I would be accepted. Importantly, I did not want to take a space from those I thought of as truly Aboriginal, so I only ticked off the box for the general category. Then the law school phoned me. They had noticed a reference to my Indigenous ancestry in my application and wanted to know if they could slot me in as an Aboriginal student. Again, my family tree swayed to and fro—Mary Oo-menahomisk, Louise Serpente, Elizabeth Montour, Robina Hay—would saying no deny my connection to them? After confirming I wasn’t taking a place from anyone, I agreed. It was one of the most important decisions I’ve made.

Being part of the Aboriginal student body at law school threw me in, both at UBC and as part of Osgoode’s Aboriginal Intensive Program, with the most welcoming, supportive and encouraging group of fellow students I had ever known. Again, mostly women, they accepted me as an Indigenous person and inspired me to strive to be a useful part of a struggle both personal and historical, a struggle that predates us, is bigger than us and will outlive us. My nascent Indigenous identity coalesced into an ambition to make a meaningful contribution.

Law Intrudes

The third ‘incident’ has been the development of the law on Métis rights, especially the three most important decisions to date from the Supreme Court of Canada: Powley, Manitoba Métis Federation and Daniels.

Powley was a watershed moment for the Métis. The courage, fortitude and skill of those who contributed to the ultimate success at the Supreme Court must be acknowledged and appreciated. But Supreme Court cases are rarely simply about winning and losing.

In Powley the Supreme Court created a three-part test to determine whether someone is Métis under section 35 of the constitution: ancestry, self-identity and community acceptance. The ‘Powley test’ is an example of how policies of denial and the ‘empty box’ theory of section 35 of the constitution force Indigenous people into the courts for recognition. Once there, they become entangled in the history, principles, objectives and compromises of Canada’s legal system. At the Supreme Court non-Indigenous judges, with an eye to policy implications and ‘workability’, create legal tests (for Aboriginal rights, Aboriginal title, infringement, etc.) that impose on and circumscribe Indigenous identity. Powley constitutes the Supreme Court’s foray into making and unmaking the Métis.

The Court’s Manitoba Métis Federation decision also poses significant challenges for the Métis, but at a personal level it underscored the power and significance of the Court’s moral authority. After over 100 years of government denial the Court’s confirmation that a terrible wrong was done to the Red River Métis had a profound effect on me. Once again ancestors’ names swirled around me—Ann McLennan, James Muir, Isabella Bird—ancestors whose scrip had failed to secure for them, as it had failed hundreds of other Métis children, the rich farm land at Red River that would have bound together the Métis through time and space. While reading the decision I repeatedly paused to think of their children and grandchildren, Colin and Isabella, my grandparents, who were denied their inheritance at Red River and who followed the displaced Peguis First Nation north hoping to carve out a new future between the rocks and swamps of Manitoba’s Interlake region.

No court decision can ever undo the wrong done to the Métis of Red River. No court decision can ever do justice to the strength, resilience, energy and optimism of the Métis who sought to rebuild their lives and provide a future for their descendants where and however possible. What the Supreme Court did in Manitoba Métis Federation was to silence denial—promises were broken, the Métis were not.

Finally, the Supreme Court’s 2016 Daniels decision. It was just before 7 a.m. on the west coast when I first read Daniels. The house was quiet, my family was asleep, including my baby girl leaning against my chest. I understood Daniels was a significant victory for the Métis and the potential importance of the decision for the thousands of Métis denied services and programs due to the jurisdictional dispute between the federal and provincial governments. Although I didn’t need these programs and services now, I knew that thousands of modern-day Métis did and that they would have benefited me and my family when my father died and left my mum living on the fringes of the Peguis reserve, scrambling to provide for eight children.

But at the same time, I could not imagine that any of my father’s ancestors who had made a home in the West long before the intrusion of the Canadian nation state would have celebrated a decision that confirmed the federal government’s exclusive legislation authority over their descendants, including me and my children.

Fractured Identity

Daniels closed my personal circle on Indigenous identity and Aboriginal law. It brought home how Canadian law, yesterday and today, circumscribes and oppresses Indigenous people through marginalization and validation.

Because of my Indigenous ancestry, based on Daniels I’m an ‘Indian’ under s. 91(24) of the constitution. But that legal, constitutional classification obfuscates more than it illuminates. My life experience is qualitatively different from my family members, friends, colleagues and clients who are status or non-status. Lumping us all together as ‘Indian’ (or Aboriginal or Indigenous) dishonors the diversity of lived experiences and smooths over Canada’s history of racism and oppression.

