We Own Ourselves: Critiquing the Racist Foundations and Implications of Métis Case Law

            There’s a ton of confusion surrounding Métis identity, even among other Indigenous Peoples and communities. Canadian courts are, unfortunately, not helping. Canadian case law has consistently focused on the ‘mixed-ancestry’ of the Métis and left the door open for false claims of Indigeneity that continue to harm both living Métis communities and other Indigenous Nations. The Canadian courts have taken it upon themselves to decide who we are, and by extension who is Indigenous. This conception of the Métis as a people focuses almost exclusively on broad tests and an understanding of Métis as “mixed.” This blood quantum, ancestry-based understanding of Métis identity is deeply problematic. While ancestry and family history are important elements of our identities, they are not the foundation. These broad interpretations of Métis identity have created a problematic space for race shifting and cultural appropriation that undermines Métis sovereignty. This space threatens not only the distinctiveness of the Métis, but also threatens to completely undermine conceptions of what it means to be Indigenous.

            First, who are the Métis? The Métis are a post-contact Indigenous People emerging from the intermarriage and kinship between Indigenous and European individuals, with a shared history, culture, and identity rooted in the historic North-West Territory and the Red River Valley. We have a unique sociopolitical and cultural identity, built communally and founded on shared experience, ancestry, land bases, and culture rather than mixed blood. We were also recognized by other Indigenous Nations as a distinct entity; we made alliances, fought, and traded with other Indigenous Peoples throughout our history. Métis families spread across the prairies following the Red River Resistance and the Northwest Resistance in what is referred to as the Red River diaspora. While this displacement and uncertainty surrounding identity are issues that persist, the Métis have continued to build communities and kinship with each other and other Indigenous Peoples throughout Western Canada.

            While this ‘nationalist’ conception of Métis identity is rooted in the historic Métis homeland, the idea does not mean that we believe there are no Métis people or communities living outside of the Prairies. It also does not negate the validity of mixed ancestry communities and their unique identities. It only means that those specifically claiming Métis identity should be able to trace their kinship networks and family ties back to the Red River and surrounding homeland. However, the Canadian government has co-opted these kinship-based identities and replaced them with broad, generalized definitions that rely on a simplified conception of the Métis as merely a mixed-race people.

            The courts have broadened their definitions of Métis to the point where nearly anyone can claim to be Métis, including many First Nations individuals. By focusing on ancestry alone and allowing ‘community connection’ to potentially be membership in a ‘Fétis’ organization, the courts have undermined the Red River Métis as a distinct, continuous, and recognized nation.

R v Powley, 2013 SCC 43

            The case that kicked off the confusion was R v Powley, heard by the Supreme Court of Canada (“SCC”) in 2003. The Powley decision was good in that it stated very clearly that Métis identity was not simply mixed Indigenous and European ancestry but was founded in distinct customs and group identity separate from their ancestral cultures.  However, it still created its own broad definition of Métis, leaving room for exploitation.

            In that case, two Métis men, Steve and Roddy Powley, were accused of hunting a moose without a license under the Ontario Game and Fish Act. The Powleys had shot and killed a moose for food and left it tagged with their Métis membership numbers. The men claimed that it was their Aboriginal right to hunt as Métis and won their case against the Government of Ontario in both primary acquittals and subsequent appeals. The case was a breakthrough for Métis rights, affirming that hunting for food was a constitutional right for the Métis as an Aboriginal People. The case also modified the Van der Peet test, which the courts use to determine Aboriginal rights. Powley added a “post-contact, pre-control” element to the framework specifically for Métis claimants, as well as a test for determining Métis identity.

            The Powley test for Métis identity sets out three criteria that a person must meet to fall under section 35 of the Constitution Act, 1982. First, the person must self-identify as Métis. Second, the person must have an ancestral connection to a historic Métis community that is separate from the adjacent Indigenous communities. Finally, the person must show that they have been accepted by a modern community with continuity to the same historic community.

