On September 29th, 2022, the eve of the National Day for Truth and Reconciliation, Gitxsan citizen and caregiver Jessica Tait sat in Prince George Provincial Courts waiting for judge Susan Mengering to announce her latest decision.
Tait hoped this time, Mengering would finally grant her permanent custody of her maternal niece, eight-year-old Mia.
For years, Tait and her family had been fighting to bring Mia (a pseudonym) home. In 2015, when Mia was three months old, her struggling single mother had placed her in a temporary foster care agreement.
Though the Gitanmaax Band sought to keep her in the community, she was placed with a white foster family, then with relatives of her deceased father in “Ontario.”
During a visit to Gitanmaax, Tait and other relatives fought to keep her after the Ministry of Children and Family Development (MCFD) attempted to return her to “Ontario.” Now, after years of uncertainty, Tait hoped their fight might be over.
Instead, Mengering made a declaration that stunned her.
“I have serious concerns about the caregiver’s ethnocentric view of Indigeneity,” said Mengering, arguing that Tait had failed to show respect for the Métis identity asserted by Mia’s paternal relatives.
Before granting permanent custody, Mengering would require Tait and the Gitanmaax Band, of which Mia is a member, to agree to a plan acknowledging her Métis heritage.
The only problem? Mia’s paternal relatives identified as members of the Eastern Woodland Métis Nation in “Nova Scotia” — a controversial group whose claims to Métis identity are widely disputed.
The Eastern Woodland Métis
The Eastern Woodland Métis Nation, led by “grand chief” Mary Lou Parker, was originally founded in the 1970s and was revived in the 1990s after a period of dormancy.
In a 2019 interview with CBC, Parker said the organization invites any individual that can prove they have “even a drop” of Mi’kmaq heritage to sign up for an Eastern Woodland Métis “identification card.” In the same interview, she claimed they have more than 70,000 members.
Critics of the Eastern Woodland Métis have argued that unlike the distinct Métis people of Louis Riel, who have homelands in Western Canada, people of mixed blood in the Maritimes and “Quebec” either integrated into Indigenous communities or assimilated with European newcomers.
Since the 2003 Powley decision, the number of people who self-identify as Métis from Eastern Canada has soared, with census data showing a 125 per cent increase in people who identified as Métis between 2006 to 2016.
According to the Métis Nation of British Columbia (MNBC) — the designated governing authority for all Métis in the province — the four criteria required to be eligible for citizenship are: a person who self-identifies as Métis; is distinct from other Aboriginal peoples; is of historic Métis Nation ancestry and is accepted by the Métis Nation.
The Eastern Woodland Métis Nation is not recognized by the federal government, nor is it associated with the Métis Nation or Métis National Council. The website states their members: “come from all walks of life and heritage — Mi’kmaq, Cree, Ojibwa, Blackfoot, Sioux, or any other Native peoples.”
In an earlier court hearing, a letter from the MNBC was offered to Mengering, which said that the Eastern Woodland Métis Nation is not associated with or represented by the Métis National Council, and that its definition of Métis is incongruent with the national definition.
In 2018, the Métis National Council and the Assembly of Nova Scotia Mi’kmaq Chiefs published a Memorandum of Understanding denouncing the existence of any Métis homeland in “Nova Scotia.”
“The only rights holders in Nova Scotia are the Mi’kmaq,” said Chief Terrance Paul, co-chairman for the Assembly.
The Powley Test
The Gitanmaax Band agreed that it is in Mia’s best interests to know whether or not she is Métis, and in order to determine her Métis lineage, the Band’s legal counsel suggested Mengering apply “the Powley Test.”
The Powley Test was derived from the 2003 Powley decision: the first major Aboriginal rights case concerning Métis peoples, which laid out a set of criteria to not only define what might constitute a Métis right, but also the crucial matter of who is entitled to those rights.
But according to judge Mengering, the Powley Test only applies in criminal matters.
“In a child protection context, it is only necessary for my purposes to verify there is some evidentiary basis to the self-identification as Métis,” said Mergering.
