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Number Th Irty-Six Fall 2016 Number T irty-six Fall 2016 FEATURE SECTION: REFLECTIONS ON THE DANIELS DECISION Jennifer Adese A Tale of Two Constitutions: Métis Nationhood and Section 35(2)’s Impact on Interpretations of Daniels ABSTRACT 36 TOPIA Spurious claims to “Métisness,” or those claiming a Métis identity, have been on the rise since the Daniels decision, wherein the Supreme Court determined some 7 measure of federal responsibility to Métis people. Yet the justices in the decision neither conf rmed nor denied that people making claims to Métisness (often) on the basis of distant Indigenous ancestry, are people for whom federal responsibility extends. T is is due to (what appears on the surface to be) a lack of clarity around the def nition of Métis as it exists in section 35 of the Canadian Constitution of 1982. In light of this, this article of ers a brief discussion of the Powley case, the f rst major Supreme Court decision pertaining to Métis rights and the f rst that sought to of er a pathway for determining who is Métis in the context of section 35(2) “Aboriginal rights.” It then takes a chronological step backwards to the time of constitutional negotiations to discuss the situation of Métis within the category of Aboriginal peoples. T e article then ties this discussion into the recent Supreme Court decision in Daniels v. Canada. I argue that political activists put forth a specif c def nition of Métis rooted in an understanding of Métis nationhood that was not formally entrenched in the 1982 Constitution; this def nition should be embraced and acknowledged to appropriately narrow the meaning of Métis in section 35. T is would in turn have implications for Daniels and the federal govern- ment’s responsibility to the Métis Nation. RÉSUMÉ Les fausses prétentions à l’identité métisse, ou le nombre de personnes revendiquant cette identité, a été à la hausse depuis la décision Daniels, dans laquelle la Cour suprême a déterminé une part de responsabilité fédérale à l’égard des Métis. Cela dit, les juges n’ont ni conf rmé, ni nié que les personnes revendiquant le statut métis (souvent) sur la base d’une lointaine ascendance autochtone relèvent ef ectivement d’une responsabilité fédérale. Ceci est attribuable à un apparent manque de clarté dans la déf nition de « Métis » à l’article 35 de la constitution canadienne de 1982. À la lumière de cela, nous analysons brièvement l’af aire Powley, soit la première grande décision de la Cour suprême concernant les droits des Métis et la première tentative de déf nition de l’identité métisse au paragraphe 2 de l’article 35, « Droits des peuples autochtones du Canada ». Pour ce faire, nous revenons en arrière pour examiner les négociations constitutionnelles au sujet des Métis en tant que caté- gorie de peuple autochtone. Nous relions ensuite la discussion à la décision récem- ment rendue par la Cour suprême dans Daniels c. Canada. Nous soutenons enf n que les militants et militantes politiques ont proposé une déf nition particulière de « Métis » attachée à une conception de la nation métisse qui n’est pas of ciellement enchâssée à la Loi constitutionnelle de 1982. Cette conception qui doit être adoptée et reconnue de façon à restreindre justement le sens de « Métis » à l’article 35. TOPIA 36 TOPIA Cette reconnaissance aurait alors des répercussions sur la décision Daniels et sur la responsabilité du gouvernement fédéral à l’égard de la nation métisse. KEYWORDS: 8 Métis; activism; section 35; nationhood; Indigenous; decolonization; self-def nition; politics; law ¤ T e implications of the recent Daniels decision (2016) are monumental. For the f rst time in the history of Métis-Canadian relations, there is a clear declaration of federal responsibility to and for Métis people. In April 2016, the 17-year-long court battle headed up by Harry Daniels, Daniels v. Canada (Indian Af airs and Northern Development) f nally came to a conclusion. Daniels, a Métis Nation member and one of the founding members of the Saskatchewan Métis Society, along with co- appellants Gabriel Daniels (Harry’s son), Leah Gardner, Terry Joudrey and the Congress of Aboriginal Peoples were successful in their claim that the Court should af rm that the word “Indian” in section 91(24) of Canada’s Constitution Act (1867) is not restricted to people deemed “status Indians” as def ned by the later 1876 Indian Act. Section 91(24) indicates that “Indians, and Lands reserved for the Indi- ans” are the responsibility of the federal government. Section 91 overall is concerned with the delineation of powers between the federal and provincial governments. Since the passage of its f rst Constitution in 1867, the Canadian government has more often than not tried to def ect any sort of