Métis are Legally Aboriginal

I’ve just remembered why the Canadian Constitution Act 1982 says Métis are as Aboriginal as Indians and Inuit: Because Métis have Aboriginal and/or Treaty Rights of which Canadian Law is required to take notice.

I have said I think Indigenous is a better word for Métis than Aboriginal, because as I read the word in its plain meaning, Aboriginal means “here first” (or at least, before actual European-led settlement began) or “from the beginning.” Métis as such, being of Mixed Aboriginal and non-Aboriginal ancestry by definition, wouldn’t be described that way.  But I was looking at the matter perhaps anthropologically (Heaven forbid!) or sociologically, even just grammatically.  The constitution is a legal document, addressing a special set of concerns not necessarily identical to or coterminous with those of the anthropologist, sociologist, or grammarian.

For centuries in the Anglo/American legal system, Aboriginal groups, and sometimes Aboriginal individuals, have been held by courts to continue to possess certain rights in tenure (Aboriginal Title) and/or use of territory and resources (Aboriginal Rights), to the extent that the rights in question are not incompatible with Crown rule “where The Queen’s Writ runs,” or have not been extinguished* by the Crown-in-parliament, ie, by competent, valid legislative statute.**  This ultimately goes all the way back to when the Welsh and Anglo-Saxons were the Aboriginals when William the Conqueror arrived in Britain in AD 1066, since the Common Law in England has been held to antedate the Conquest.  It also would have applied to Ireland if The Case of Tanistry had gone another way in the 1600s; the court ruling was that the Celtic chiefly or clan succession system (to lands) by that name, by a competent, previously-appointed, -nominated, or even -elected adult near relative (rather than strict primogeniture) was incompatible with Crown rule.  (I remember thinking when I read about it a few years ago that, in the light of more recent and diverse Imperial and Commonwealth jurisprudence and governmental experience – my gosh, India! Africa! – that the Irish practice of tanistry might have been upheld vis a vis British rule had the case only been brought today rather than 400 years ago.  I forget exactly why, though.)

Since the 1600s the Crown, its successors (eg, the USA) and its agents (eg, colonial proprietors or governors) have frequently tried to free-up lands and/or resources they desired, in the hands of Aboriginal groups outside Europe, by Treaty – not always accompanied by the threat or reality of violence as commonly in the case of the U.S. … nevermind broken Treaties.  It’s possible they thought relatively-voluntary relinquishment would be easier than by war, which would inevitably follow mere legislative extinguishment way off in London or Ottawa.  Even the U.S., I suppose, is to be lauded for not simply extinguishing – or trying to – all rights by a piece of paper on Capitol Hill, despite its mostly “warlike”(!) approach to Aboriginal peoples since the Revolution.

In any case, any land title or other Aboriginal Rights not ceded by Treaty (or sometimes equivalent negotiated settlement) remains in the hands of the Aboriginal possessor(s).  In what is now Canada many Métis groups and individuals in the past or even the present have lived “on the land,” occupied territories for centuries alongside or “in-between” Indian Tribes, hunted, gathered, fished, trapped, signed or “adhered to” Treaties ceding some but not necessarily all Aboriginal Rights – who knows, maybe even have mineral rights!  There are even a handful of Métis Reserves (reservations) in Canada.  And Métis living elsewhere may still hold unceded Aboriginal Rights or Treaty Rights, whether as Métis or even strictly as Indian/Inuit descendants.

In addition, like the U.S., Canada often offers benefits or assistance – never enough of course – to Aboriginal groups and individuals as part of (lobbied) social legislation or executive government functions.  While not technically part of the constitution or Treaties, these may be more available to Métis from lawmakers and Governments now that they’re officially recognized in the constitution as Aboriginal.  Métis in Canada suffer much from discrimination, poverty, and health problems, little different from their Indian or Inuit cousins.

Now how about other countries?!!

(*–I do not believe this use of extinguished is the same as when, in the 20th century, the United States Congress acted to “terminate a Tribe.”  Congress has since “unterminated” some “terminated Tribes,” but Aboriginal Rights “extinguished” are considered incapable of being “unextinguished” or restored, at least in Commonwealth Nations.  However, I am not a lawyer, just an amateur legal scholar!)

(**–The way I read U.S. constitutional documents, I’m not sure any U.S. legislative body is empowered to extinguish Aboriginal Rights without Treaties or similar agreements, like a Westminster Parliament probably is by Common Law, since U.S. lawmakers have only powers explicitly or clearly implicitly delegated to them by written Constitutions, Federal or State, respectively.  Thank God!)

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