Because the case isn’t concerned with a “site-specific Aboriginal right,” Mengering said she need not establish that the Métis community to which the child’s deceased father belonged, has “any degree of continuity and stability, historically and today.”
The Gitanmaax Band’s lawyer Kirsten Barnes said Mengering’s judgment “erodes the rights of Aboriginal Nations to self-determine their own citizenship.”
Even if Mengering was unwilling to apply the Powley Test itself, Barnes believes she should have still used its thresholds to determine whether or not the child’s paternal relatives are Métis, and are therefore entitled to the rights of Métis people. Barnes also argued that based on the statements of the MNBC, membership in the Eastern Woodland Métis Nation is not proof that a person is Métis.
“I need not decide that issue,” said Mengering, who evidenced Mia’s paternal family’s Métis “scarf” and “bow hunting” as proof of her Métis heritage.
“But even if I agreed, a Métis person does not stop being Métis simply because they move between provinces.”
Barnes believes that Mengering’s lack of knowledge of Métis history led to her “complete refusal” to acknowledge the Eastern Woodland Métis as a “fraudulent” group, instead defaulting to “what Indigenous people would call tokenism” as evidence.
“We told her that the Mi’kmaq are the only Aboriginal rights holders in Nova Scotia,” said Barnes, “but she twisted our arguments to say that we said Métis people aren’t allowed to move around.”
Further, Mengering supported a notion made by the Métis Commission for Children and Families of BC (MCCFBC) — the legislative representative for Metis families involved in the child welfare system — that there are “many reasons why people cannot trace their lineage…including historical and ongoing colonialism, displacement and forced assimilation through residential schools and the Sixties Scoop.”
Tait says when this idea was first presented to Mengering by an MCFD lawyer in June 2022, she and Mia’s mother Caroline Harris began to cry. Tait and Harris were the first generation of their family not to go to residential “school,” and the cruelty of seeing their own history of disconnection appropriated against them was crushing.
According to Barnes, Mengering never asked the paternal family whether they had been impacted by the residential “school” system or the Sixties Scoop, and there was no evidence submitted to suggest they had.
In fact, Barnes said her team was able to gather evidence through the paternal family’s genealogy that proves the contrary.
“The judge is supposed to be a trier of fact,” said Tait. “Instead of being impartial, she was aiding the MCFD’s argument.”
To test the organization’s policy, Tait applied to the Eastern Woodland Métis Nation for a membership card to see if she’d be accepted.
“All we did was send a picture of my Gitxsan dad and a picture of [my partner’s] Cree mom, both have brown skin,” said Tait. “We paid our $60 and we got our cards sent to us within 24 hours.”
Tait brought her new identification card to court, in the hopes of discrediting the Eastern Woodland Métis Nation. Instead, Mengering denounced Tait’s “high-handed attitude” in obtaining the card.
“‘[Tait] appears to have little respect for the courts or the judicial process,” said Mengering, and refused to accept the card because the self-identification was not made in good faith.
“But when you apply to a place like the Eastern Woodland Métis Nation, you’re not doing it in good faith, you’re doing it because you know that they’re going to issue you a card that says you have special rights as an Aboriginal person,” said Barnes. “There’s literally no other benefit to paying for one of those cards other than being able to use it.”
The ‘Cultural Safety’ Agreement
In her September 29 decision, Judge Mengering found Mia to be both Gitxsan and Métis. Her judgment also determined that a child’s social worker is under no obligation, when dealing with self-identifying Indigenous families, to make inquiries or verify their Indigeneity.
“It’s so terrible,” said Barnes. The policies designed to keep Indigenous children connected to their nations and cultures can now be appropriated by anyone who declares themselves to be Indigenous, with their claim treated as equal.
“[Mia] would be in Ontario right now with a non-Indigenous family and the judge would have signed off because according to her, [Mia’s] cultural heritage would be maintained because she’s with an Eastern Woodland family.”
As a result of this decision, Tait would need to sign a Cultural Safety Agreement (CSA) to ensure Mia’s Métis heritage is maintained before she can be granted permanent custody.
