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Phase Three

Acts of Definition

Set Two

Moving toward the Indian Act, 1876

The Act of Union, February 10, 1841, merged the two colonies of Upper and Lower Canada into the Province of Canada.

The political union of Upper and Lower Canada proved contentious. Reformers in both Canada West (formerly Upper Canada, Ontario) and Canada East (formerly Lower Canada, Quebec) worked to repeal limitations on the use of the French language in the Legislature. The two colonies remained distinct in administration, election of officials, and in some legislation that was passed.

I introduce this to you so that you have context. At the passing of the British North America Act, 1867 there were already existing levels of government – provincial and territorial. The only new layer to that was the federal one. The Province of Canada ceased to exist upon confederation in 1867.

The 1850s were a time for political reforms and infrastructure building in the Province of Canada, and out of that the first statutory regulations that defined who would be jurisdictionally recognized as Indian, and outlined rights and limitations that applied over Indian people.

I have provided Acts that I see as the most significant, and the most significant points from them that continue our ‘journey’ forward through time. I will include links to the Acts themselves if you would like to gain more detail, and if you have problems opening simply copy and paste the link into your web browser. I will provide a video lecture later in which I will walk us through them.

An
Act for the Better Protection of the Lands and Property of Indians in Lower Canada, 1850

· first definition of the term “Indian
· All persons of Indian blood, reputed to belong to a particular body or tribe of Indians interested in a particular region/lands and their descendants;
· All persons intermarried with any such Indians, and residing among them and all the descendants of such persons’
· 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
· 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.

(this file is safe to open, though a pop-up may come up and ask if you want to open)

While the definition was broadly construed, it is important to note that it was the government that created this Act, and it was without consultations with Indian people. Indian people were not given the power to define their own communities.

This also marks the beginning of Indian status being ‘officially’ linked to band membership, something that doesn’t change until 1987 (see discussion in previous set of notes).

An
Act for the Protection of the Indians in Upper Canada from Imposition and the Property Occupied or Enjoyed by Them from Trespass and Injury, 1850

· Outlined the provision that all land dealings with Indian people had to take place exclusively with the Crown through Crown Land Commissioners;
· It exempted Indian people from liens on their property;
· It exempted Indian people from taxation;
· It stated that trespassers on Indian lands were directed to pay fines to the Crown Land Commissioners;
· Contained a clause that prohibited the pawning or exchange of Indian goods;
· Indian Commissioners were given power to act as Justices of the Peace; and
· Prohibited the sale of liquor to Indian people.

https://bnald.lib.unb.ca/sites/default/files/UnC_1850_cap%2074_edited.pdf (this file is safe to open, though like in the previous Act, a pop-up may come up and ask if you want to open)

At this time, the government of the united Upper and Lower Canada’s main objective was the protection of Indian people and their lands from abuse – but only until they became ‘civilized and assimilated.’

Enfranchise
–freedom from political subjugation or servitude; the power to act or speak or think without externally imposed restraints; a statutory right or privilege granted to a person or group by a government (the rights of citizenship and right to vote).

An Act to Encourage the Gradual Civilization of Indian Tribes in this Province, and to Amend the s Relating to Indians
, 1857
This Act applied equally to Upper and Lower Canada and is often referred to as the Gradual Civilization Act. The intent was to eventually remove all legal distinctions between Indians and non-Indians.

This statute was the first to introduce the concept of enfranchisement (the process by which Indian people lost their Indian status and became full British subjects).

The colonial government viewed enfranchisement as a privilege for Indian people; they could gain their freedom from the protected Indian status and gain the rights of full colonial citizenship, such as the right to vote.

It is at this point that the strategies of civilization and assimilation begin their legislative existence, with colonial authorities encouraging Indians to forgo their Indian status and be drawn into the larger colonial society as regular citizens (and, hence, become “civilized”).

Under the Act, only Indian men could seek enfranchisement. In order to do so, they had to be over the age of 21, able to read and write in either English or French, be reasonably well educated, free of debt, and of good moral character as determined by a commission of non-Aboriginal examiners. Once enfranchised, the person was entitled to receive up to 50 acres of land from the reserve on which they lived and a per capita share of treaty annuities and other band monies.

Enfranchisement was voluntary to a man; however, an enfranchised man’s wife and children automatically lost their Indian status when he enfranchised – regardless of whether or not they so desired.

