Blood (20 page)

Riel had more to say on the subject. The intimate, conversational, respectful tone of his words is all the more striking, considering that he wrote his last memoir in a jail cell shortly before his execution. This quote from the memoir comes from Auguste Henri de Trémaudan's book
Hold High Your Heads: History of the Métis Nation in Western Canada
, first published in 1936 and translated by Elizabeth Maquet in 1982:

A little observation in passing without offending anyone. Very polite and amiable people, may sometimes say to a Métis, “You don't look at all like a Métis. You surely can't have much Indian blood. Why, you could pass anywhere for pure White.”

The Métis, a trifle disconcerted by the tone of these remarks would like to lay claim to both sides of his origin. But fear of upsetting or totally dispelling these kind assumptions holds him back. While he is hesitating to choose among the different replies that come to mind, words like these succeed in silencing him completely. “Ah! bah! You have scarcely any Indian blood. You haven't enough worth mentioning.”

Here is how the Métis think privately. It is true that our Indian origin is humble, but it is indeed just that we honour our mothers as well as our fathers. Why should we be so preoccupied with what degree of mingling we have of European and Indian blood? No matter how little we have of one the other, do not both gratitude and filial love require us to make a point of saying, “We are Métis.”

In one key legal case decided by the Supreme Court of Canada, it became clear how thoroughly we have lost sight of Louis Riel's reminder that there is no need to preoccupy ourselves with degrees of blood mixing, and how profoundly the connection between blood quantum and Métis identity has lodged itself in the collective consciousness of Canadians.

In 2003, the Supreme Court upheld the constitutional hunting rights of a Métis father and son, Steven and Roddy Powley, who had been charged ten years earlier with shooting a bull moose near Old Goulais Bay Road, close to Sault Ste. Marie, Ontario. Normally, a person requires a licence to hunt moose or other animals. The Powleys had no such licence. They argued that they were exempt from hunting regulations because section 35 of Canada's Constitution Act confers Aboriginal and treaty rights on Indians, Inuit, and Métis peoples. (Canadian courts had already determined that s. 35 entitles Aboriginal peoples to fish, log, and hunt for subsistence purposes, although the Powley case represented the first time that the Supreme Court of Canada ruled on how s. 35 applied specifically to Métis people.) The issue at court was simple: were the Powleys Métis, or were they not? It was a key point. After all, as the court noted in its ruling: “The verification of a claimant's membership in the relevant contemporary community is crucial, since individuals are only entitled to exercise Métis aboriginal rights by virtue of their ancestral connection to and current membership in a Métis community.”

The case first caught my interest when I was researching
Black Berry, Sweet Juice
, after I heard how forcefully the Ontario government had raised arguments about blood quantum in its efforts to see the Powleys convicted. The Ministry of the Attorney General of Ontario, which pursued the case for a decade, had argued repeatedly in lower courts that the Powleys could not be considered Métis because the father was (in its view) merely 1/64th Métis and the son an even more scant 1/128th Métis.

In its factum (a set of written arguments) in 1999 to the Ontario Superior Court of Justice, the Ministry of the Attorney General argued: “(The) ancestors of the Powleys married and had children with non-aboriginal persons of German/English, English and Irish descent. In particular, Steven Powley's mother (through whom his aboriginal ancestry is traced) was born near Detroit, Michigan to parents identified as being Irish and ‘white' or English. Mr. Powley's parents are identified on his birth certificate as being of English and Irish origin. He is of 1/64 aboriginal descent. He married Ms. Brenda Konawalchuk, who is not of aboriginal ancestry. His son, the respondent Roddy Powley, is of 1/128 aboriginal ancestry.”

In its forty-two pages of written arguments, the ministry referred no less than three times to the Powleys' blood quantum, concluding: “It is submitted that, at least in a case where there is no evidence of social and cultural ties to an aboriginal community, 1/64 and 1/128 aboriginal descent cannot serve as sufficient ‘aboriginal ancestry' to establish Métis identity for purposes of Métis aboriginal rights. That is especially so in a case like this where the aboriginal ancestry of the claimants is traced solely to one individual (i.e., Eustache Lesage, son of a non-aboriginal father and a Métis mother).”

