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Non-Status Indians in the U.S., Part 2: Daniels v. Canada/Crown

In 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”.

In this Part 2 of this series on the Canadian Supreme Court Decision in Daniels v. Canada we examine the case in the context of answering the following questions I posed in Part 1:

Are there, in the United States and its Territories, a class of Individual Native Americans similar to Canada’s “Non-Status Indians,” to whom the U.S. may owe a fiduciary responsibility which it is now shirking? (For that matter are their Indian Communities in the U.S. and its territories, similar to the Metis communities in Canada, that should be recognized to have “beneficiary status” as Indian Communities?)

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?

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?

(My apologies for setting out so much of the Canadian Supreme Court’s opinion verbatim. My goal here is to set a foundation upon which the reader may recognize the similarities in Canada’s treatment of its Aboriginal People, from a legal standpoint, to the treatment by the United States’ of the Indigenous populations of America.)

The Canadian Supreme Court said in Daniels, “a good relationship with all Aboriginal groups was required to realize the goal of building the railway and other measures which the federal government would have to take. With jurisdiction over Aboriginal peoples, the new federal government could “protect the railway from attack” and ensure that they did not resist settlement or interfere with construction of the railway. Only by having authority over all Aboriginal peoples could the westward expansion of the Dominion be facilitated”.

The history of the United States and its treatment of American Indians is very similar to Canada’s history in that there was a “necessity”, from the Federal Government’s standpoint, to deal with Indian Tribes for treaties to keep the “Peace” and to gain “Dominion” over Indian lands so that the Federal Government could carry out the theory/doctrine of “Manifest Destiny”. The Spaniards, influenced by the Holy Catholic Church, had engaged in “Ecclesiastic Debates” as to whether the native populations of the Americas were even “human” or something akin to “animals”. If it was the latter, they could be annihilated, exterminated or domesticated to facilitate the colonization of the lands. If it was the former, then the Natives had to be dealt with as Spain was dealing with other nations that it conquered or colonized. While Spain chose the latter, it did so recognizing that it could do the former if the Native Populations resisted becoming Human Christians. The practice of “Treating” with the Indigenous population of the British Colonies and French “Possessions” on the other coast of North America was adopted by the colonizing countries and their successor governments, but also with the same “policy” of submission or death, with annihilation, extermination and removal the practice of the day without the pesky interference of the Church (Catholic or otherwise).

The Daniels Court found that “the federal government has at times assumed that it could legislate over (Métis) as “Indians”. The 1876 Indian Act banned the sale of intoxicating liquor to “Indians”. In 1893 the North-West Mounted Police wrote to the federal government, expressing their difficulty in distinguishing between “Half-breeds and Indians in prosecutions for giving liquor to the latter”. To clarify this issue, the federal government amended the Indian Act in 1894 to broaden the ban on the sale of intoxicating liquor to Indians or any person “who follows the Indian mode of life.”

This is but one example among many of “The Crown” taking responsibility to legislate as to “individual” Indians versus legislating about Tribes or Tribal Nations. Canada merely encoded the “practice” and “processes” of the time which “presumed” that Indians were the responsibility of the Crown and not so much a Provincial or local responsibility.

The Court continued, “Moreover, throughout the early twentieth century, many Métis whose ancestors had taken scrip continued to live on Indian reserves and to participate in Indian treaties. In 1944 a Commission of Inquiry in Alberta was launched to investigate this issue, headed by Justice William Macdonald. He concluded that the federal government had the constitutional authority to allow these Métis to participate in treaties and recommended that the federal government take steps to clarify the status of these Métis with respect to treaties and reserves: Report of Mr. Justice W.A. Macdonald Following an Enquiry Directed Under Section 18 of the Indian Act (1944).

The Court went on, “Justice Macdonald noted that the federal government had been willing to recognize Métis as Indians whenever it was convenient to do so (emphasis mine): Not only has the federal government legislated over Métis as “Indians”, but it appears to have done so in the belief it was acting within its constitutional authority. In 1980, the Department of Indian Affairs and Northern Development wrote a document for Cabinet entitled Natives and the Constitution. This document clearly expressed the federal government’s confidence that it had constitutional authority to legislate over Métis.

The court thus opined, “The term “Indian” or “Indians” in the constitutional context, therefore, has two meanings: a broad meaning, as used in (citation omitted)), that includes both Métis and Inuit and can be equated with the term “aboriginal peoples of Canada” used in (citation omitted), and a narrower meaning that distinguishes Indian bands from other Aboriginal peoples. A broad understanding of “Indians” under (citation omitted) as meaning Aboriginal peoples’, resolves the definitional concerns raised by the parties in this case. Since (citation omitted) includes all Aboriginal peoples, including Métis and non-status Indians, there is no need to delineate which mixed-ancestry communities are Métis and which are non-status Indians. They are all “Indians” under (citation omitted) by virtue of the fact that they are all Aboriginal peoples. It is about the federal government’s relationship with Canada’s Aboriginal peoples. This includes people who may no longer be accepted by their communities because they were separated from them as a result, for example, of government policies such as Indian Residential Schools. There is no principled reason for presumptively and arbitrarily excluding them from Parliament’s protective authority.

(Please note that most citation refer to sections of The Indian Act and/or Constitutional Provisions.)

The Canadian Court essentially was saying that the Federal Government cannot claim Jurisdiction over Aboriginal people, be they Status Indians, Metis or non-Status Indians, ONLY when it is convenient to do so and not claim it when it is not convenient to do so. For the most part the Crown conveniently did not include the Metis and “Non-Status Indians” because to do so would put the Federal Government at liability for the full panoply of rights and benefits afforded to “Registered” Indians, which is another term used for “Status Indians”.

While the United States Indian Policy swings over 200 or so years has varied from “wars of conquest and submission” to the current “Self-determination and Self-governance”, the central theme of “assimilation” persists to this day. Many states still endorse assimilationist policies which are either still supported by Federal Law or not “repudiated” by Federal Law. Witness the present fight over state court enforcement of the Indian Child Welfare Act and the challenges to that “anti-genocide” Federal Act that are currently making their way through the courts. Witness also the many “intrusions” of state law and taxation into tribal homelands that are either permitted by Federal Law or not repudiated in Federal Law, most of the time out of apathy. The Supreme Court of the U.S. (SCOTUS) has said that the “power to tax is the power to destroy” and the States, most of the time without interference of the Federal Government to any great degree, continue the assault on Tribal existence at every opportunity.

In Part 3 we will examine how International Law and the United Nations Declaration of the Rights of Indigenous Peoples, coupled with the historic treatment by the United States of “Indians” and “Indian Tribes” perhaps dictates the recognition of some kind of “Indian Status” to individual Indians and Indian Communities that are not presently under Federal Recognition as Tribes.

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 hamlaw@live.com.