Who counts as "Indian"? Unanswerable questions and basic principles - Macleans.ca

Who counts as “Indian”? Unanswerable questions and basic principles


The way to read yesterday’s decision by Federal Court Judge Michael Phelan—if you want to get a feel for his ruling that the federal government must extend legal recognition as “Indians” to Métis and so-called “non-status Indians”—is out loud.

I suspect many Canadians would stumble, at least on the last word, trying to recite, for instance, this passage: “As said earlier, the factor which distinguishes both non-status Indians and Métis from the rest of Canadians (and has done so when this country was less culturally and ethnicly diverse) is that native heritage—their ‘Indianess’.”

Or, to pick another quite typical sentence, try declaiming this without a sense of unease creeping onto your voice: “The historical resistance of many Métis to identify with ‘Indians’ is understandable in the historical context where being Indian was not complimentary, and where certain freedoms were denied, but it is not determinative of the constitutional issue.”

I’m not suggesting at all that Phelan is wrong, as he sets about interpreting the law, to write about what historically distinguished one group from others, or how one group was reluctant to be identified with another. Our fraught history demands this sort of analysis. But we’ve mostly fallen out of the foul habit of sorting people that way. Thank goodness.

Constitutional and legal history drag our courts and governments back into the swamp of racial categorization in only this one area. It’s worth remembering how out of step this is with what we strive for in any other context. I was prompted to consider this a few years ago when I wrote about a then-unpublished federal study called Registered Indian Population Projections for Canada and Regions, 2004-2029. (Key findings have since been posted online here by Aboriginal Affairs and Northern Development Canada.)

The study found that of registered Indians living off reserves who had children between 1985 and 2004, 70 per cent did so with non-status partners. Even among registered Indians living on reserves, 35 per cent of those who had children became parents with partners who didn’t share their status. This matters because, as I understand the rule, a child with one registered Indian parent inherits status, but if that child grows up to marry a non-status person, their children do not qualify.

The notion of such rules existing at all is shocking, when you think about it.  But they do. And so, according to the demographic study, the number of non-status descendants of registered Indians living on reserves is on track to balloon, by 2029, to 99,800, about 22 times the 2004 figure. During the same period, the off-reserve population of registered Indians’ descendants who don’t themselves qualify for status will more than double to 144,800.

Phelan’s decision, if it survives a likely appeal by the federal government to the Supreme Court of Canada, means these arcane, uncomfortable questions about the children of status Indians who “marry out” won’t be answered in the same way. Status will presumably attach to the previously non-status group. Membership in any particular First Nation community would, on the other hand, still be very much in question.

All of this is troubling. We need to ground our responses in fundamentals. I believe that each of us must come to our own understanding of how we’re shaped, if at all, by our ancestry. How can government have any say in something so personal? I believe public programs should be designed with the needs of citizens in mind, not ethnic categories, which, if they ever made sense, are rendered ridiculous over time by the wonderful way we tend, being human, to stray outside our groups when it comes to pairing off and having kids.

Of course, Canada can’t start from scratch. History happened. The Indian Act is on the books. But to the degree possible, we should resist allowing the outmoded terms that dominate these debates about First Nations from overwhelming us. We don’t believe notions of race should dictate policy any more than we believe bloodlines define individuals. Do we?


Who counts as “Indian”? Unanswerable questions and basic principles

  1. ‘But we’ve mostly fallen out of the foul habit of sorting people that way. Thank goodness.’

    You haven’t been reading any of the comments on these stories eh?

    And how do you tell a Hungarian from a Ukranian?

    In any case, this is no time to try and make them all ‘legally white’…..it’s a tad suspicious. LOL

  2. “We don’t believe notions of race should dictate policy any more than we believe bloodlines define individuals. Do we?”

    It is hard to believe you have been living in Canada for past 20 yrs Geddes if you can write sentences like that. Political correctness is all about dividing people based on their ethnicity or race.

    My sister went on two week vacation a few days after she signed her divorce papers and got pregnant by some Thai beach bum she had a weekend of sangsom and upside down sex with, and my sister is against abortion, so now I am proud uncle to plain white boy and exotic girl. Anyways, I mention my family’s secrets because I am continually amazed at The State’s focus on my niece’s race and how she should be labeled. My sister wants my niece to be thought of as a human or Canadian by The State but bureaucrats insist on racial classifications. My family is having long running battle to get The State to think of my niece as a human being instead of Canadian-Thai classification bureaucrats are keen to impose.

    So in answer to your question, yes, many Canadians are quite happy for race to dictate policy. My niece, for one, is constantly reminded she is different and supposedly needs special treatment from The State.

    And what about ethnic nationalism that Francos in Que practice? Policies based on people’s language are just as invidious as basing policies on racial characteristics.

    • I don’t really need to know about your sisters sex life and the paternity of her children.

  3. Was that little tremor I just felt Riel turning over ?

  4. Every time one of these decisions or rulings gets me depressed about our countries progressive racism, I just remind myself that in 50 years most of the population will be made up by immigrants, and there’s no way they’ll allow these racial classifications to continue.