legislative obligation for and to Métis people, claiming that Métis are not Indians and thus the federal government does not hold any special obligation to them. For some, the passage of the revised 1982 Constitution Act has often been read as marking a shift in this position by the federal government, ref ected in the recognition of Métis as one of three bodies of Aboriginal people within section 35(2) of the Constitution. At the time, how- ever, the federal government still insisted that Métis were, ultimately, a provincial responsibility (see Sanders 1987). T e Daniels decision is in reality the moment in which the federal government’s legislative responsibility for and to Métis is made unavoidably clear. T e Supreme Court recognizes, with the unanimous Daniels decision, that in addition to “status Indians,” section 91(24) also refers to Métis people and “non-status” Indians (the latter being Indians without status under the Indian Act). What the Supreme Court did not do, however, is entangle itself with def ning “Métis.” While it did not answer what it was not asked to, both directly and indi- rectly it af rmed a def nition of Métis that foreclosed recognition of Métis people as a distinct Indigenous nation. T e Supreme Court argued, “T ere is no need to delineate which mixed-ancestry communities are Métis and which are non-status Indians. T ey are all ‘Indians’ under s. 91(24) by virtue of the fact that they are all 36 TOPIA Aboriginal peoples” (Daniels v. Canada 2016). T ey state, in essence, that the ques- tion of who is Métis and who is non-status Indian is a moot point because 1982’s “Aboriginal” is the new language for 1867’s “Indian.” T e major dif erence between 9 the two, however, is that while Aboriginal people themselves were absent from the crafting of the 1867 def nition of “Indian,” the process of def ning “Aboriginal people” in 1982 is supposed to have been a high watermark of consultation and inclusion. If Daniels insists that the federal government is responsible to people as 1867 Indians by way of those people being 1982 Aboriginal people, the court must necessarily address how Aboriginality is def ned—and thus how Métis is def ned. Despite its claim otherwise, the Daniels decision upholds an indirect def nition of Métis by deferring to a precedent-setting source for def ning who is a Métis rights- holder. It explicitly refers to the Supreme Court case R. v. Powley (2003), a case that produced a problematic litmus test that is considered the interpretive framework for determining who is Métis, in light of the guarantee of rights as indicated in section 35(2). By referencing Powley, the justices in Daniels (intentionally or not) implicate themselves in debates over what “Métis” means in the context of section 35. Both Powley and Daniels are ultimately underpinned by a reliance on notions of Métis as hybrid—as people of “mixed ancestry.” T e problem with this is two-foled. First, it upholds a fallacious race-based understanding of Métisness that at its core undermines Métis people’s Indigeneity, and second, upholds the notion that Métis in the context of the Constitution does not have a clear def nition – and in doing so ignores the dynamics of Métis political activism at the time of constitutional negotiations. T e purpose of this short article is to address these problems and to argue that the Daniels decision tangentially upholds a def nition of Métis that is not in keeping with the spirit and intent of Métis consultation and inclusion; it instead further reinforces and extends the state’s denial of Métis nationhood through Canada’s juridical arm. T e central question that animates this discussion is, what does an examination of def nitions of Métis as put forth during the passage of the 1982 Constitution tell us about how those responsible for the Constitution’s very entrenchment conceived of those def nitions? T is article begins by of ering a brief discussion of the Powley case, the f rst major Supreme Court decision pertaining to Métis rights and the f rst that sought to of er a pathway for determining who is Métis in the context of section 35(2) “Aboriginal rights.” Next, I take a chronological step backwards to the time of constitutional negotiations to discuss the situation of Métis within the category of Aboriginal peoples before tying this discussion back into the Dan- iels decision. A contextualized reading of constitutional negotiations around 1982 reveals that were it not for the government’s initial refusal to accept the def nition given by the organization negotiating the terms of Métis inclusion in the Constitu- tion, the question of who is Métis would not be the legal, political, cultural, social and personal hot potato that it has become.
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