            While these elements all contribute to Métis identity, they fail to define what the Court considers a historic Métis community. They also don’t identify how modern communities will demonstrate an adequate connection to a historic Métis community. The case also failed to recognize the Métis National Council’s [MNC] definition of who is Métis, which was created in consultation with Métis communities and organizations in 2002. This definition states, “‘Métis’ means a person who self-identifies as Métis, is distinct from other Aboriginal peoples, is of historic Métis Nation Ancestry and who is accepted by the Métis Nation.” The Métis Nation of Ontario, the governing body for the Métis in Sault Ste. Marie at the time of the case, was still under the MNC’s umbrella at the time. Instead of applying the definition created by the head political organization of the Métis Nation, the Court decided to unilaterally create one on its own. While the MNC definition is still broad and contains similar elements to the ones created by Powley, the lack of consideration of a community definition was still incredibly concerning. The case helped form a legal precedent for Métis rights, but the confusion surrounding identity persisted.

            Another troubling result of Powley is that the courts relied on this test to determine who was Indigenous. However, this portion of the Van der Peet test was created in a specific, Métis centred case. Applying this to other Indigenous communities creates a pan-Indigenous conception of identity under the law and suggests that all Indigenous peoples can be dealt with in the same way. This is simplistic and racist. While the Court later held that the test should only be used for the Métis in the 2022 case R v Desautel (see below), it has still allowed two decades of misrecognition and racism to stay ‘good law.’

Daniels v Canada, 2016, SCC 12

            The Daniels decision was a reference case that asked whether Métis and Non-Status Indians were considered “Indians” under section 91(24) of the Constitution Act. However, Daniels drew the most criticism for the Court’s analysis of Métis identity.

            While the Daniels decision affirmed Powley’s application in Canadian law, it led to more confusion regarding Métis identity and arguably undid the SCC’s reasoning in Powley. While it recognized that Métis and Non-Status Indians were considered Indians under section 91(24) of the Constitution, it broadened its definition of Métis identity to an alarming size. The Court claimed that the term Métis could be both a historic identity grounded in the Red River homeland or just a general term for anyone with mixed ancestry, no matter how small a degree.

            Daniels also took away the community-acceptance portion of the Powley test. While the Court recognized the colonial effects of residential schools and the Sixties Scoop as a reason for separation, it used those effects to determine that there was no reason to exclude people who didn’t have a connection to a living community. While recognizing the effects of colonization is valid to some extent, it ignores and invalidates the importance of community to our cultures. It is our duty as Métis to reconnect with our communities; it’s foundational to who we are. It also ignores the fact that living Métis communities exist and trace their history straight back to the Red River. Throwing away the community acceptance element allows non-Indigenous people who may not even care about or understand our nation to claim to be Métis in total isolation or in a community with others like them. While fulfilling all of Powley is still required to claim Métis/Aboriginal rights under section 35, Daniels allows what we call ‘Fétis’ (fake Métis) organizations to claim Indigenous identities.

            Daniels included a troublesome piece of non-binding judgment recognizing the “Métis of eastern Canada and northern Canada” and a community of Acadian-Mi’kmaq Métis in Nova Scotia. Fétis organizations have depended on this statement to ‘prove’ their claims. They cite Daniels to support their single-drop blood quantum conception of Indigeneity, often solely to claim what they see as the ‘perks’ of being Indigenous. While this is not a binding element of the judgement, statements like this — as well as the racist simplification of Métis as a mixed-race people — are used by Indigenous communities, mixed-race communities, and non-Indigenous groups to further their own interests and occasionally the interests of the white communities around them. This not only leads to the undermining of Métis sovereignty but also opens spaces for any group of people to claim Indigeneity.

R v Desautel, 2022 SCC 17

            The Supreme Court of Canada finally clarified some misapplication of Powley in the recent case of R v Desautel. In that case, a man from the Lakes Tribe in Washington shot an elk in British Columbia. Since he was a US citizen, he was charged under the Wildlife Act for hunting without a license and for hunting while not residing in the province. He defended on the grounds that he had an Aboriginal right to hunt within the traditional territory of his ancestors, the Sinixt, who hunted in BC as well as Washington.

