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      Metis and Non-Status Indians
      Win at the Supreme Court

      By Aaron Mercredi

      A Big Victory For Indigenous People in Canada
      A Important Step Forward for Working Class Struggle

      On April 14th, Métis and non-status Indians won a significant legal battle against the government of Canada. In a landmark decision, the Supreme Court of Canada ruled that the federal government, not the provinces or any other body, is responsible for the protection of Métis and non-status Indian rights.

      The decision came out of a court case launched in 1999 by Harry Daniels, a Métis who also negotiated for the inclusion of the rights of Métis people in section 35 of the Constitution Act of 1982, along with Dwight Dorey, national chief of the Congress of Aboriginal Peoples (CAP). They sought three declarations in the case: (1) that Métis and non-status Indians are “Indians” under s.91(24) of the Constitution Act of 1867; (2) that the federal Crown owes a fiduciary duty to Métis and non-status Indians; and (3) that Métis and non-status Indians have the right to be consulted with.The court ruled in favour of the first declaration, stating that the Constitution Act of 1867 does not just refer to First Nations with registered Indian status and Inuit peoples, but to all Aboriginal peoples in Canada, including Métis and non-status Indians. However, the second and third were found to be redundant. Previous high-profile legal battles have already established the other declarations. The judge noted that the result of the Delmaguukw and Manitoba Métis Federation cases had established the fiduciary relationship between the federal government and Métis and non-status Indians based on Indigenous pre-existence, while the Haida, Tsilquotin and Powley decisions already recognized the Crown duty to negotiate with Métis and non-status Indian communities when Aboriginal rights are engaged. The first declaration, however, changes the dynamic playing field and settles what Judge Abella described as a a “live controversy between parties”.

      Behind the 'live controversy'

      To better understand the impact of this legal victory, it is important to take a look at the Métis and non-status Indians in Canada. Métis roots are traced back to the very beginning of the fur trade. They were the mixed-blood children of fur traders from the North West Company and the Hudson’s Bay Company and Cree, Ojibway or Saulteaux women. As people of mixed ancestry increased in number and married amongst themselves, they developed a distinct culture, neither European nor Indian, but a fusion of the two and a new identity as Métis. Because of their position in the fur trade, having the knowledge of European and Indigenous languages, the Métis were used as a cheap labour force, from the direct gathering of the raw materials to the intermediary positions, and the HBC was able to use its power over them to exploit their labour more than the European immigrants. When the HBC was negotiating the transfer of Rupert's Land in a deal with Canada, the Métis of the Red River Valley formed a provisional government under the leadership of Louis Riel in 1869. While the new Canadian government tried to undermine the Métis, Riel negotiated the establishment of Manitoba as a new Canadian province with the rights granted to the Métis. In the aftermath of the events of the Red River, Riel fled the country as the government sought his arrest for treason. Many Métis were also forced to flee the Red River Valley to what is now the province of Saskatchewan. It was there, in 1885, where Riel, returned from the United States, alongside Gabriel Dumont, led a popular movement including Métis, English settlers and the Cree to pursue their rights in Canada's continued expansion westward. They made a historic stand, but this pursuit ultimately resulted in the military defeat at the Battle of Batoche, where the Métis were outgunned by the newly-formed Canadian military. Riel was hanged, Dumont fled to the United States and the rest of the Métis that were involved in the resistance were persecuted or fled.

      Status and Treaties

      While Canada attempted to extinguish Aboriginal title through treaties for First Nations, they introduced the land scrip for the Métis. Instead of a collective extinguishment of title, Canada dealt with the Métis on an individual basis. The premise of the scrip was to extinguish the Aboriginal title of the Métis by awarding a certificate redeemable for land or money. This policy is how many Métis became known as 'road-allowance people', living in makeshift communities and settlements. Government policy is also why Métis join the rest of the Indigenous population at the top of the statistics for health and housing problems, incarceration rates, unemployment and discrimination. Métis children were forced alongside First Nation and Inuit children to attend residential schools. According to the 2011 Canada census, there were 451,785 Métis people counted in Canada.

      The 2011 Canada census also counted 213,900 non-status Indians in the country. A 'non-status Indian' is a legal term for a First Nations person who is either not registered with the federal government, for whatever reason, or not registered to a band which signed a treaty with the Crown. Not being registered with the federal government could be the result of many of the circumstances of colonization. For example, if a member of a First Nation was away hunting or trapping during the original registry, they were not registered as a 'status' Indian. Up until 1955, serving in the armed forces, obtaining a university degree or becoming a professional such as a doctor or a lawyer meant automatically losing one's status. For many years, a brutal section of the Indian Act also stripped First Nations' women of their status if they married men who were not status Indians themselves. Losing status, also known as becoming 'enfranchised', meant that person was not compensated or supported, that their band membership is removed and they lose access to their community. The Indian rights that person held were lost. Their children would not have status either, meaning their ties to their ancestry and identity were broken.

      What the Ruling means

      While Métis and Non-Status Indians have been dealing with the effects of colonization and fighting for decades for rights that they have been stripped of, they have always been caught in a tug-of-war battle between the federal government and the provinces. As neither fall under the category of the Indian Act, the federal government has consistently denied its responsibility towards them. The Supreme Court described it as a 'jurisdictional wasteland', but the final ruling clearly says that “it is the federal government to whom they can turn.”

      In no way is this article trying to paint a rosy picture of the current state of Canada's relationship to First Nations, or that now because of this ruling Canada will treat Métis and non-status Indians the same as First Nations, fixing everything. The continued neglect, trampling of rights, and ongoing theft of Native land are part of this country's history and present. Canadian colonialism is alive and well and the reason for the deplorable conditions among First Nations communities. What is important, with this recent victory, is that, although it will be a long tough road ahead, that it is a step forward for Metis and non-status Indians in the fight for Indigenous rights by squarely pointing at the federal government for responsibility. This, in turn, is a step forward for all Indigenous people in Canada.

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