However, the Supreme Court of Canada rejected that argument. “We would not require a minimum ‘blood quantum,' but we would require some proof that the claimant's ancestors belonged to the historic Métis community by birth, adoption, or other means,” the court ruled. It went on to define just what
Métis
meant, for the purposes of constitutional rights. The term
Métis
, the court ruled, “refers to distinctive peoples who, in addition to their mixed ancestry, developed their own customs, and recognizable group identity separate from their Indian or Inuit and European forebears. A Métis community is a group of Métis with a distinctive collective identity, living together in the same geographical area and sharing a common way of life.” To claim Métis status, the court said, a person would have to rely on self-identification, ancestral connection, and acceptance by a rights-bearing Métis community.

In the end, nine years, eleven months, and four days after Steven and Roddy Powley were charged with hunting moose without a licence, the Supreme Court of Canada ruled that the father and son were indeed Métis and acquitted them of the charge.

Although the Supreme Court rejected the concept of “blood quantum,” it did emphasize the mixed heritage of the Métis people. I would argue that this continues to set Métis identity artificially apart from that of other peoples. Nobody disputes that the original Métis people of northwest Canada arose as a result of intermarriage between European fur traders and Indian women. But the ongoing emphasis on the mixed heritage of the Métis people suggests that they are distinct in this way, and thus fundamentally different from other people in Canada. The notion is ridiculous. People who are formally defined as “status Indians” in Canada, as well as Aboriginal peoples who lack formal status, are no less mixed in their heritage. Nor are Canadians, generally, any less mixed than the Métis. Métis people
are
distinct from other Canadians. Not because they are more “mixed” than others in the country, but because they developed their own unique blend of people, language, culture, music, arts, lifestyles, and kinship connections. We continue to nourish an exotic, misplaced, and frequently discriminatory idea about people whose blood is deemed to be mixed, while failing to realize that in the year 2013, a great many of us — Aboriginal, black, white, Asian, and others — are equally mixed.

I would argue that the blood quantum argument, as raised in the lower courts during the Powley case, reflects enduring perceptions — within Aboriginal cultures, and in the broader Canadian community — about the fundamental link between racial identity and blood.

Some sixty-two years before its decision about the Powleys, the Supreme Court of Canada had considered protracted discussions of the racial identity of Indians and Inuit. In the case known as
Re Eskimos
, the court ruled in 1939 that Inuit could be considered Indian for the purposes of deciding that it was the responsibility of the federal government — and not the Québec government — to pay for providing supplies to rescue the Inuit of the Ungava Peninsula in northern Québec from starvation.

In an article commissioned by the federal government for a conference in Halifax in 2001, University of Ottawa law professor Constance Backhouse reviewed the many arguments, pro and con, that had been put to the court about the racial identities of Indians and Inuit. Backhouse observed: “The lawyers for the federal government urged the Supreme Court to draw a legal distinction between ‘Eskimos' and ‘Indians,' stressing that no one could deny that the ‘Eskimo had evolved a distinct civilization and that in physical characteristics, culture, customs, habits and language he forms a group highly differentiated from any of the other aborigines.' The lawyers for Québec, on the other hand, claimed that ‘Eskimos' were Indians ‘by their blood,' and ‘by definition.' ‘In a zoological sense,' they argued, ‘our eastern Eskimos of the Province of Québec' can reasonably be believed to be Indians ‘in bone, flesh and blood.'”

Yet again, identity was reduced to a notion of blood, and the argument appeared to hold sway with the Supreme Court of Canada, which ultimately accepted Québec's arguments, declared that Inuit were Indians, and left the federal government with the tab in a dispute about who should pay to help a starving people.

