Darren O'Toole | University of Ottawa | Université d'Ottawa (original) (raw)

Papers by Darren O'Toole

Trust, Distrust, and Mistrust in Multinational Democracies

Foster 2007, 26. 3 Personal communication with Charles L. Lippert. "wiisaakode is wiiS + aakw + i... more Foster 2007, 26. 3 Personal communication with Charles L. Lippert. "wiisaakode is wiiS + aakw + ide (wiiS-smoke-up, charcoal, half-burn; aakw-wood; ide-be)." One also finds the spelling waasaakode. According to Lippert, this could either come from an initial vowel change form, as ii ðaa, which nominalized the verb and carries the meaning of "the one who is" half-burnt wood. It could also be derived from the prefix waase-(light, clear). The reference to wood could be a play on words: in some areas, the word for Frenchman is wemitigoozhi. The noun mitig can either mean a tree (animate) or a branch (inanimate). [...] the following classes of persons are and shall be considered as Indians belonging to the Tribe or Body of Indians interested in such lands: First.-All persons of Indian blood, reputed to belong to the particular Body or Tribe of Indians interested in such lands, and their descendants. Secondly.-All persons intermarried with any such persons and residing amongst them, and the descendants of all such persons. Thirdly.-All persons residing among such Indians, whose parents on either side were or are Indians of such Body or Tribe, or entitled to be considered as such: And Fourthly.-All persons adopted in infancy by any such Indians, and residing in the Village or upon the lands of such Tribe or Body of Indians, and their descendants.

Allotment Stories: Indigenous Land Relations under Settler Siege., 2022

Part II, “Racial and Gender Taxonomies,” includes essays that explicitly invoke the roles of raci... more Part II, “Racial and Gender Taxonomies,” includes essays that explicitly invoke the roles of racialization in privatization schemes and gender ideologies on Indigenous communities, though other essays also implicitly take up race and gender—and, we would add, class and labor—as categories of analysis. The Canadian context is elabo- rated by Darren O’Toole (Métis), who considers the complex function of “half-breed scrip” in dispossessing Métis people in Canada and the upper United States, a legal mechanism that recognized Métis claims while simultaneously dispossessing them.

Bead by Bead. Constitutional Rights and Métis Community, edited by Yvonne Boyer and Larry Chartrand. Vancouver: UBC Press. , 2021

"Darren O’Toole, reminds us of the important question of identity by analyzing the categorization... more "Darren O’Toole, reminds us of the important question of identity by analyzing the categorization of the Métis as “Aboriginal” people. He shows that governments and the courts have relied on certain understandings of the term “Aboriginal” to deny the existence of the Métis as a distinct people and to minimize their rights. In discussing the legal doctrines of the empty box, derivative Indian rights, and distinct Aboriginal people, he demonstrates that all three work against the Métis as a distinct people. He proposes a fourth option – the autochthonous or Indigenous peoples doctrine. His suggestion builds on previous chapter discussions of missed or misinterpreted court analysis of Métis identity and constitutional rights. An advantage of the autochthonous doctrine is that it does not require making questionable legal distinctions between Métis and First Nations peoples. Nor does it impose impossible criteria of indigene-ity on peoples who did not exist before contact with Europeans. O’Toole concludes by arguing that the Indigenous rights doctrine (and thus Métis rights) can coherently develop when it moves beyond pre-contact and racial predispositions" (Boyer and Chartrand, 2021: 11).

Canadian Native Law Reporter, 2020

Judicial Tales Retold: Reimagining Indigenous Rights and Jurisprudence. An imaginary appeal of Ma... more Judicial Tales Retold: Reimagining Indigenous Rights and Jurisprudence. An imaginary appeal of Manitoba Métis Federation v Canada to the Indigenous Nations Court.