            The case focused on whether Indigenous people outside Canada could hold and exercise an Aboriginal right in Canada. However, the Court also made some clarifications on the scope of the Powley test, holding that it was not a method of determining if a person was an Aboriginal “of Canada” but to help a court evaluate a person’s claims of Métis identity. This was a welcome finding since the courts often apply the Powley test to Indigenous claimants regardless of if they are Métis. In paragraph 57 of the judgement, the Court also noted that “not all people with both First Nations and European ancestry are Métis.” Huzzah! However, the old cases still stand, and the damage has already been done.

            Through racist and simplistic case law, the Government of Canada has claimed control and authority over Métis rights while leaving the responsibility of defining Métis identity to Métis communities themselves. However, these definitions often fail to encompass or even scratch the surface of what it means to be Métis, changing to suit the whims of Canada’s judicial system. Legal definitions of Métis identity can be confusing and vague, at times broad and others narrow. There is no specific legislative or administrative category that fully defines the Métis people. The precedent the courts have created in defining Métis identity is troubling and ignores the hard work of living Métis communities. By relying on conceptions of Métis as mixed, the SCC has legitimized racist and harmful claims to Métis identity while undermining Red River Métis sovereignty.

The Fétis

            While other organizations claim the title of Métis, they often rely entirely on the ‘mixed-race’ definition of Métis. Their claims to Métis identity are often founded in a single, distant Indigenous ancestor and often depend on a “hidden in plain sight” narrative. Many of these New Métis organizations rely entirely on these distant genealogical connections to determine their membership. The Métis Federation of Canada, for example, asks members to show “a historical blood connection to an Aboriginal and European couple.” The Canadian Métis Council defines Métis as, “someone who has genealogical ties to Aboriginal ancestry.” The Unama’ki Voyageur Métis Nation in Nova Scotia base their membership on any ‘proof of Native Aboriginal ancestry’ but privilege Scottish and Irish culture. The Eastern Woodland Métis Nation claim that their Acadian identity and history make them Métis, and incorrectly claim that the Acadians were descendants of French and Mi’kmaw people. A Québecois group, in the case Quebec (Procureure générale) c Séguin, unsuccessfully claimed Métis identity to access Aboriginal hunting rights. They pointed to single Indigenous ancestors ten to twelve generations back in their genealogy, sometimes not even from Québec. These organizations not only privilege blood quantum conceptions of Indigeneity, but also allow nearly anyone to make a claim for Métis identity. These are just a few organizations of many making claims, that the Canadian government refuses to condemn despite the protests of true Métis, First Nations, and Inuit communities.

            These organizations and others co-opt Red River Métis symbolism, culture, and history to ground their claims, despite not being connected to the Red River at all. They argue that they are the first Métis, as they are geographically closer to the point of European contact; however, they depend on Red River culture and history to explain their own cultures and identities, despite these markers only emerging in the 1800s. They lack the ties to true historic communities and point back to distant ancestors, or even a single ancestor from hundreds of years ago, to ‘prove’ their right to Indigeneity. These communities not only appropriate a culture that isn’t their own, but they also rely on colonial definitions of what it means to be Métis to ground their claims, citing the Supreme Court of Canada as a basis for who they are. This is unacceptable.

            Mixed ancestry is not enough. By relying on the ‘Indigenous ancestry’ logic, nearly anyone, Indigenous or not, can claim to be Métis and self-identify under this model. Métis is not a “catch-all-term,” in the words of Chris Andersen, nor a “bin” to dump everyone who doesn’t fit the mould. We are a living people in living communities. If everyone is Métis, the word no longer has any meaning.

            While no Fétis organization has yet been recognized by the courts, the broad definitions and unclear precedent leave the door open for these problematic organizations to take opportunities and identities away from true Métis communities. The Fétis also harm Inuit and First Nations communities, often placing themselves in what they see as competition for hunting and resource rights despite having no claim to them. This not only goes against Métis teachings but goes against our history of kinship and cooperation with other Nations.