Canadian legislation such as the Indian Act does not explicitly refer to the term
blood quantum
. Canadians may not use the term as freely as Americans when it comes to defining indigenous identity. However, the principles of blood quantum continue to influence Canadian law and the ways in which some of Canada's 614 First Nations bands consider whether a person's bloodline makes him or her eligible for membership.

Many activists, scholars, and artists, in and out of indigenous communities, have commented on this phenomenon in Canada. Pamela Palmater, a Mi'kmaq lawyer and Ryerson University professor, wrote at length about the Canadian fixation on blood quantum and Aboriginal identity in her 2011 book,
Beyond Blood: Rethinking Indigenous Identity
. Palmater had personal reasons to take on the controversial subject. For years, she and her children were denied formal Indian status — generally required for Indian band membership, and to allow them to assert their rights as First Nations people — because her grandmother had married a non-Indian.

Until the Canadian government revised the Indian Act in 1985, any woman with formal Indian status lost that status if she married a non-Indian. This was not the case for Indian men, whose non-Native spouses (and children) automatically acquired Indian status. When Bill C-31 was passed in 1985 to amend the Indian Act, the Canadian media made much of the suggestion that sexism had been eliminated from the Act. But C-31 merely deferred the problem by one generation. This is because the children of Indian women who “marry out” acquire a second-class Indian status and do not automatically transmit status to their children. For women with this lower level of Indian status to register their children, they must disclose the father's identity and prove his Indian status.

This is how Palmater explained it in
Beyond Blood
:

There are many different ways in which the Indian Act has discriminated against non-status Indians. My grandmother and her direct descendants, from my father, to me, and to my children, all suffer from what is known as “cousins' discrimination,” which is a form of gender discrimination. The Indian Act gives lesser status to the descendants of Indian women who “married out” . . . compared to the descendants of Indian men who married out. We also experience the second-generation cut-off rule, which stipulates that two successive generations of an Indian parenting with a non-Indian will result in no status for their descendants. This kind of discrimination is based on a kind of notional blood quantum allocation . . . for determining who is really an Indian that is not reflective of actual blood quantum, descent, or culture.

Palmater goes on to note that federal legislation is responsible for creating additional divisions between indigenous peoples by creating two types of status Indians, each named after sections of the Indian Act: 6(1) Indians, who have full status and can transmit their status to their children, and 6(2) Indians, who have half status and who must partner with another registered Indian to transmit Indian status to their children. Palmater writes: “Descent from a single Indian ancestor can be no more than two generations (no less than one-quarter blood quantum) in order to be recognized.”

As Palmater says, notions of blood quantum permeate Canadian law even if the term does not appear directly. Essentially, her argument goes, restricting the number of people who can legally be called Indians and pursue their treaty rights has the effect of limiting government costs and steadily reducing the size of Canada's Aboriginal population.

Palmater opens the first chapter of
Beyond Blood
with an ominous quote from Duncan Campbell Scott, who served as deputy superintendent of Indian and Northern Affairs for Canada's federal government from 1913 to 1932. Scott wrote: “Our objective is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic and there is no Indian question, and no Indian Department.” While many Canadians today will cringe at this statement and wave it off as a mentality of yesterday, others will observe that Scott's intent continues to permeate federal legislation to this date.

The National Film Board documentary
Club Native
, by the Mohawk director Tracey Deer, follows four First Nations women who are at risk of being expelled from the Kahnawake reserve (located near Montreal) because they have married non-Mohawk men. This takes place in the wake of a federal government decision in 1985 to allow Indian bands in Canada to determine their own eligibility criteria. Housing and other resources are in demand at Kahnawake, and Indian bands in Canada do not receive federal support for members who are non-status Indians. Some on the reserve feel that “we have to strengthen the bloodline” — these precise words are declared by a band member interviewed for
Club Native
. As a result, the Kahnawake band and many other bands in Canada have adopted restrictive eligibility criteria incorporating the same blood quantum preoccupation that has influenced Canadian laws for centuries.