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 I was prompted to consider this a few years ago when I wrote about a then-unpublished federal study called Registered Indian Population Projections for Canada and Regions, 2004-2029.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?

Looking for more?

Get the Best of Maclean's sent straight to your inbox. Sign up for news, commentary and analysis.