Aboriginal Policy Studies, Vol. 8, no. 2: pp. 68-95, 2020

While Justice Dallaire was of the opinion that it would be “easier to nail Jell-O to the wall” th... more While Justice Dallaire was of the opinion that it would be “easier to nail Jell-O to the wall” than draw any conclusions about the existence of a “Métis” community in Maniwaki, the Séguin affaire is nevertheless scheduled to go to trial in 2020. The lawyer for the accused in the Tremblay affaire has asked for a trial novo due to “new evidence” that has come forward. This “new evidence” is partly from Dr. Sébastien Malette’s expert witness report and testimony in the Séguin affaire as well as from Guillaume Marcotte’s M.A. thesis that was recently published as a monograph. Malette and Marcotte also published an article together in which they claim that a certain Marie-Louise Riel of the Gatineau region was Louis Riel’s aunt and that she hid him from Canadian authorities. This article seeks to evaluate both of these claims, as well as to contextualize certain quotes from Louis Riel, Gabriel Dumont and Valéry Havard that they mobilize as further “evidence” of the existence of historical “Métis” communities in eastern Canada.

Renewing Relationships: Indigenous Peoples and Canada, eds Karen Drake and Brenda Gunn. Saskatoon: Native Law Centre, 2019

Canadian Yearbook of Human Rights, 2015

Case commentary on: Hamilton Health Sciences Corporation v. D.H., P.L.J., Six Nations of the Gra... more Case commentary on: Hamilton Health Sciences Corporation v. D.H., P.L.J., Six Nations of the Grand River Child and Family Services Department and Brant Family and Children's Services, (2014) OCJ.

Alberta Law Review 52(3): 669-688., 2015

This article addresses the Supreme Court’s recent decision in Manitoba Metis Federation v. Canada... more This article addresses the Supreme Court’s recent decision in Manitoba Metis Federation v. Canada (Attorney General), the Court’s interpretation of section 31 of the Manitoba Act, 1870, and the ways in which the ruling seems guided by, or at least concurs with, the works and opinions of Thomas Flanagan. The author highlights various cases which have dealt with Métis rights, established canons of statutory interpretation, Crown obligations, opposing scholarly views, and the distinction between historical contextual analysis and historical legal analysis. In doing so, the
author argues that the decision is essentially an invocation and resuscitation of the “empty box” doctrine. This doctrine serves both to recognize Métis rights and revoke them of any tangible substance that such recognition might bring, and seemingly
obfuscates the plain meaning rule of interpretation applied to the section 31 phrase: “towards the extinguishment of the Indian Title.”

De Pierre Radisson à Louis Riel: voyageurs et Métis, Presses universitaires de Saint-Boniface, 2014

Aboriginal Policy Studies (2014) 3, 1 & 2: 178-187.

Dimitrios Karmis et François Rocher (dir.), La dynamique confiance/méfiance dans les démocraties multinationales, Québec: Presses de l'université Laval, 2012.

Les arts performatifs et spectaculaires des premières nations de l'est du Canada, Paris: L'Harmattan, 2014

Métis in Canada. History, Identity & Politics, Edmonton: University of Alberta Press, 2013

Manitoba History, 69: 17-29., 2012

While section 31 of the Manitoba Act, 1870 recognized the ‘Indian’ title of the Métis, the leader... more While section 31 of the Manitoba Act, 1870 recognized the ‘Indian’ title of the Métis, the leaders of the Resistance of 1869-1870 often tried to avoid phrasing land claims in these terms. To interpret their ambiguous public statements on the subject, the author applies the Cambridge School’s method of textual interpretation of political ideas to their speech acts. When such statements are placed in their practical political context, it becomes apparent that Métis claims to ‘Indian’ title risked alienating the fragile support of the Scots Half-Breeds. The reason for the vehement opposition of the latter is to be found in the binary colonial convention that opposed the rights of ‘savages’ and the rights of the ‘civilized’.

