The Supreme Court’s decision in Alberta (Aboriginal Affairs and Northern Development) v. Cunningham has left me scratching my head a bit. It overturned an Alberta Court of Appeal decision that seemed quite sensible to me. (One of the things that got me thinking about “double dipping” — since it was one of the respondents’ arguments.)
The case arose because the Cunninghams, long-time residents of an Alberta Métis settlement, were removed from the settlement membership list after they registered as Indians. The Cunninghams had sought to be registered under the amended Indian Act in order to get access to health care benefits – particularly the drug plan – not available to Métis people.
Before 1985, Indian women who married Métis men lost their Indian status and their children were not considered to be Indians either. In 1985 the Indian Act was amended to reinstate these women and their children. Until then, they had no choice but to live off-reserve. That was the situation for the Cunninghams who lived in a Métis community for all or most of their lives — even before it became a settlement under the Métis Settlements Act (MSA). They had always lived as and identified themselves as Métis.
The facts reported in the case suggest that this was a case of community in-fighting. The former council of the settlement excluded only the Cunninghams on the grounds of their Indian status. There were other settlement members who had registered as Indians who were not excluded. (There was even evidence that in some Métis settlements 1/3 of the members have Indian status.) When a new council was elected it sought to reinstate the Cunninghams but the Registrar said he couldn’t reinstate them because s. 75 of the MSA doesn’t allow Métis with Indian status to obtain settlement membership – but that they could reapply for membership. Although they continued to live on the settlement they could not vote on settlement matters or access settlement programs.
The Cunninghams didn’t think they should have to reapply for membership and sought a declaration that ss. 75 and 90(1) of the MSA was discriminatory and breached the Charter. The chambers judge found it didn’t, the Alberta Court of Appeal found that it did. Finally, the Supreme Court found that it did not breach the Charter.
The Court of Appeal found that the MSA was discriminatory. It emphasized the arbitrariness of excluding only the Cunninghams. It emphasized their life-long attachment to the settlement and its doubts about how excluding life-long Métis could protect the culture. It found that the objectives of the MSA included preservation and enhancement of Métis culture and identity, but saw exclusion of people who identify as Métis from participating in the community as antithetical to the legislative objectives. The Court saw the exclusion from the settlement of these Métis who had acquired Indian status as creating unique disadvantages including lack of access to culturally-based programs and ability to participate in governance, and being considered “less Métis” similar to the issue faced by off-reserve Indians in Corbiere.
The Supreme Court, on the other hand, found that the exclusion of status Indians from membership in a Métis settlement does not constitute discrimination. It emphasized that the MSA is an ameliorative program that will necessarily confer benefits on one group over others, that is intended to preserve and enhance Métis culture, identity, and self-government, and that it was enacted following negotiations between Métis and the Alberta government. The Court stated that:
The object of enhancing the identity, culture and self-governance of the Métis as a s. 35 group, of necessity, must permit the exclusion of other s. 35 groups since an essential part of their unique identity is that they are “not Indian” and “not Inuit”.
The Court acknowledged that some people identify as both Métis and Indian, but found that didn’t negate the distinction between the two groups. It found that significant numbers of members with Indian status would compromise the distinctive Métis identity – and self-governance. The Court said:
For example, Indians who already enjoy the right to hunt off-reserve may have little interest in promoting the right of Métis to hunt outside settlement lands. The same may be ventured for other benefits and privileges. Because the Indian Act provides a scheme of benefits to status Indians, ranging from medical care to housing to tax-free status, status Indian members of Métis settlements may have less interest in fighting for similar benefits than Métis without Indian status.
The Métis have put a huge effort into establishing a separate identity from other Aboriginal people. However, although it is common ground that Métis have an identity separate from both their Aboriginal and their European forebears, the “European” mainstream society’s influence on or interference with Métis identity doesn’t seem to be an issue, either for the parties who negotiated the terms of the legislation or for the Court. The example given above seems to acknowledge the similarity between Métis culture and Indian culture, i.e. hunting as a way of life. However, in the example quoted, Aboriginal self-governance is reduced to a struggle against mainstream governments for recognition of “benefits and privileges” (not rights).
It also assumes that individuals involved in the struggle for Aboriginal “benefits and privileges” (or what I would characterize as Aboriginal rights) are working for their own self-interest. In fact, most Aboriginal people working for their rights are motivated more by the interests of the future generations. Because those reinstated to status under the revised Indian Act have limited ability to pass on their Indian status, the Cunninghams and others like them would have a strong motivation to work for future generations of Métis since (at least prior to this decision) their descendants would more likely have been Métis than Indian. Now they will probably not be either.
In fact, there are two big threats to Aboriginal identity: governmental regulation of Aboriginal identity, whether it is Métis or Indian, and “mainstream” interference with culture (i.e. interference from the direction of Métis “European” origins). Let’s be realistic. The Métis language, Michif, is not threatened by vast numbers of Métis abandoning it in favour of Cree, or any other Aboriginal language. Aboriginal languages, and other aspects of Aboriginal cultures, are threatened by the influence of the English language and mainstream cultural practices, not “other” Aboriginal cultures. Yet the MSA doesn’t deal with that threat. It only deals with the supposed threat Indians and Inuit pose to Métis identity and self-governance.
In the interest of preserving Métis identity and self-governance the Cunningham decision has the potential to reduce by 1/3 the number of people able to assert Métis rights and identity. The people who will no longer be recognized as Métis have been Métis all their lives. They had a claim to both Métis and Indian identity because they had one Métis parent and one non-status Indian parent. But they have made a choice to claim their Indian status and therefore cannot be Métis any longer.
Can we really take seriously the claim that the fewer lifelong Métis allowed legal recognition of their Métis identity, the stronger the Métis culture will be? Or is it really about avoiding double dipping, and about the gradual extinction of both Métis and Indian peoples?
*Thanks to Marilyn Poitras for suggestions, encouragement and for the title.