    • The right seems to demand a lot from these newcomers to Canada – increased gay-bashing, and now dismantling aboriginal rights as well?

      • You really think that in 50 years Prime Minister Singh would even listen to these clowns with their insane demands and constantly moving goal posts? You think they’d be willing to throw billions of dollars into the Reserve system? Give your head a shake.

        • Sorry dude, peddle the red/yellow/brown peril bit where it works best – the right.

          • I have no idea what you’re talking about. If you disagree with me, could you please explain how?

    • The Reform Party’s evolution on immigration.

      • It’s amazing how much time you left-wing loons spend criticizing a party that hasn’t existed for over a decade. Get with the times.

        • No amount of Maybelline concealer and a name change can take away one of the essential themes of the Reform party.

  5. The whole challenge of course is that the Crown, the direct ancestors of Queen Elizabeth II, Queen of Canada, signed contracts in perpetuity with the First Nations. This is what requires the “racial” categorization – so as to know and define who the partners to these contracts are.

    The fact that the Crown made these agreements thinking that these people would all be dead or assimilated in a generation or two, or baring that, that they would not be held to the conditions of the contracts by common law courts is the root of the problem.

    • Thank you. Great summation!

    • Do you believe the Courts to be completely free of playing politics?
      Or are the Courts simply given a pass when they find themselves to be playing politics?

      For instance, the questioning of the timing of the Government’s release of the Deloitte’s audit report on Attawapiskat was clear enough; many suggested that the timing was suspicious and therefore Government actions were seen as being suspicious.

      Yesterday, when this Court’s decision was released to the media, was its timing of release considered suspicious?

      Did you wonder why the Court or the Judge decided to release his statement just three days before the meeting of January 11?

      Do you ever wonder about those things, why double standards are applied to so many things here in Canada?

      • The extent to which courts are actually political vs. the extent to which people claim they are political (usually righties claiming its too left) is a difference of orders of magnitude. It’s essentailly very very small (maybe they held off on ruling gay marriage violated the charter in order to stop Paul Martin from saying “courts made me do it”. Maybe. Try to prove it. Heck try to show compelling evidence of it – can’t do it).

        That’s not to say actual court decisions don’t sometimes involve policy, but that doesn’t make judges ‘political’ actors in the sense we think of them.

        • I was not referring to ruling on policy as to why the Courts could be considered politically motivated; I was referring to the timing of report releases and the reaction to such release dates.

          Timing – not policy!

          Again, why was the audit report release date seen by so many as to be suspicious and yet, when a court judge decides to release his report a few days before the January 11 meeting, not a peep from the media or anyone else (except me, of course; I find the applications of double standards quite easy observable…)

          • I know this time you weren’t talking about policy, but it often goes hand in hand so I thought a general reminder was warranted.

          • As was my reminder of double standard a warranted reminder.

          • exept that you were wrong

          • No, I wasn’t wrong. You have no valid counter argument and therefore you hastily pull out of the conversation by simply saying that I was wrong.

            I didn’t expect otherwise, really. It’s going on here all the time. Every time an argument is made and no valid counterargument is in the offering, an accusation of wrong-ness serves as substitute. I don’t live my life like that.

          • Ok you are right the next time a judge goes to a reporter and reveals select tidbits of a yet to be released judgment dealing with the exact same parties and not just a broadly similar issue, i will be suspicious.

            Wait. Did I say “next” time? I meant “first” time. And that’s a major part of the difference.

          • What broadly similar issue are you talking about?

            Wait, did you give your opinion on the subject at hand? Hardly. Just another way out for not having to face the facts.

            It is not considered a leak when the exact same information was posted on the source’s webpage within an hour. The delay caused by bureaucratic input could just as easily have been the cause for the two releases not having lined up.

            The judge in this case, as in other cases, was not questioned on the timing of the above mentioned report. That is a fact.

          • yeah it’s a leak. And broadly similar means broadly similar. In this case, meaning that Chief Spence’s hunger strike is only related to status rights in a very broad sense. The government leaked pieces of a report in hopes it would be damaging to a specific person. A court released a full decision dealing with an aspect of aboriginal matters. Even making the baseless assumption it was political, what was the court hoping to gain here?

          • The Congress of Aboriginal Peoples and several Metis and non-status Indians are not a broad group of people; they are a special interest group! Exactly, what is the court hoping to gain here??

            And broadly speaking, who does Chief Spence represent while doing her fasting? Is she speaking as Chief of her reserve when she demands to meet with the PM and the GG or does she speak on behalf of all Natives? Perhaps Chief Spence, within fasting mode, speaks for all people who are on a diet or want to be on one.

            What broad sense are you talking about in relation to Chief Spence? Who is she speaking for? Who is she ultimately representing but her own community of Appawapiskat! Ask the Idle No More movement of who Chief Spence speaks on behalf of and see what answers you will get.

          • read it again.

          • I have read all postings again but I can’t seem to find your opinion as to whether you think that calling the timing of the audit report as suspicious was justified.