Résumé. Après plus de deux décennies, un tribunal manitobain a fixé une date pour entendre l’affa... more Résumé. Après plus de deux décennies, un tribunal manitobain a fixé une date pour entendre l’affaire FMM qui touche à la concession des terres aux Métis selon l’art. 31 de la Loi de 1870 sur le Manitoba. Le politologue Thomas Flanagan répète inlassablement que les Métis ne se sont jamais décrits comme peuple aborigène ayant des droits fonciers spéciaux pendant la résistance de 1869–70. Puisqu’il est fort probable que la Couronne se serve encore une fois de la recherche de Flanagan dans l’affaire FMM, le moment est opportun pour réexaminer les arguments de Flanagan. Dans ce but, l’auteur examine ici de plus près certaines des prétentions de Flanagan, notamment celles qui veulent que : 1) les Métis n’aient jamais revendiqué le statut de peuple autochtone ou des droits autochtones pendant les événements de 1869–70; 2) les listes de droits ne contiennent aucune référence aux droits aborigènes des Métis; et 3) l’abbé Ritchot i) n’ait eu aucun mandat de négocier l’extinction du titre aborigène des Métis et une concession de terres; ii) n’ait été qu’un délégué parmi trois.

The trial court finally rendered a decision in the MMF v. Canada case concerning the Métis land g... more The trial court finally rendered a decision in the MMF v. Canada case concerning the Métis land grant in s. 31 of the Manitoba Act, 1870. Among other things, the expert witness for the Crown, political scientist Thomas Flanagan, has claimed that the Métis never claimed Indian title during the events of 1869-70. As the trial judge largely adopted Flanagan’s historical interpretation as his own in drawing conclusions of fact, it is timely to re-examines these assertions.

More than a century after the adoption of section 31 of the Manitoba Act, 1870, which granted 1.4... more More than a century after the adoption of section 31 of the Manitoba Act, 1870, which granted 1.4 million acres to the Métis of Manitoba, the descendants were unable to convince a trial judge that the federal and provincial governments improperly implemented this section. In his decision, Judge MacInnes seems to have relied heavily on the historical interpretation of the Crown’s expert witness, political scientist Thomas Flanagan. In this article, the author re-examines the historical evidence concerning the genealogy rather than the implementation of s. 31 and finds that, contrary to what Flanagan has asserted, the Métis did indeed make land claims during the Resistance of 1869-70 and mandated their delegate, the abbot Noël-Joseph Ritchot, to negotiate a territorial enclave as consideration for the surrender of their derivative Indian title.

Trust, Distrust, and Mistrust in Multinational Democracies

Foster 2007, 26. 3 Personal communication with Charles L. Lippert. "wiisaakode is wiiS + aakw + i... more Foster 2007, 26. 3 Personal communication with Charles L. Lippert. "wiisaakode is wiiS + aakw + ide (wiiS-smoke-up, charcoal, half-burn; aakw-wood; ide-be)." One also finds the spelling waasaakode. According to Lippert, this could either come from an initial vowel change form, as ii ðaa, which nominalized the verb and carries the meaning of "the one who is" half-burnt wood. It could also be derived from the prefix waase-(light, clear). The reference to wood could be a play on words: in some areas, the word for Frenchman is wemitigoozhi. The noun mitig can either mean a tree (animate) or a branch (inanimate). [...] the following classes of persons are and shall be considered as Indians belonging to the Tribe or Body of Indians interested in such lands: First.-All persons of Indian blood, reputed to belong to the particular Body or Tribe of Indians interested in such lands, and their descendants. Secondly.-All persons intermarried with any such persons and residing amongst them, and the descendants of all such persons. Thirdly.-All persons residing among such Indians, whose parents on either side were or are Indians of such Body or Tribe, or entitled to be considered as such: And Fourthly.-All persons adopted in infancy by any such Indians, and residing in the Village or upon the lands of such Tribe or Body of Indians, and their descendants.

