White Settler Antipathy and the Daniels Decision

Abstract

In this short response to Daniels v. Canada, we set out to accomplish two tasks. First, we provide an overview of the decision, with a focus on clarifying its limited reach. In particular, we distinguish between jurisdictional questions under section 91(24) of the Constitution Act, 1867, which Daniels addresses directly, and Aboriginal rights as encoded in section 35 of the Constitution Act, 1982, which is outside the reach of Daniels. Second, after confronting the confusion brought forth by Daniels, we examine several different cases of nascent organizations in Québec claiming Aboriginal rights as either self-declared Métis or non-status Indians, and analyze some of their responses to the Daniels decision. We proceed to argue that in their reliance on antipathy towards Indigenous peoples, these organizations exemplify settler nativist tactics that ultimately undermine Indigenous self-determination.

A story of identity: a cautionary tale

“…However, the MNC represents all Métis who trace roots to the historic Red River settlement, and is primarily located in modern-day Alberta, Saskatchewan, Manitoba, Ontario, British Columbia, and the Northwest Territories. “Not a single historic Métis community east of Ontario has ever been proven in the Canadian courts” (Vowel & Leroux, 2016, p. 34). In one small way, the Powley decision has supported the idea that Métis refers to the history, events, leaders, territories, language, and culture associated with the growth of the buffalo hunting and trading Métis of the northern Plains, in particular during the period between the beginning of the Métis buffalo brigades in the early nineteenth century and the 1885 North West Uprising.…”

“…It did not re-determine or define who is Métis or non-status Indian. As Vowel and Leroux (2016) note, “the decision is quite narrow, and simply clarifies which level of government non-status Indians and Métis must turn to when seeking legislative action. Asserting Aboriginal rights remains as difficult as always” (p. 33).…”

“…The Powley test delineates more criteria to be met in order for a person to realise their Aboriginal rights. Neither of the court rulings address Métis identity through kinship, community, and peoplehood as articulated by many Métis scholars (Andersen, 2014; Gaudry & Andersen, 2016; Vowel, 2016; Vowel & Leroux, 2016). Gaudry and Andersen (2016) contend that as important as the Daniels decision is and the Powley decision before it, “these developments should be understood and used, from a policy perspective, as building blocks for affirming Métis nationhood and the self-determining power of the Métis Nation” (p. 21).…”

“…The Canadian government’s historical practices and policies of racialisation in defining Métis as mixed race of European and Indigenous bloodlines essentially suggest that “anyone with even the most tenuous claim to a First Nations ancestor” (Vowel, 2016, p. 43) can often claim Métis, and that “the concept of hybridity can be used to find Métis wherever we look” (Andersen, 2014, p. 58). Adding to this is the growing misinterpretation or deliberate interpretation of the Daniels case to circumvent the Powley test and define Métis to include anyone with Indigenous ancestry who self identifies and is accepted by others who self-identify (Gaudry & Andersen, 2016, p. 24; Vowel & Leroux, 2016, p. 38). As one reviewer of this article noted, such practices feed into the ongoing “larger abuse of Métis identity in academia”.…”

Le révisionnisme historique et la création des métis de l’est

“…Ces deux organismes, qui disaient représenter plus de 20 000 personnes en 2014, revendiquent leur reconnaissance officielle en vertu de la Loi constitutionnelle de 1982 et des balises offertes par l'arrêt Powley de la Cour suprême du Canada en 2003 (Vowel et Leroux, 2016). Toutefois, les efforts de ces deux organismes se butent à l'opposition concertée des leaders de la Nation Métisse, un peuple autochtone dont le territoire couvre en partie aujourd'hui le Manitoba, la Saskatchewan, l'Alberta, le Dakota du Nord, le Montana, ainsi que des parties de l'Ontario et de la Colombie-Britannique (Innes, 2013 ;Andersen, 2014).…”