The Canadian colonial project intertwines Indigenous identity with the development of Aboriginal law. Oppression and reconciliation partner to classify, legitimize and delegitimize Indigenous people. For every Indigenous person the law intrudes on, whether they see themselves as part of the “Indian, Inuit and Métis peoples of Canada” under section 35 of the constitution, as status or non-status, as “on-reserve” or “off-reserve,” this will shape and at times distort their sense of self. The complex relationship between Canadian law and Indigenous identity is difficult to explain or appreciate in the abstract. As with any powerful historical force, at its core colonialism is personal.
This is my story.
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 conversations heard around the kitchen table. Slowly I came to understand that we had used to live in the bush north of the Peguis First Nation reserve. At this point 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.
Three incidents complicated 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 race around hay bales in the field behind my mum’s house, but the family tree my sister produced had a more lasting effect. My mother’s side softened my resentment for being raised Roman Catholic. 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 who had worked for the Northwest Company and the Hudson’s Bay Company (mostly Scots, with the odd Englishman and French Canadian thrown in). 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 that I was familiar with from Canadian history. Those such as James Curtis Bird and John Thomas were immortalized with entries in the Dictionary of Canadian Biography, the ultimate confirmation of historical significance. But 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—and 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, good LSAT score and a PhD in history, 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 the box for the general category. Then the law school phoned. 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 was not taking a place from anyone, I agreed. It was one of the most important decisions I have made.
Being part of the Indigenous student body at law school threw me in 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.
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. The Powley decision, which established the test for Métis rights under section 35 of the constitution, 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. The three-part “Powley test” (ancestry, self-identity and community acceptance) is an example of how long-held government policies of denial 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 that define and distort Indigenous identity. Powley constitutes the Supreme Court’s foray into making and unmaking the Métis.
The Supreme Court’s Manitoba Métis Federation decision also poses significant challenges for the Métis, but at a personal level it underscores the power and significance of the court’s moral authority. After over one hundred years of government denial, the court confirmed that a terrible wrong was done to the Red River Métis in the government’s failure to fulfill the promises made to them when Manitoba entered Confederation in 1870.
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 farmland 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.
It was just before seven a.m. on the west coast on April 14, 2016 when I first read the Supreme Court’s decision in Daniels by which it confirmed the federal government’s jurisdiction over the Métis and non-status Indians. The house was quiet, my family was asleep, including my baby girl leaning against my chest. I understood Daniels as 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 did not need these programs and services at the time, I knew that thousands of modern-day Métis did. And I knew they would have benefited my family when my father died and my mum moved us all into an abandoned schoolhouse and scrambled to provide for eight children.
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 section 91(24) of the constitution. But that legal, constitutional classification obfuscates more than it illuminates. My life experience is qualitatively different from that of my family members, friends, colleagues and clients who are status or non-status. Lumping us all together as “Indian” (or Aboriginal or Indigenous) dishonours the diversity of lived experiences and smooths over Canada’s history of racism and oppression.
Under Powley and section 35 of the constitution, I might be able to make a case for being Métis. I meet the first part of the Powley test because I self-identify. My self-identification is not based on wearing a sash or speaking Michif. It is because if I did not self-identify as Métis I would be denying my ancestors. Their distinctive dreams and accomplishments would slip closer to oblivion. I would have failed to fulfill my obligations to them. I would dishonour 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. To be Métis under the constitution I must trace my Indigenous ancestry back in time to a specific 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. Being descended from the Red River Métis, I would probably meet this second part of the Powley test, but I would still have to 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 Red River, I live over one thousand 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 gatekeeper 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 am not Métis. If 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 am 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 caution 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 labelled opportunists.
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 came from and who they were. They were left to remake themselves without a past. It left me as a child with a ninety-five-year-old grandmother, born at St. Peter’s Parish on the Red River, living out her final days over one hundred fifty kilometres away in my aunt’s back room, silent as her grandchildren combed her long, grey hair.
Today Canadian law leaves me uncertain of 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.
In 2020 I reluctantly made the decision to become a member of the Manitoba Métis Federation. I joined for two reasons. First, having my Manitoba Métis Federation citizenship immunizes me from being unfairly lumped in with “pretendians” who falsely claim to be Indigenous and who have caused much pain and loss. Second, and most importantly, I did it for my kids. I realized that an integral part of healing colonialism’s wounds is giving them the space and confidence to speak for themselves.