Once enfranchised they were not longer able to go onto the reserve without being considered a trespasser. This was designed to cut all familial and cultural ties to their old communities.
[http://caid.ca/GraCivAct1857.pdf (this file is safe to open, though like in the previous Act, a pop-up may come up and ask if you want to open)]

An Act respecting Indians and

Indian Lands Act

, 1860

Passed by the Province of Canada it provided for the centralization of control over Aboriginal affairs in the Province of Canada – lasting until the BNA, 1867. It created the office of the Chief Superintendent of Indian Affairs and transferred all authority for Indians and their lands in the Province of Canada to this single official. The Chief Superintendent was given very broad discretionary powers over reserve Indians.

Please have a look at this Act, via this link http://caid.ca/IndLanAct1860.pdf (again this file is safe to open, though like in the previous Act, a pop-up may come up and ask if you want to open). You will see that it is bringing together points from each of the previous Acts; also identifying the amount of land that Indians can receive as reserves and the amount of monies they can also receive. This Act is the precursor to the Indian Act that was to follow in 1876.

Act for the Gradual Enfranchisement of Indians and the Better Management of Indian Affairs, 1869

This Act past by the new Canadian Federal government.
This Act is significant in that it was the first to introduce the notion of self-government for Indian people on reserves. However, by self-government, it meant bands were encourage to elect chiefs and band councils for the purpose of general administration on-reserves and move away from the traditional methods of hereditary leadership. Elected officials were elected to terms of three years and granted limited bylaw creating powers. It is important to note many Indian bands did not, or chose not to, engage in democratic practices at the time, so the Act granted the government the power to impose democratic institutions on them – regardless of what they desired. It is a bit ludicrous given that Indigenous people have been self-governing for thousands of years, using a wide variety of governance models – just not the same structured electoral system Europeans introduced with colonization.

Indian women were excluded from voting for band chiefs and councils (women in general were excluded from voting in Canada until the early 1900s).

The Act continued the prohibition of the sale of alcohol – on the paternalistic grounds of protecting Indian from themselves.

It instituted a compulsory enfranchisement provision by stating that status Indian women who married non-status men automatically lost their Indian status, and any children resulting from the marriage would also be denied Indian status. This provision continued with the strategy of assimilation. Think back to Set One notes where I identified this would remain in place until Bill C-31, 1985 [1985 -1869 = 116 years of lost status through intermarriage].
[see this link

(again this file is safe to open, though like in the previous Act, a pop-up may come up and ask if you want to open)

Voting rights in Canada for non-Indigenous women:
1884 – unmarried or widowed women
Provincially
1916 – Manitoba, Saskatchewan, and Alberta
1917 – BC and Ontario
1918 – Nova Scotia
1940 – Quebec
Federally
1918 – non-Indigenous women could vote in federal elections.

The Indian Act, 1876

The Government of Canada passed the Indian Act in 1876, with the purpose of consolidating all prior legislation regarding status Indian people.

The first Indian Act adopted an explicit vision of assimilation, in which status Indian people would be encouraged to relinquish their status, and leave behind their traditions and customs and become what the government saw as full members of Canadian society.

The federal government viewed Indians as children or wards of the state, [remember British North America Act, 1867 Sec 91(24) relegated them to that level] to which the government had a paternalistic duty to protect and civilize.

This underlying philosophy was clearly expressed by the Canadian Department of the Interior in its 1876 annual report:
Our Indian legislation generally rests on the principle, that the aborigines are to be kept in a condition of tutelage and treated as wards or children of the State. …the true interests of the aborigines and of the State alike require that every effort should be made to aid the Red man in lifting himself out of his condition of tutelage and dependence, and that is clearly our wisdom and our duty, through education and every other means, to prepare him for a higher civilization by encouraging him to assume the privileges and responsibilities of full citizenship. (within Report of the Royal Commission on Aboriginal Peoples, 1996)

It is important to note the change in Indian policy from the Royal Proclamation, 1763 to the Indian Act, 1876. Rather than a fiduciary duty to be upheld in the ‘honour of the Crown,’ recognizing Indian people as autonomous quasi-nations within the broader Canadian political system, to which the Crown had an obligation to protect from abuse and encroachment from European colonial society, Section 91(24) of BNA Act, and the Indian Act, 1876 enabled the Crown to weld it’s authority over status Indian people and interests, treating us as children.

Key Provisions of the Indian Act, 1876

Maintained the centralized administration of Indian affairs. The Superintendent General of Indian Affairs – a cabinet position – had broad discretionary powers over Indian people and lands; the power to impose democratic systems on Indian bands who had continued to follow their own traditional systems of governance rather than adopting a system of elected chiefs and band councils.

The Superintendent General could – and did – order reserves surveyed, divided into lots, and then order band members to obtain tickets for individual plots of land. This allowed the government to promote individualism; breaking up communal use of reserve lands, and encouraging private ownership of property.

Continued the practice of imposing a definition of Indian status (ensuring it was the Canadian government, not Indian people, who had the power to decide who was, or was not, Indian). It now emphasized male lineage in its definition of Indian status; “any woman,” whether status Indian or not, who was married to “any male person of Indian blood reputed to belong to a particular band.”

A status Indian was 1) any male of Indian blood reputed to belong to a particular band; 2) any child of such person; and 3) any woman who is, or who was, married to such a person.

Compulsory enfranchisement 1) occurred for a status Indian woman when she married non-status man; and 2) for an Indian who received a university degree, became a doctor, lawyer or clergyman.

The Indian Act (1876) included many what was considered protective feature, for example:
– no one other than an “Indian of the Band” could live on, or use, reserve lands without license from the Superintendent General
– no federal or provincial taxation on real estate or personal property on a reserve
– no liens under provincial law could be placed on Indian property
– no Indian property could be seized for debt.

Amendments to the Indian Act 1876-1950

Many amendments to the Indian Act were made in an effort to strengthen the philosophy of civilization and assimilation and increase federal powers. I have provided a few examples here; I bolded a couple of dates for amendments that severely limited band members from seeking justice over the federal government’s mishandling of lands promised through treaty (further discussion in next week’s notes):
· 1885: Prohibition of traditional Indian ceremonies, such as potlaches.
· 1894: Removal of band control over non-Aboriginals living on reserves. This power was transferred to the Superintendent General of Indian Affairs.
· 1895: banned the Thirst Dance (Sun Dance) ceremony.
· 1905: Power to remove Indian peoples from reserves near towns with a population of more than 8,000 people.
· 1910: prevented Indian bands from using trust funds to pay for legal counsel for land claims.
· 1911: Power to expropriate portions of reserves for roads, railways and other public works, as well as to move an entire reserve away from a municipality if it was deemed expedient.
· 1914: Prohibited to perform traditional dances in Indian “costume” in any public dance, show, exhibition, stampede or pageant.
· 1917: Soldier Settlement Act – Indian veteran could not apply to the Soldier Settlement Board; instead they were issued ‘location tickets’, which merely carved out an individual parcel of reserve land for them, further eroding the amount of reserve land held in common by the band.
· 1918: Power to lease out uncultivated reserve lands to non-Aboriginals if the new leaseholder would use it for farming or pasture.
· 1927: Illegal to use outside funds to pay legal counsel for land claims. This made it unlawful for Indian people to bring legal claim against the Federal government – without special license from the Superintendent General. Between 1895 through 1927, 1/3 of all lands reserved for Indians under the numbered treaties were removed from reserve status by the Federal government.
· 1930: Prohibition of pool hall owners from allowing entrance of an Aboriginal who “by inordinate frequenting of a pool room either on or off an Indian reserve misspends or wastes his time or means to the detriment of himself, his family or household.”
· 1939 – 1952: WWII and Korean Wars – over 3,000 status FN enlisted with Canadian Armed Forces, upon their return they were denied the same benefits and compensation as their non-FN peers, instead they were relegated back to their reserves to live under the Indian Act.
Between 1946 and 1948, a Special Joint Committee of the Senate and House of Commons examined the operation of the Indian Act and Indian administration. Witnesses were called, including government officials, select native groups, and interested parties. Three years of committee hearings produced significant policy and administrative recommendations. [use this link to view Report, to look through this document you must use the ‘page turning’ icons as there was no full-text online sources available] http://parl.canadiana.ca/view/oop.com_SOCHOC_2004_2_1/1?r=0&s=1

For example, the committee came up with its own Indian Act, and this became known as the “Committee’s Bill”. The committee proposed that Indian people receive the federal vote, and that an Indian claims commission be established to deal with long-standing grievances that were impeding Indian participation in Canadian society.

The committee felt the Minister had too many discretionary powers and that these should be reduced in a new act. The committee argued that Indian bands should be able to develop their own charters or constitutions for self-government – (and that is the term they used), and that the bands should be allowed to incorporate and hold title to reserve lands. Finally, it suggested that the long-standing policy goal of Indian assimilation be modified to one of supporting Indian integration.

From 1948 to 1950, government officials considered the Special Joint Committee’s proposals, and rejected most of them when they were presented to the House of Commons in June 1950; as did Indian people and their supporters who claimed they had not been formally consulted. A revised bill was reintroduced in the fall of 1950 and reviewed by select Indian leaders in a five-day session in Ottawa in the winter of 1951.

