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‘Non-Status’ Indians in the U.S.? Part 1: A Lesson From the Canadian Supreme Court in Daniels v. Canada.

The recent Supreme Court of Canada decision in Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, the Court was asked to resolve the question of whether “Metis” (Mixed Bloods) and “Non-Status Indians” were Indians under the Constitution and Laws of Canada. The Canadian Supreme Court found that, indeed, both were “Indians” for purposes of the Canadian Constitution and Law(s) and thus entitled to the same benefits though Canadian Law as “Status Indians”.

Status Indians” or,“Registered Indians”, have rights and benefits that are not granted to unregistered Indians, which include the granting of reserves (Reservations) and of rights associated with them, an extended hunting season, a less restricted right to bear arms, an exemption from federal and provincial taxes, and more freedom in the management of gambling and tobacco sales.

Non-statusIndian” is a legal term referring to any First Nations individual who for whatever reason is not registered with the federal government, or is not registered to a band which signed a treaty. It was possible under Canadian Law for a “Status Indian” to become a “non-Status Indian” under certain circumstances that had previously been codified by Canadian Law at a time when Canadian Indian Law was influenced by policies seeking to “assimilate” Indians and even “terminate” the Canadian Federal fiduciary relationship with Tribes and individual Indians. For several decades, status Indian women automatically became non-status if they married men who were not status Indians. Prior to 1955, a status Indian could lose their status and become non-status through “enfranchisement” (voluntarily giving up status, usually for a minimal cash payment and the right to vote), or by obtaining a college degree or becoming an ordained minister. For several reasons there were policy changes in Canadian Law regarding Indians which took a more enlightened and humanistic approach to maintaining Indian Identity and Community. These changes and the resulting inconsistencies in the treatment of Indians under Canadian Law led to several court cases and Federal Acts calling for a more consistent and humane approach.

Metis” are mixed Indian and Non-Indian, some affiliated with an Indian Community or Reserve and some not. Metis had historically been treated as Indians and looked upon as Indians to one degree or the other. Again, the Constitutional changes, court interpretations and statutory changes had worked over time to create a patchwork of law that sometimes recognized the Metis as Indians and sometimes did not. One circumstance contributing to the inconsistencies was the “diffusion” of the Metis across the whole of Canada sometimes in recognized “Indian or Metis Communities” and sometimes not.

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The question I pose in this series is: Whether the United States Constitution and Laws do, or could, recognize non-federally recognized tribes and their members, state recognized tribes and their members, and individual Indian “Descendents” from “historic” tribes, and other indigenous people in the United States, as having a “trust/fiduciary relationship” with the United States under a similar analysis as the one used by the Supreme Court of Canada?

This is not meant to be a “Law Review” Article and I shall leave that to some enterprising Law Student to research and write. However, the answer to the posed question could have myriad effect on the individual Indians in the united states who are not members of “Federally Recognized Tribes”, or were “derecognized” or “terminated” or “disenrolled from Federally Recognized Tribes”, or are members of “State Recognized Tribes”, or Indians that can show descendantcy from a historic tribe or tribes but don’t meet “enrollment” criteria in any Tribe, or are descendants from other Indigenous People in the United States and its territories, such as Hawaii and Puerto Rico. Alaska Natives at one time were treated as an afterthought by the United States and the Department of Interior and the Bureau of Indian Affairs did not consistently act towards them as they did Federally Recognized Tribes with regard to federal benefits or treatment as governments. Some were recognized to have governmental status and some were not. Of course, with the realization of the vast mineral wealth and other valuable natural resources, the U.S. Government needed a way to control and exploit that wealth and secure the resources. The Alaska Native Claims Settlement Act was born so the U.S. could maintain “dominion” over the land and resources and assume “jurisdiction” over the Indigenous population therein.

In a Nutshell (pun intended), are there a class of Native Americans similar to Canada’s “Status Indians” and/or a class of “Indigenous Native Americans”, similar to Canada’s “Non-Status Indians”, to whom the U.S. may owe a fiduciary responsibility which it is now shirking? Could the U.S. take a lesson from Canada in resolving outstanding issues with regard to Native Hawaiian Recognition as Native Americans with attributes of sovereignty, including governmental rights over their people and lands? Could the same reasoning apply to other Indigenous populations in the American “Territories” that are in a state of limbo due to the inconsistencies in Federal Law as it applies to American Indigenous Populations? And, last but perhaps most importantly, does International Law and the United Nations Declaration on the Rights of Indigenous Peoples militate for the United States to answer these question in the positive? Many people to not know or understand that the United States ratified the Geneva Conventions Against Genocide and placed “some” of the provisions into U.S. Statutory Law and those expressions of law lend support for certain “positive” treatment of Native Americans and other Indigenous populations in America, and militate against “negative” treatment that may violate the provisions of International Law and the provisions in the U.S. Code. Perhaps most importantly, do they provide a “check” on the supposed “Plenary Power” of Congress over Native American Affairs?

In the next installment we will examine the Canadian Supreme Court Opinion in Daniels V. Canada in more detail and look at some parallels with regard to U.S. Federal Law and Court Decisions.

Harold Monteau is a Chippewa Cree Attorney of Metis descent and writes from New Mexico. He is the former Chairman of the National Indian Gaming Commission (NIGC) and an Economic Development and Finance of Economic Development Consultant. His Email is