Under Powley and s. 35 of the constitution, I might be able to make out a case for being Métis. I meet the first part of the Powley test because I self-identify. My self-identification isn’t based on wearing a sash, speaking Michif or participating in any readily recognizable Métis cultural events. It’s because if I did not self-identify as Métis I would be denying my Indigenous ancestors. Their distinctive dreams and accomplishments would slip closer towards oblivion. I would have failed to fulfil my obligations to them. I would dishonor them and myself. I am unprepared to take that final step in the march of colonialism, so I am Métis.

But under Canadian law self-identification is only the first part of the test for being Métis. I, and tens of thousands of other Canadians, can and do meet this requirement. Next, I have to be able to trace my Indigenous ancestry back in time to an identifiable Métis community that existed in a specific place at the time the Canadian nation state gained ‘effective control’ over that place. This part of the Powley test imposes a temporal and geographical specificity on being Métis. Indigenous ancestry alone is not enough. To be Métis under Canadian law a person must be able connect their ancestry to a specific and identifiable historical Métis community. This aspect of the Powley test is too often lost on individuals who claim to be Métis under section 35 of the constitution.

Meeting this requirement is no easy task. There have been only a handful of successes in court. Importantly, those successes do not establish constitutional status for anyone with Indigenous ancestry. Instead, they confirm section 35 Métis status on the descendants of that particular Métis community.

If I brought my case to court, it is unlikely there would be disagreement about the existence of an identifiable historical Métis community at Red River. Based on my genealogy and the fact that my ancestors were some of the ‘half-breed children’ who received scrip under s. 31 of the Manitoba Act, I assume that I would be able to make out my personal connection to the historical Red River Métis community and therefore meet the second part of the Powley test.

I’m not across the finish line yet. I must also establish acceptance by the modern-day Red River Métis community. How do I do this? Although my mother and some of my siblings have migrated back to the Red River, I live over 1000 miles away in Vancouver. What if, for whatever reason, I do not want to be a member of a modern Métis organization? Why should a modern political organization be the gate-keeper to my, or anyone else’s, rights and identity? If I did decide to apply to join a Métis organization, which one? Who decides on the rules for membership and oversees their application? If I wanted to join, would I be accepted? My concern was, and continues to be, that through Powley the Supreme Court unknowingly sanctioned a replication of the worst aspects of the registration provisions of the Indian Act, but this time with Indigenous people bestowing and denying status. Because I have not joined a Métis organization I would likely fail the Powley test—in the eyes of Canadian law I’m not Métis.

For argument’s sake let’s say I did apply and was accepted into an organization purporting to represent the Red River Métis, maybe the Manitoba Métis Federation. Would that mean I’m Métis under section 35 of the constitution? Maybe not. An aspect of Powley that has trailed me like a brooding cloud, is the Court’s caution that Métis identity cannot be of ‘recent vintage’.

The Court’s dictum in Powley on Métis self-identification of recent vintage neutralizes its repeated recognition that colonialism has disrupted and vilified Indigenous communities. It ignores the Court’s role in shaping and legitimizing Indigenous identity. In Powley the Court held out the promise of a port of shelter for thousands of Métis scattered on the sea of colonialism. Its caution against recognizing Métis whose self-identification is of ‘recent vintage,’ has driven many Métis back out to sea, afraid of being labeled opportunists.

Growing up, neither I nor any of my family self-identified as Métis. For me, self-identification emerged through a combination of my sister’s family history research and attending law school. Is that recent vintage? Any Métis card I might obtain would certainly be something new. It is possible that after having met all three elements of the Powley test, a Canadian court would decide I am not Métis.

Silence

Through the workings of Canadian law the Red River Métis diaspora lost their land. Many, especially those with French ancestry, managed to maintain their sense of community, family and history. Others, such as my family, lost their community, their ancestors and their pride in where they had come from and who they were. They were left to remake themselves without a past. It left me as a child with a 95-year-old grandmother, born at St. Peter’s Parish on the Red River, living out her final days over 100 miles away in my Aunt’s backroom, silent as her grandchildren combed her long, grey hair.

Today Canadian law leaves me uncertain how to explain to my children who they are. Daniels, Powley and Manitoba Métis Federation do not define me or mine. Without the voice, the words, the stories of my ancestors, I am silent.

Thank you to my colleagues who supported and encouraged me in developing this essay. Their comments and insights have improved it immensely. Its remaining errors and shortcomings are mine.

DO NOT REPUBLISH WITHOUT PERMISSION

Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation.