The Power of Legal and Historical Fiction(s): The Daniels Decision and the Enduring Influence of Colonial Ideology

Abstract

It’s been several months since the Supreme Court of Canada (SCC) rendered its judgment in Daniels v. Canada (2016), affirming that the term “Indian” in s. 91(24) of the Constitution Act (1867) includes Métis and Non-Status Indians. There is a general hope that the decision marks a turning point for Métis and Non-Status Indians within Canada’s colonial structures. I’m not certain this optimism is justified. The judgment was reached based on the types of historical evidence presented and, consequently, there are a couple of statements within the written judgment that give me pause to question how the evidence regarding the histories of Métis and Non-Status Indians were presented to, and then interpreted by, the justices. Bearing in mind that the crux of the case rested on the linguistic meaning and evolution of the term “Indian” in Canadian society through law and policy, evidence was introduced about how the term was used at various points in the past, as well as the context of that usage in order to demonstrate the evolution of a Canadian legal and historical fiction that increasingly restricted the idea of what an Indian was. What the SCC did with the Daniels Decision is reverse that restrictive trend for Indians while constructing new problems.

Encountering the “Other”: The Search for Indigenous Identity in Québécois Cinema

“…The fact that new claims to a Métis identity have piled up so quickly has led to widespread confusion among non-Indigenous people, who don't tend to know how Indigenous peoples traditionally recognize kinship and belonging. 13 Furthermore, while Andersen prefers looking at Métis in "political terms of historical, people-based relationships-rather than in post-colonizing terms of mixedness," according to Leroux, Eastern Canadians have, for the most part, very little knowledge or interest in these kinds of relationships, and their act of self-indigenizing is often tied to economic motives. 14 Along the same lines, in her article on the Daniels Decision (2016), Brenda Macdougall questions the efforts of the Supreme Court bent on defining "Métis and Non-Status Indians by a new form of legal and historical fiction but in this case based on a criteria of mixedness," thus not taking into account the ways in which Métis peoples define themselves today.…”

“…14 Along the same lines, in her article on the Daniels Decision (2016), Brenda Macdougall questions the efforts of the Supreme Court bent on defining "Métis and Non-Status Indians by a new form of legal and historical fiction but in this case based on a criteria of mixedness," thus not taking into account the ways in which Métis peoples define themselves today. 15 However, Law professor Sébastien Malette, along with anthropologist Michel Bouchard and historian Guillaume Marcotte in their prize-winning book Les Bois-Brûlés de l'Outaouais. Une étude ethnoculturelle des Métis de la Gatineau (2019), "conclusively demonstrates that a Métis community emerged in early nineteenth century Québec" through "strong scholarly commitment to archival and ethnographic evidence."…”

Healing Waters and Buffalo Bones: Using Women’s Histories to challenge the Patriarchal Narrative of Lac Ste. Anne, Alberta

“…Secondly, although limited or overly hagiographical, Catholic Sisters in western North America have also received growing interest (Butler 2012). Finally, following the Daniels v. Canada decision, the field of Métis studies has grown exponentially and more in-depth debates concerning the roles of women have been investigated (Brown 1983;Macdougall 2016). To present an in-depth account of each of these historiographies would be extremely difficult and exceed the confines of this paper.…”

From self‐determination to service delivery: Assessing Indigenous inclusion in municipal governance in Canada

“…What is significant about non‐status Indians and Metis is that a significant number of them reside in urban centres across Canada. The long term impact of the Daniels decision and how federal responsibility for urban Indigenous Peoples will impact on their representation, remains unclear (Macdougall ).…”