Allotment Stories: Indigenous Land Relations under Settler Siege., 2022

Part II, “Racial and Gender Taxonomies,” includes essays that explicitly invoke the roles of raci... more Part II, “Racial and Gender Taxonomies,” includes essays that explicitly invoke the roles of racialization in privatization schemes and gender ideologies on Indigenous communities, though other essays also implicitly take up race and gender—and, we would add, class and labor—as categories of analysis. The Canadian context is elabo- rated by Darren O’Toole (Métis), who considers the complex function of “half-breed scrip” in dispossessing Métis people in Canada and the upper United States, a legal mechanism that recognized Métis claims while simultaneously dispossessing them.

Bead by Bead. Constitutional Rights and Métis Community, edited by Yvonne Boyer and Larry Chartrand. Vancouver: UBC Press. , 2021

"Darren O’Toole, reminds us of the important question of identity by analyzing the categorization... more "Darren O’Toole, reminds us of the important question of identity by analyzing the categorization of the Métis as “Aboriginal” people. He shows that governments and the courts have relied on certain understandings of the term “Aboriginal” to deny the existence of the Métis as a distinct people and to minimize their rights. In discussing the legal doctrines of the empty box, derivative Indian rights, and distinct Aboriginal people, he demonstrates that all three work against the Métis as a distinct people. He proposes a fourth option – the autochthonous or Indigenous peoples doctrine. His suggestion builds on previous chapter discussions of missed or misinterpreted court analysis of Métis identity and constitutional rights. An advantage of the autochthonous doctrine is that it does not require making questionable legal distinctions between Métis and First Nations peoples. Nor does it impose impossible criteria of indigene-ity on peoples who did not exist before contact with Europeans. O’Toole concludes by arguing that the Indigenous rights doctrine (and thus Métis rights) can coherently develop when it moves beyond pre-contact and racial predispositions" (Boyer and Chartrand, 2021: 11).

Canadian Native Law Reporter, 2020

Judicial Tales Retold: Reimagining Indigenous Rights and Jurisprudence. An imaginary appeal of Ma... more Judicial Tales Retold: Reimagining Indigenous Rights and Jurisprudence. An imaginary appeal of Manitoba Métis Federation v Canada to the Indigenous Nations Court.

Aboriginal Policy Studies, Vol. 8, no. 2: pp. 68-95, 2020

While Justice Dallaire was of the opinion that it would be “easier to nail Jell-O to the wall” th... more While Justice Dallaire was of the opinion that it would be “easier to nail Jell-O to the wall” than draw any conclusions about the existence of a “Métis” community in Maniwaki, the Séguin affaire is nevertheless scheduled to go to trial in 2020. The lawyer for the accused in the Tremblay affaire has asked for a trial novo due to “new evidence” that has come forward. This “new evidence” is partly from Dr. Sébastien Malette’s expert witness report and testimony in the Séguin affaire as well as from Guillaume Marcotte’s M.A. thesis that was recently published as a monograph. Malette and Marcotte also published an article together in which they claim that a certain Marie-Louise Riel of the Gatineau region was Louis Riel’s aunt and that she hid him from Canadian authorities. This article seeks to evaluate both of these claims, as well as to contextualize certain quotes from Louis Riel, Gabriel Dumont and Valéry Havard that they mobilize as further “evidence” of the existence of historical “Métis” communities in eastern Canada.

Renewing Relationships: Indigenous Peoples and Canada, eds Karen Drake and Brenda Gunn. Saskatoon: Native Law Centre, 2019

Canadian Yearbook of Human Rights, 2015

Case commentary on: Hamilton Health Sciences Corporation v. D.H., P.L.J., Six Nations of the Gra... more Case commentary on: Hamilton Health Sciences Corporation v. D.H., P.L.J., Six Nations of the Grand River Child and Family Services Department and Brant Family and Children's Services, (2014) OCJ.

