The Federal Court of Appeal has upheld an earlier ruling that says the Métis are Indians in constitutional terms, which implies a higher standard of federal responsibility. It rejected, however, the notion non-status Indians are in fact Indians under the Constitution, although it said Parliament could grant such status under some circumstances.
The decision is merely the latest in a series of court rulings that have empowered Canada’s First Nations, including the Métis, on a wide range of issues, particularly their right to be consulted on matters affecting their unique interests.
After more than a century as losers in Confederation, aboriginal peoples are now winning many of their legal wars.
A major exception, however, is the status of so-called non-status Indians. As a result of last week’s decision, they will continue to exist in a twilight zone as Indians who aren’t really Indians in any legal or constitutional sense.
They may look like Indians, identify as Indians, associate with Indians, participate in Indian cultural affairs and pass on their Indian oral histories, they may even speak an aboriginal language, but as far as the federal government is concerned, they aren’t Indians.
This paradox and historic injustice traces its roots to the 19th century and the beginning of the treaty system. A status Indian was someone registered under the Indian Act as an Indian, but for a variety of reasons many aboriginals never registered with the authorities.
Some aboriginals avoided the process out of mistrust, while other names were simply not recorded. Aboriginal women who married non-Indians lost their status, although that injustice was eventually reversed by the courts. Other aboriginals lost or gave up their status for a variety of reasons.
Today, an estimated 210,000 aboriginals are without official status. Many of them live in cities where they are unable to draw on the programs or funding that exist for status Indians.
The three levels of government provide some programs that specifically target urban aboriginals, but the issue of their legal status is more far-reaching.
Their non-status is a denial of their cultural heritage and identity, but it also means they have been denied the benefits and supports — weak though they may be — received by aboriginals with status.
The original Federal Court decision said they should be recognized as status Indians, but the Appeal Court ruled against a general declaration, saying it was necessary to analyze the reason each class of individual was excluded from the Indian Act on a case-by-case basis.
Parliament, the appeal court ruled, had the authority to exclude or include aboriginals, so the question of status “can only be answered after reviewing the particular reason for each exclusion.”
The Métis have a process for determining membership in their group, including self-identification, acceptance by the Métis community and records that verify ancestry.
A similar method could be used for non-status Indians who want to reclaim their heritage and their rights.
The federal government may appeal the ruling to the Supreme Court of Canada, but there is always the risk the court will impose an even heavier burden on Ottawa.
Even if the government accepts the court’s recent ruling, it will likely take many years, if not decades, to sort out the issues, implications and costs.
The court reference has been called the unfinished business of Confederation, but hopefully it will not take another 150 years to get it right.
» A version of this editorial ran recently in the Winnipeg Free Press.