According to the British Columbia Ministry of Children and Family Development (MCFD), the intent of a CSA is “to facilitate an Indigenous child’s internalization of his or her culture.” It usually comes in the form of a PDF, which includes appropriate cultural activities for the caregivers to facilitate for the Indigenous child. It’s a document originally designed for non-Indigenous families looking after Indigenous children.
In November 2021, when the Gitanmaax Band first received a 12-page CSA from the Métis Commission reflecting the Red River Métis culture, they were confused. The document includes fifteen “commitments” for her to abide by, including supporting Mia to learn Michif; encouraging Mia to display her sash and to wear it at community events; and to provide Mia with opportunities to experience fiddle and jigging YouTube videos at least once a week.
“It’s obviously a template because they forgot to swap out the text reading ‘[Insert child’s name]’,” said Tait.
Both the Gitanmaax Band and Tait have requested that the Métis Commission clarify Mia’s connection to the Red River Métis, a connection that according to Tait, was never disclosed in court. So far, neither the Gitanmaax Band nor Tait have received a response.
“I think it’s a situation of them just going too far down this road,” said Barnes, who believes the Métis Commission failed to carry out due diligence in verifying the paternal family’s claim to Metis heritage. “The reason the Métis Commission can’t develop a CSA that reflects the Metis in Nova Scotia is because there aren’t any there. There’s no homeland there.”
Rather than sign the Red River-centric CSA, Tait created her own in collaboration with the paternal family. The four-page abridged document includes commitments in supporting Mia’s access to her paternal family, and to allow the paternal family to take the lead with respect to their stated Mi’kmaq family heritage. According to Tait, they have not received a response from the MCCFBC or the MCFD.
In a letter dated February 15th, 2023 to Mitzi Dean, Minister of Children and Family Development, the Métis Nation of British Columbia stated they are “in full support” of Tait, with there being “no verifiable documented trace in [Mia’s] paternal line of any Métis ancestry.”
MNBC went further to say that any artificial imposition of Métis identity imposed on a First Nations child threatens their developing of an authentic sense of self as a First Nations person, and may have long-term negative socio-cultural impacts for them, just as the imposition of a non-Indigenous identity would have long-term impacts.
The MCFD declined to respond to previous inquiries about this case; by email, it stated it is “unable to comment on matters involving specific children, youth or families.”
The MCFD and Métis Commission’s persistence forced proceedings to continue into another calendar year, prolonging uncertainty for a child who has been in temporary care agreements since she was just three-months old.
On March 16, parties met for a final hearing where it was thought Mia’s future relied on all parties agreeing to the CSA for her so-called Métis heritage. The hearing began with the Métis Commission stating they were unable to come to an agreement, but swiftly announced they would agree nonetheless to Mia’s permanent placement with Jessica Tait. After each party agreed, the judge made her order for Mia’s placement with Tait.
For the first time in her life, Mia is able to live permanently with her maternal family. She will continue living next door to her grandpa and granny, and going to school with her siblings and cousins.
While this is a victory for Mia’s family and the Gitanmaax Band, it doesn’t erase the years of fighting they were forced to endure, or how damaging it is to see the legitimacy of Indigenous cultures and claims undermined by so-called Canada’s justice system. Nor does it undo the lifetime of impermanence for a little girl, whose future and identity was on the line.
“We’ve spent probably hundreds of thousands of dollars on legal counsel trying to get her back,” said Tait. Barnes agrees: “And the MCFD has probably spent more because they’ve worked so hard to fight us every step of the way.”
But for the Gitanmaax Band, it’s all for a purpose.
“It’s not just one child, it’s the first one. And you have to start somewhere,” said Barnes.
“Now at least the MCFD knows, the Métis Commission knows — we’re never going to back down so they can’t do this ever again. And I don’t think they will, I think they will be far more careful, the next time they come up against the Gitxsan.”
Editor’s note: This is a corrected story. A previous version incorrectly stated that ‘Mia’ was three years old when she was placed into foster care. In fact she was three months old. We apologize for the error.