            People have the right to reconnect to their communities. Many of us have been separated from our communities through the effects of colonization, the Red River diaspora, the Sixties Scoop, and residential schools. I personally am rebuilding connections lost with the death of my grandmother and great-grandmother when I was young. None of this is meant to shame people who are reconnecting, but to emphasize that while Métis people have Métis ancestors, we are also a part of living, breathing, continuous communities. It is an obligation in our teachings to build community and kinship with these living communities and to ground ourselves in service to our Nations.

            To find out more about Métis identity, check out the following fantastic resources from Métis academics:

• Andersen, Chris, “Métis:” Race, Recognition, and the Struggle for Indigenous Peoplehood (Vancouver: UBC Press, 2014).

• Cambell, Maria, Halfbreed (Toronto: McClelland & Stewart, 1973).Gaudry, Adam, “Are the Métis Treaty People?” (7 January 2017) online (video): YouTube, <https://www.youtube.com/watch?v=oU8b5QFB53g> [perma.cc/2YME-HQW4].

• Vowel, Chelsea, Indigenous Writes: a Guide to First Nations, Métis, and Inuit Issues in Canada (Winnipeg: Highwater Press, 2016).

References

LEGISLATION

The Constitution Act 1982, s 35.

Manitoba Act 1870, Enactment 2, 33 Vict, c 3, s 31 (Can) <https://www.justice.gc.ca/eng/rp-pr/csj-sjc/constitution/lawreg-loireg/p1t21.html> [perma.cc/7J4H-8J5Z].

Métis Settlements Act, RSA 2000, c M-14, s 74.

The Métis Act, SS 2001, c M-14.01.

JURISPRUDENCE

Daniels v Canada (Indian Affairs and Northern Development), 2016 SCC 12.

Manitoba Métis Federation v Canada (Attorney General), 2013 SCC 14.

R v Desautel, 2022 SCC 17.

R v Powley, 2003 SCC 43.

Quebec (Procureure générale) c Séguin, 2016 QCCS 1881.

SECONDARY MATERIAL: ARTICLES

Adese, Jennifer, “R is for Métis” (2011) 25 Topia: Can J Cultural Studies 203.

---, Zoe Todd, & Shaun Stevenson, “Mediating Métis Identity: An Interview with Jennifer Adese and Zoe Todd” (2017) 7:1 Indigenous Matters: Cultures, Technologies, Mediations 1.

Belcourt, Tony, “FOR THE RECORD…On Métis Identity and Citizenship Within the Métis Nation” (2013) 2:2 Aboriginal Policy Studies 128.

Chartrand, Larry N, “The Definition of Métis Peoples in Section 35(2) of the Constitution Act, 1982” (2004) 67:1 Sask L Rev 209.

Doudry, Patrick C, “Canadian Métis Identity: A Pattern of Evolution” (1983) 78:1 Anthropos 71.

Gaudry, Adam, “Communing with the Dead: The ‘New Métis,’ Métis Identity Appropriation, and the Displacement of Living Métis Culture” (2018) 42:2 Am Indian Q 162.

---, “The Métis-ization of Canada: The Process of Claiming Louis Riel, Métissage, and the Métis People as Canada’s Mythical Origin” (2013) 2:2 Aboriginal Policy Studies 64.

--- & Chris Andersen, “Daniels v Canada: Racialized Legacies, Settler Self-Indigenization and the Denial of Indigenous Peoplehood” (2016) 36 Topia: Can J Cultural Studies 19.

--- & Darryl Leroux, “White Settler Revisionism and Making Métis Everywhere: The Evocation of Métissage in Quebec and Nova Scotia” (2017) 3:1 Critical Ethnic Studies 116.

O’Toole, Darren, “Wiisaakodewininiwag ga-nanaakonaawaad: Jiibe-Giizhikwe, Racial Homeopathy, and ‘Eastern Métis’ Identity Claims” (2020) 8:2 Aboriginal Policy Studies 68.