Alberta Law Review 52(3): 669-688., 2015

This article addresses the Supreme Court’s recent decision in Manitoba Metis Federation v. Canada... more This article addresses the Supreme Court’s recent decision in Manitoba Metis Federation v. Canada (Attorney General), the Court’s interpretation of section 31 of the Manitoba Act, 1870, and the ways in which the ruling seems guided by, or at least concurs with, the works and opinions of Thomas Flanagan. The author highlights various cases which have dealt with Métis rights, established canons of statutory interpretation, Crown obligations, opposing scholarly views, and the distinction between historical contextual analysis and historical legal analysis. In doing so, the
author argues that the decision is essentially an invocation and resuscitation of the “empty box” doctrine. This doctrine serves both to recognize Métis rights and revoke them of any tangible substance that such recognition might bring, and seemingly
obfuscates the plain meaning rule of interpretation applied to the section 31 phrase: “towards the extinguishment of the Indian Title.”

De Pierre Radisson à Louis Riel: voyageurs et Métis, Presses universitaires de Saint-Boniface, 2014

Aboriginal Policy Studies (2014) 3, 1 & 2: 178-187.

Dimitrios Karmis et François Rocher (dir.), La dynamique confiance/méfiance dans les démocraties multinationales, Québec: Presses de l'université Laval, 2012.

Les arts performatifs et spectaculaires des premières nations de l'est du Canada, Paris: L'Harmattan, 2014

Métis in Canada. History, Identity & Politics, Edmonton: University of Alberta Press, 2013

Manitoba History, 69: 17-29., 2012

While section 31 of the Manitoba Act, 1870 recognized the ‘Indian’ title of the Métis, the leader... more While section 31 of the Manitoba Act, 1870 recognized the ‘Indian’ title of the Métis, the leaders of the Resistance of 1869-1870 often tried to avoid phrasing land claims in these terms. To interpret their ambiguous public statements on the subject, the author applies the Cambridge School’s method of textual interpretation of political ideas to their speech acts. When such statements are placed in their practical political context, it becomes apparent that Métis claims to ‘Indian’ title risked alienating the fragile support of the Scots Half-Breeds. The reason for the vehement opposition of the latter is to be found in the binary colonial convention that opposed the rights of ‘savages’ and the rights of the ‘civilized’.

Résumé. Après plus de deux décennies, un tribunal manitobain a fixé une date pour entendre l’affa... more Résumé. Après plus de deux décennies, un tribunal manitobain a fixé une date pour entendre l’affaire FMM qui touche à la concession des terres aux Métis selon l’art. 31 de la Loi de 1870 sur le Manitoba. Le politologue Thomas Flanagan répète inlassablement que les Métis ne se sont jamais décrits comme peuple aborigène ayant des droits fonciers spéciaux pendant la résistance de 1869–70. Puisqu’il est fort probable que la Couronne se serve encore une fois de la recherche de Flanagan dans l’affaire FMM, le moment est opportun pour réexaminer les arguments de Flanagan. Dans ce but, l’auteur examine ici de plus près certaines des prétentions de Flanagan, notamment celles qui veulent que : 1) les Métis n’aient jamais revendiqué le statut de peuple autochtone ou des droits autochtones pendant les événements de 1869–70; 2) les listes de droits ne contiennent aucune référence aux droits aborigènes des Métis; et 3) l’abbé Ritchot i) n’ait eu aucun mandat de négocier l’extinction du titre aborigène des Métis et une concession de terres; ii) n’ait été qu’un délégué parmi trois.

The trial court finally rendered a decision in the MMF v. Canada case concerning the Métis land g... more The trial court finally rendered a decision in the MMF v. Canada case concerning the Métis land grant in s. 31 of the Manitoba Act, 1870. Among other things, the expert witness for the Crown, political scientist Thomas Flanagan, has claimed that the Métis never claimed Indian title during the events of 1869-70. As the trial judge largely adopted Flanagan’s historical interpretation as his own in drawing conclusions of fact, it is timely to re-examines these assertions.