The Second World War left Canadian citizens shocked by the atrocities of the war. People were made more aware of the concept of human rights. Canadians recognized that Aboriginal people were among the most disadvantaged in the country; something Canadians found particularly troubling given the participation of First Nations soldiers in the war. This, along with Canada’s commitment to the United Nations’ Universal Declaration of Human Rights, also contributed to revising the Indian Act (1951).  The more oppressive sections of the Indian Act were amended or taken out. https://indigenousfoundations.arts.ubc.ca/the_indian_act/#amendments

The revised Indian Act (September 4, 1951) was not a radical departure from earlier versions. It essentially tidied up and removed conflicting sections; thus, in many ways, it was an exercise in legislative housekeeping.

There was no creation of a claims commission, there was no federal vote for status Indian people, nor was the notion of Indian band constitutions and incorporation included.

It removed many of the prohibitions on tradition practices and ceremonies; they were now allowed to enter pool halls and to gamble – although it was an offence for Indians to be in the possession of intoxicants or to be intoxicated; Indians were now allowed to appear off-reserve in ceremonial dress without permission of the Indian Agent; Indian women were now allowed to vote in band councils; discretionary powers of the Minister were reduced in number, as were the number of penalty clauses against Indians; Chiefs and band councils received more powers to act as municipal-style governments – in particular, greater freedom to spend band revenues as they saw fit including the ability to use funds for lawsuits to advance land claims (1958 before any bands had complete control over their funds).

The revised Act also saw the establishment of a central ‘Indian registry’ with entitlement continuing to be linked to band membership; and initiated a new legal definition of who was entitled to be an Indian by introducing the compulsory enfranchisement “double mother rule.” This stated that a person registered at birth would lose status and band membership at age 21, if his/her parents had married after the coming into effect of the legislation in September 1951, and his/her mother and paternal grandmother had acquired status only through marriage. [see ‘Removal of 1951 cut-off’ https://www.canada.ca/en/crown-indigenous-relations-northern-affairs/news/2019/08/removal-of-the-1951-cut-off.html that discusses the removal of this clause through Bill C-3, 2011 (discussed in Set One notes)]

The compulsory enfranchisement for status women who married non-status man remained, as it did for a status Indian who received a university degree or who became a doctor, lawyer or clergyman.

One of the biggest game changers of these revisions – as we look back from where we stand today was the application of provincial law whenever a provincial law dealt with a subject not covered under the Indian Act, such as child welfare. This one clause opened the door for heartbreak and trauma as it enabled/was the imitator, of the 60s Scoop. For the first time since confederation, the federal government enabled that provincial laws could be applied to Indians on reserve. Something that completely went against Sec 91(24) of the BNA Act, 1867.

Check out this link if you want to further examine ‘21 things’ that hindered the development of Indian people’s socio-political-economic health https://library.nic.bc.ca/21things/11

Indian Act – 1952 onward

The arrival of the John Diefenbaker’s Conservatives in 1957 initiated several major changes for Indian people.

Between 1959 and 1961, a Second Joint Committee of the Senate and the House of Commons reviewed Indian administration.

A series of recommendations were actively pursued by the government. In 1961, Section 112 was deleted from the Act ending compulsory enfranchisement for those who received a university degree or became a Minister/Priest.

In 1962, a bill to establish a claims commission was introduced in Parliament, but the measure died when the government was defeated in 1963. Similarly, the Diefenbaker cabinet was working on significant changes to the Indian Act that included band incorporation and allowing women to keep their status even if they married non-status. The incoming Liberal Party did not pursue them.

Despite these failures, Diefenbaker’s Conservative government introduced two significant legislative measures – in March 1960, Prime Minister John Diefenbaker pushed the voting rights legislation through Parliament. It came into effect July 1 that year.

When Lester B. Pearson’s Liberal Government came to power in 1963, Indian claims legislation was reintroduced in Parliament. The government also commissioned an in-depth study of Indian economic, educational, and political needs.

Anthropologist Harry B. Hawthorn was hired by the federal government to investigate the social, educational and economic conditions of Indian people.
The Hawthorn-Tremblay Report – presented a two-volume study to government in 1966-67, noteworthy for introducing the notion of Indian people as ‘citizens plus’, and calling upon the Department of Indian Affairs, (established as a stand-alone Department in 1966) to assume an advocacy role for Indian people within the federal bureaucracy. [Links to the Hawthorne Report, officially named A Survey of the Contemporary Indians of Canada, A Report on Economic, Political, Educational Needs and Policies in Two Volumes – Volume One

http://caid.ca/HawRep1a1966.pdf and Volume Two

]

The 91 Hawthorn proposals were under consideration when the government decided to launch a series of Indian consultation meetings across Canada to revise the Indian Act. The round of Indian consultations began in 1968 and continued until the spring of 1969. The consultation process revealed that Indian people wanted greater self-government; more funds for economic and social development; settlement of land claims; protection of treaty rights; and constitutional recognition of aboriginal rights.