            Just because you consider the release of the audit report a leak does not make it so.(not even the CBC had called it a leak delivery but instead reported it had ‘been handed a copy of the audit report’) Just because some in the media repeated the action as a ‘leak’ does not make it so. Parroting misinformation does not manage to set the facts straight.

          • I have no idea what the schedule was like for this case. I would not be surprised to find the entire the entire case was heard long before chief spence announced her hunger strike.

            Beyond that, I will not engage in rash baseless speculation. You’d be very wise to do the same.

          • GFMS advises: “Beyond that, I will not engage in rash baseless speculation. You’d be very wise to do the same.”

            I agree, and find it therefore advisable for the some members of the media and some Canadians to not have engaged in rash baseless speculation when it concerned the timing of the release of the Deloitte’s auditor’s report.

            But the question is: did you find it wise for some members of the media and some Canadians to speculate on the timing of the released Deloitte’s auditor’s report? It would be wise to answer that one, me thinks. It would show that you have some opinions of your own on the matter.

          • you mean leaked. to the bloody press.

          • You mean, the report was handed over to the media an hour before it was publicly released on the government’s website?

            You call that a leak? I would say that the bureaucratic fingers of webpage input were a bit slow.

          • The court case has taken 13 years.

  6. The article expresses my sentiments. “I believe public programs should be designed with the needs of citizens in mind, not ethnic categories…”. According to both the article and the last Canadian census, these categories are increasingly less ‘pure’ and increasingly more mixed and this trend will only escalate over the next decades, not just in Canada, but around the world.

    To have special status for one (increasingly mixed-)racial category is absurd. This category is experiencing a population boom and under the recent ruling will increase greatly in numbers. These people and their decendents are exempt from taxation and the remainder of the country must support them. This is preposterous.

    Canada, as is pretty well the entire world, is a multicultural society, but Canada is much more mixed than many other societies. That we should be entertaining the continuation and reentrenchment of apartheid is ludicrous. Being equal citizens is not whitewashing people of other ethnicities, as the Chinese and other visible groups would certainly agree.

    “[W]e should resist allowing the outmoded terms that dominate these debates…”. This is what immediately came to mind when I read the resurrected term ‘settlers’, which was used to designate not only immigrants to Canada, but also to those born here who have no fraction of First Nation ancestry.

    As a multicultural society, and as a nation in a modern multicultural world, we must once and for all eradicate porous and divisive legal distinctions based on race and ethnicity, so that we can finally be one Canadian people who share the same rights and privileges under the law. Being equal citizens is not the same as being forcibly “identified with another” ethic group or race. Identification with an ethnic, cultural or racial group is a personal choice, usually dictated by ancestry, but should not be a legal designation that creates Us and Them categories out of the Canadian nation and people.

    • Why not do away with the Indian act altogether?

      • Why not set the whole thing back to equal and give them immediate ownership of all land claims.

        • The lands being claimed now or then?

          • If you’re going to abolish the Indian act, the turn it all back to the year zero.
            samu press store _ cartoon life blog _ samu press blog

          • And what would be considered the ‘year zero’? The time before or after the big bang?

            Ask the Native community which years suits them best because their land claims are all over the Canadian map, changing as time changes.

          • Set it all back to the time the Indian Act was implemented.

            samu press store _ cartoon life blog _ samu press blog

          • Yes, let’s take the time of Indian Act implementation, deal with the land claims as set under at that time, and let us then do away with the Indian Act altogether.

            I could agree to that. No expansion of timelines and no expansion of land claims in the making.

            Could the FN or any other putative INM leader come to agree to such an arrangement?

  7. Gee, why can’t everyone just adapt the same privileged ideas i hold which benefit me?

  8. “Constitutional and legal history drag our courts and governments back into the swamp of racial categorization in only this one area.”

    You’re wrong buddy, that’s what multiculturalism does, and multiculturalism financially supported by taxpayer funds is a divide and conquer political strategy conjured up by the biggest p*sspot politician of all time, Pierre Scumball Trudeau.

    It’s a political scam designed to subjugate decent people..

    • Well, something is turning you into a whiner, that is for sure. Do try to cope.

      • Don’t worry about it toots, I’m doing OK. How sbout you, have you needed any bleach on the old keyboard lately?

  9. Just for clarification, could someone please explain to me what exactly this new “legal recognition” will entail for current “non-status Indians” or whatever?

    I mean, if someone who has grown up full of native traditions and who wants to live off the land or something is allowed to hunt year-round, fine. But does this mean that “Joe”, who also identified himself as white until an internet search revealed his great-grandma was Native, is allowed to shoot a deer that walks through his Northern Ontario city backyard in April?

    Is “Joe” also allowed to get reduced tuition for university? Reduced sentencing on criminal charges? Different tax rules?

    That seems INSANE, and like it’s going to cost our government billions of dollars. It makes no sense to me, if I person doesn’t already identify themselves as First Nations, then why should we encourage them to jump on a bandwagon? (no pun intended)

    Just because my father is Irish, doesn’t mean that I get an Irish passport. (Not a perfect example, I know)