More than a century after the adoption of section 31 of the Manitoba Act, 1870, which granted 1.4... more More than a century after the adoption of section 31 of the Manitoba Act, 1870, which granted 1.4 million acres to the Métis of Manitoba, the descendants were unable to convince a trial judge that the federal and provincial governments improperly implemented this section. In his decision, Judge MacInnes seems to have relied heavily on the historical interpretation of the Crown’s expert witness, political scientist Thomas Flanagan. In this article, the author re-examines the historical evidence concerning the genealogy rather than the implementation of s. 31 and finds that, contrary to what Flanagan has asserted, the Métis did indeed make land claims during the Resistance of 1869-70 and mandated their delegate, the abbot Noël-Joseph Ritchot, to negotiate a territorial enclave as consideration for the surrender of their derivative Indian title.

Laronde was a French man (born 1763) who married an Ojibway woman, Madeleine Pewadjiwonokwe, arou... more Laronde was a French man (born 1763) who married an Ojibway woman, Madeleine Pewadjiwonokwe, around 1797. Notably, the MNO includes three Larondes as "Verified Métis family Lines" for membership in the "historic Mattawa Métis community," including one line (Laronde-Sauvage) that was used by nearly 600 members to join the Algonquins of Ontario land claim. The second family listed by Jones is the Antoine family, a family that featured prominently in Department of Indian Affairs correspondence. The family is descended from the union of Antoine Nishkwiwisens and Elisabeth Gagnon, both Nipissing/Algonquin, who married at the Oka mission on July 16, 1832. Their four children and at least nine grandchildren were enumerated in Mattawa in the 1881 census, all listed as "Indian." In the 1901 Census, at least two of the households were listed as speaking Algonquin at home. In the same census, three generations of the Antoine family were listed as "Algonquin French Breed" under the designation for "Colour." In 1910, twenty-nine members of the Antoine family, mostly living in Mattawa, were reinstated to the Robinson-Huron Treaty annuity paylists with arrears covering 1851 to 1909 as Nipissing Band members. Despite the fact that the Antoine family clearly sought to be recognized as Nipissing/Algonquin in its known correspondences with authorities, Jones nonetheless takes the fact that census workers listed them as "Algonquin French Breed" in one classification in the 1901 census and lived in Mattawa as evidence that they were a founding "mixed ancestry" family in the region. About 420 members of the Algonquins of Ontario land claim use this family as "root ancestors" for membership (MNO's Bernard-Papineau line). The third family listed by Jones is the Bastien family, another family that featured prominently in Department of Indian Affairs correspondence. The family is descended from the union of Charles Colton (said to be white British-American, born around 1807) and Marie Josephte Sibikwe (born about 1811), Antoine Nishkwiwisens' sister (see above). Sibikwe remarried French-Canadian Louis Bastien in 1844. The Sibikwe-Bastien family mostly resided in the Mattawa region throughout the 1800s and are also listed as "Algonquin French Breed" by the census enumerator in 1901 under the designation for "Colour." Sibikwe's sons Ignace Bastien and Antoine Bastien applied for reinstatement to the Robinson-Huron Treaty rolls in 1910 but their request was denied, since the Department ruled that their Indigenous ancestry was solely derived from the maternal side. Again, given the evidence provided by Jones, it's unclear why she doesn't consider the Bastien family a Nipissing-Algonquin family. About 270 members of the Algonquins of Ontario land claim use the same ancestral line for membership as the MNO (Bastien-Sibikwe line). The fourth family listed by Jones is the Grandlouis family, another family featured prominently in Department of Indian Affairs correspondence. The review of this correspondence confirms once again that members of the Grandlouis were often considered members of the Nipissing Band, living in and around the reserve. Several second-generation family members lived in Mattawa and married into prominent mixed-race, Algonquin/Nipissing families. Jones provides no evidence that this family considered itself anything other than Algonquin/Nipissing. The only potential evidence to a "Métis" identity is that some of the family members were listed as "Chippewa French Breed" or simply "French Breed" in the 1901 census under the designation for "Colour," though Jones herself was unable to find any evidence of French ancestry in this