Harold Monteau: Lessons from Canada in indigenous law and policy

The Métis National Council poses in front of the Supreme Court of Canada on April 14, 2016, the day the historic Daniels v. Canada decision was issued. Photo from Twitter

Métis people in Canada are celebrating a landmark court decision that recognizes their right to be treated as indigenous. Harold Monteau, a member of the Chippewa Cree Tribe, wonders whether similar developments could help indigenous people in the United States:
The question I pose in this series is: Whether the United States Constitution and Laws do, or could, recognize non-federally recognized tribes and their members, state recognized tribes and their members, and individual Indian “Descendents” from “historic” tribes, and other indigenous people in the United States, as having a “trust/fiduciary relationship” with the United States under a similar analysis as the one used by the Supreme Court of Canada?

This is not meant to be a “Law Review” Article and I shall leave that to some enterprising Law Student to research and write. However, the answer to the posed question could have myriad effect on the individual Indians in the united states who are not members of “Federally Recognized Tribes”, or were “derecognized” or “terminated” or “disenrolled from Federally Recognized Tribes”, or are members of “State Recognized Tribes”, or Indians that can show descendantcy from a historic tribe or tribes but don’t meet “enrollment” criteria in any Tribe, or are descendants from other Indigenous People in the United States and its territories, such as Hawaii and Puerto Rico. Alaska Natives at one time were treated as an afterthought by the United States and the Department of Interior and the Bureau of Indian Affairs did not consistently act towards them as they did Federally Recognized Tribes with regard to federal benefits or treatment as governments.

In a Nutshell (pun intended), are there a class of Native Americans similar to Canada’s “Status Indians” and/or a class of “Indigenous Native Americans”, similar to Canada’s “Non-Status Indians”, to whom the U.S. may owe a fiduciary responsibility which it is now shirking? Could the U.S. take a lesson from Canada in resolving outstanding issues with regard to Native Hawaiian Recognition as Native Americans with attributes of sovereignty, including governmental rights over their people and lands? Could the same reasoning apply to other Indigenous populations in the American “Territories” that are in a state of limbo due to the inconsistencies in Federal Law as it applies to American Indigenous Populations? And, last but perhaps most importantly, does International Law and the United Nations Declaration on the Rights of Indigenous Peoples militate for the United States to answer these question in the positive?

Get the Story:
Harold Monteau: ‘Non-Status’ Indians in the U.S.? Part 1: A Lesson From the Canadian Supreme Court in Daniels v. Canada. (Indian Country Today 4/21)

Also Today:
Unanimous ruling says Ottawa has jurisdiction over all indigenous people (CBC 4/14)
SCC decision will have long-term implications: Métis journalist John Lagimodiere (CBC 4/14)
Ottawa Métis ecstatic following Supreme Court ruling (CBC 4/14)
What a landmark ruling means — and doesn't — for Métis, non-status Indians (CBC 4/16)
Federally Recognized: Métis, Other Non-Status Indians Rejoice at Canada Supreme Court Ruling (Indian Country Today 4/20)

Supreme Court of Canada Decision:
Daniels v. Canada (April 14, 2016)

Federal Court of Appeal Decision:
Canada v. Daniels (April 17, 2014)

Related Stories
Appeals court in Canada rules for Metis in Indian status case (04/17)
Court in Canada rules Metis and non-status Indians are 'Indians' (1/8)

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