The Power of Legal and Historical Fiction(s): The Daniels Decision and the Enduring Influence of Colonial Ideology

Abstract

It’s been several months since the Supreme Court of Canada (SCC) rendered its judgment in Daniels v. Canada (2016), affirming that the term “Indian” in s. 91(24) of the Constitution Act (1867) includes Métis and Non-Status Indians. There is a general hope that the decision marks a turning point for Métis and Non-Status Indians within Canada’s colonial structures. I’m not certain this optimism is justified. The judgment was reached based on the types of historical evidence presented and, consequently, there are a couple of statements within the written judgment that give me pause to question how the evidence regarding the histories of Métis and Non-Status Indians were presented to, and then interpreted by, the justices. Bearing in mind that the crux of the case rested on the linguistic meaning and evolution of the term “Indian” in Canadian society through law and policy, evidence was introduced about how the term was used at various points in the past, as well as the context of that usage in order to demonstrate the evolution of a Canadian legal and historical fiction that increasingly restricted the idea of what an Indian was. What the SCC did with the Daniels Decision is reverse that restrictive trend for Indians while constructing new problems.