Sawchuk, Joe, “Negotiating an Identity: Métis Political Organization, the Canadian Government, and Competing Concepts of Aboriginality” (2001) 25:1 Am Indian Q 73.

Vowel, Chelsea & Darryl Leroux, “White Settler Antipathy and the Daniels Decision” (2016) 36 Topia: Can J Cultural Studies 19.

SECONDARY MATERIAL: MONOGRAPHS

Adams, Christopher, Gregg Dahl, & Ian Peach, eds, Métis in Canada: History, Identity, Law & Politics (Edmonton: The University of Alberta Press, 2013).

Andersen, Chris, “Métis:” Race, Recognition, and the Struggle for Indigenous Peoplehood (Vancouver: UBC Press, 2014).

Cambell, Maria, Halfbreed (Toronto: McClelland & Stewart, 1973).

Drake, Karen & Brenda L Gunn, eds, Renewing Relationships: Indigenous Peoples and Canada (Saskatoon: Wiyaisiwewin Mikiwahp Native Law Centre, 2019).

McNeil, Keith & Naomi Metallic, eds, Canadian Native Law Reporter [2020] CLNR Special Edition: Judicial Tales Retold: Reimagining Indigenous Rights Jurisprudence (Saskatoon: Indigenous Law Centre, 2020).

Palmater, Pamela D, Beyond Blood: Rethinking Indigenous Identity (Saskatoon: Purich Publishing, 2011).

Reynolds, Jim, Aboriginal Peoples and the Law: A Critical Introduction (Saskatoon: Purich Books, 2018).

Teillet, Jean, Métis Law in Canada (Vancouver: Pape Salter Teillet LLP, 2013) (loose-leaf updated 2017, release 1), ch 1.

---. The Northwest is Our Mother (Toronto: Patrick Crean Editors, HarperCollins Publishers Ltd, 2019) at 473.

---. “The Winds of Change: Métis Rights After Powley, Taku, and Haida” in Ute Lischke & David T McNab, eds, The Long Journey of a Forgotten People: Métis Identities & Family Histories (Waterloo, Ontario: Wilfred Laurier University Press, 2007) 55.

Wilson, Frederica & Melanie Mallet, eds, Métis-Crown Relations: Rights, Identity, Jurisdiction, and Governance (Toronto: Irwin Law Inc, 2008).

Woodward, Jack, Aboriginal Law in Canada

Vowel, Chelsea, Indigenous Writes: a Guide to First Nations, Métis, and Inuit Issues in Canada (Winnipeg: Highwater Press, 2016).

SECONDARY MATERIALS: ONLINE

Clarke, George Elliot, “‘Indigenous Blacks’: An Irreconcilable Identity?” (2016), online: Afro-Métis <http://afrometis.ca/indigenous-blacks-an-irreconcilable-identity/> [perma.cc/RV24-7T89].

Gaudry, Adam, “Are the Métis Treaty People?” (7 January 2017) online (video): YouTube, <https://www.youtube.com/watch?v=oU8b5QFB53g> [perma.cc/2YME-HQW4].

The Métis Nation of Alberta, “Guidelines and Requirements” (2022), online: Métis Nation of Alberta <http://albertametis.com/> [perma.cc/6DF6-UEXA].  

The Métis National Council, “Citizenship” (2022), online: Métis National Council <https://www.metisnation.ca/about/citizenship> [perma.cc/5GDR-AJ9K].

GREY LITERATURE

Royal Commission on Aboriginal Peoples, The Report of the Royal Commission on Aboriginal Peoples (August 1991) (Chairs: René Dussault & Georges Eramus).

Senate, Standing Senate Committee on Aboriginal Peoples, “The People Who Own Themselves:” Recognition of Métis Identity in Canada (June 2013) (Chair: Vernon White).

OTHER MATERIALS

Teillet, Jean & Claudette Commanda, “Self-Determination and the Right to Identity” (Keynote Address delivered at the Indigenous Bar Association 34th Annual Conference, Montréal, 14 October 2022) [unpublished].