The first Report proposed Indian people should not be forced to assimilate; supported the Indian Act but recommended changes; noted the per capita annual income for Indian peoples was less than average Canadian; schooling was far below national average – observing that school texts were not only inaccurate re Indian people, but also insulting; regarding self-government it noted that between 1951 and 1964 only a quarter of bands in Canada had passed any by-laws – the Governor-in-Council could veto any band decisions; and regarding money bylaws, fewer than 50 bands in Canada had been deemed ‘advanced enough to exercise this power’ and thus the fed gov still controlled the lives of FN living on reserve; and it stated that ‘in addition to the normal rights and duties of citizenship, Indians posses certain rights’ or should be seen as ‘citizens plus’. Overall, the report was well received by India people. The second Report proposed Indian government be seen as a 3rd level of government and inserted into the existing gov system.

In spite of recommendations forwarded from the people through the voice of the Hawthorne Commission, the federal government went in a completely different direction and presented its “Statement of the Government of Canada on Indian Policy”, 1969 – more commonly known as the White Paper.

The federal government described the White Paper as a ‘breath taking governmental recipe for equality”. This strategy paper proposed abolishing the Indian Act, and assimilating Indian people into Canadian society (rising administrative costs were at the heart of this initiative). Strong Indian and non-Indian criticism arose. [to see all of the points forwarded in the White Paper

The goal of the White Paper, instead of making Indian people ‘citizens plus’ as outlined by the Hawthorn reports, would discontinue their direct relationship with the federal government, which though limiting in many areas, had at least ensured their presence. The White Paper would remove that ‘special status,’ and the fear was it would make them invisible within the fabric of Canada. [Trudeau speaking to his White Paper (10:35)

]

The National Indian Brotherhood took a firm stance – the White Paper’s proposals were not acceptable – and submitted a counter proposal entitled “Citizens Plus” (Red Paper), penned by the Alberta Indian Association. http://caid.ca/RedPaper1970.pdf

Five major points lay at the heart of Citizens Plus as counter points of the White Paper:
1) Indian Status—the White Paper said ‘that the legislative and constitutional bases of discrimination should be removed.’ The Red Paper rejected this policy, saying that the recognition of Indian status is essential for justice.
2) The Unique Indian Culture and Contribution—White Paper said ‘that there should be positive recognition by everyone of the unique contribution of Indian culture to Canadian life.’ The Red Paper said, ‘nice-sounding words which are intended to mislead’.
3) Channels for Services—White Paper says “that services should come through the same channels and from the same government agencies”. The Red Paper said that the federal government is bound by the BNA Act to accept legislative responsibility for ‘Indians and Indian lands.’

4) Enriched Services—White Paper says “that those who are farthest behind should be helped the most.” The Red Paper stated that Indian people do not want different treatment for different tribes. By creating such a policy, the federal government is once again trying to divide us.

5) ful Obligations—White Paper says “that lawful obligations should be recognized.” The Red Paper countered with the statement that “if the government meant what it said we would be happy. It is obvious that the Government has a distorted picture of the treaties…it is willfully ignorant of the bargains that were made between the Indian peoples and the Queen’s commissioners.
The federal government was not prepared for the strength of this response from Indian people and their non-Indigenous allies (especially from the Conservative and NDP parties). This, and with an eye south of the border and the protest demonstrations by the American Indian Movement (AIM or Red Power, formed in 1968) forced Prime Minister Pierre Elliot Trudeau to concede that the government had been hasty and the White Paper was formally retracted on March 17, 1971.
[https://www.cbc.ca/archives/entry/our-native-land-american-indian-movement-shakes-up-canada

A side effect of the White Paper was the popularization of the term ‘Aboriginal Rights’ – originally referring only to land (Indian title), it came to include rights to self-determination and self-government. In 1982, Trudeau entrenched the term ‘Aboriginal rights’ into the Constitution, 1982 without definition, despite provincial premiers’ attempts to prevent it. [one of the points discussed in the First Ministers’ Conferences; seen in Dancing Around the Table, link provided in Set One’s notes]

The failure of the White Paper triggered a change of direction for many of the policies that followed. In part, these were based on the desire of Indian people to assume control over their own communities. United Indian voices pushed the federal government to recognize them distinct nations (First Nations) and recognize that they were entitled to political, social and economic …