Chapter: 1 Colonization and Assimilation of First Nations...
Transcript of Chapter: 1 Colonization and Assimilation of First Nations...
Chapter: 1
Colonization and Assimilation of First Nations Peoples under Colonial and Post-Colonial Governance Policies
In this chapter an attempt has been made to describe and analyse the process of
colonization of First Nations of Canada in the eighteenth and nineteenth centuries.
The historical background is given from the perspective of the imposition of the
federal governance structures over First Nations whose rights as independent
nations were extinguished, so that the colonizing immigrant settlers could establish
their claim over the land, they later named Canada. The period witnessed the
beginning of colonial usurpation of First Nations land, sovereign status and self
determining powers and it is also a study of Indigenous spirit over European
adversity against the Indigenous peoples.
The eighteenth century history begins with the intensifying of colonial rivalry over
the control of North America culminating in the victory of the British Crown. At
this time, Indigenous peoples Were sovereign entities evident from the Royal
proclamation of 1763 and later established their relationship with England through
the treaty system. 1 The chapter, progresses to the nineteenth century, when the
power of governance passed from the colonial government into the hands of the
Dominion government.
When the Indigenous peoples saw Europeans, considered by the latter as the
discovery of the "New World" and lands by Columbus, the "Old World"
Indigenous peoples had their own system of governance which was complex and
practised under various forms with only one essential commonality that all First
Nations maintained spiritual links to the land and their system of laws and
governance included bringing up children, caring for elderly and sick, gathering
The treaties were later undermined through the British judicial process of interpretation. For further details see Sharon H. Venne, 'Treaty and Constitution in Canada: A View From Treaty
· Six'. In Ward Churchill (ed.), Critical Issues in Native North America (Copenhagen: International Work Group for Indigenous Affairs Document (December1988/January 1989), p. 98. Hereinafter, Sharon H. Venne, 1988/89.
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food through hunting, fishing and trapping, in other words all activities were linked
with the land. 2 .For exampl~, a quasi-federal system called the Haudenosaunee
(Five Nations) Confederacy featured a matriarchal system of choosing chiefs, as
well as councils of chiefs meeting in super-tribal councils with legislative,
executive and judicial powers. On the West coast, tribes used the potlatch, a
ceremony involving ·songs, speeches, and lavish gift giving, which had
governmental implications, particularly between the major self-governing house
groups of the society. The potlatch affirmed important decisions. There were many
other simple and consensual forms of governance and Indigenous peoples
possessed power over their own lives.3 "Indian country had its own historical
dynamics, its own patterns of population movements, conquests, and political and
cultural change that had been going on for centuries.'"'
The "New World" established by the European colonizers was based on the policy
of colonialism with imposition of its military, economic, legislative,
administrative, and social control throughout the "Old World" of the Indigenous
peoples. In the fust two phases of colonialism, beginning with the policy of
mercantilism, the primary colonial interest was in the extraction of natural wealth
with assistance from the Indigenous peoples that later expanded to include the
establishment of colonial settlements through the treaty system. The second phase
became "acquisitive" in nature due to competition amcng the rival colonial
powers. Territory was taken to prevent it from being taken by the other European
powers. Intense commercial exploitation at the cost of environm~ntal degradation,
establishment of colonial settlements through geographical dislocation of the
Indigenous peoples, and "civilizing" missionary activities followed the process of
acquisition of First Nations lands and sovereignty.5 According to Daniel K.
4
s
Sharon H. Venne, 1988/1989, p. 96.
Christoph_~r Dunn, Canadian Political Debates: Opposing Views on Issues That Divide Canadians (Toronto: Oxford University Press, 1996), pp. 23-24. Hereinafter, Christopher Dunn, 1996. · ._
Daniel K. Richter, Facing East From Indian Country: A Native History of Early America (Cambridge, Massachusetts: Harvard University Press, 2001), p. 39. Hereinafter, Daniel K. Richter, 2001.
Andrew Armitage, Comparing the Policy pf Aboriginal Assimilation: Australia, Canada and New Zealand (Vancouver: University of British Columbia Press, 1995), p. 227. Hereinafter, Andrew Armitage, 1995.
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Richter, the Europeans powers brought with them, "economic, ecological and
epidemiological forces" which converted First Nations into the "New World" and
these changes were forced upon them. 6
Before the imposition of the British rule over Canada, Indigenous peoples were in
full control of their lives and had land occupancy rights on the basis of prior
occupation. Gradual attempts to abolish these rights were done in the name of
civilizing them and through the imposition of Western legal thought and ideology.
At the end of the mercantilist era when Indigenous peoples were no longer required
as military allies and with gradual decline of fur trade, British colonial masters
began to implement protectionist policies through various European-based notions
of colonial acquisitions and acts of "discovery", "conquest", and "settlement" in
order to protect their colonies in Canada from other rival European powers. 7 In
other words, predominance of commercial and evangelical interests during the
mercantilist era now gave way to the control ofterritory in the eighteenth century.
This period is crucial to understand the change in the colonial policies as with the
decline of the Anglo-French rivalry, French-Indian fur trade interests also declined
along with the gradual disappearance of buffaloes. 8 The end of the commercial
relationship also signalled the end of the hunting and gathering economy for First
Nations and the time was right for the British colonial masters to take over the
control of Indigenous lands. The whole process transformed Indigenous lands into,
"An Empire of Goods", as Indigenous peoples now performed roles of consumers
of manufactured goods and producers of raw materials. 9
With England having now emerged as the supreme colonial power, it began to
expand capitalistic agrarian economy through the establishment of British
6
7
9
Daniel K. Richter, 2001, p. 41.
Leonard Ian Rotman, Parallel Paths: Fiduciary Doctrine and the Crown-Native Relationship in Canada (Toronto: University of Toronto Press, 1996), p. 22. Hereinafter, Leonard Ian Rotman, 1996.
The early French settlements in the territory that was to later become Canada had very little permanent agrarian settlement, property boundaries were loose and fur trade required the cooperation of the Indigenous peoples.
P. J. Marshall (ed.), Native Peoples of North America and the Eighteenth-Century British Empire in The Eighteenth Century: Oxford History of the British Empire, Vol. II (New York: Oxford University Press, 1998) p. 348. Hereinafter, Oxford History of British Empire, 1998.
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settlements by dellberately removing Indigenous peoples from their ancestral and
spiritual ·lands. For this .purpose in 1670, the British government passed a
legislation that gave colonial governors power to control Indigenous peoples under
the pretension to protect them from the immigrant settlers and estate dealers. But
the real intention was to Christianize10 them and bring them under the control of
the British Crown so that large tracts of Indigenous lands could be opened up so
that there would no longer be any distinction between the Indigenous peoples and
the colonizing immigrant settlers. Moreover, the pattern of agriculturally based,
immigrant-driven settlements was not compatible with the Indigenous occupation
of the land and this process led to expropriation of lands from Indigenous
peoples. 11 The new 'Empire of Goods' was also now available for new colonizing
immigrant settlers. 12 But even at this juncture First Nations alliance was still vital
for Britain in its conflict with France and this reliance led to what historian Francis
Jennings termed "the deed game", creation of a paper trail of treaties by which
territorial claims could be traced in European international law. 13 But this
diplomatic, political and economic alliance was breaking up by 1730s and 1740s.
In 1755, Department of Indian Affairs was set up under a superintendent of Indian
Affairs. The department was responsible, "for political relations with Indian
people, protection from traders, boundary negotiations, and the enlistment of
Indian people during times of war". 14 During early stages of war with France
followed by the Royal Proclamation of 1763, which proclaimed the sovereign
claims of the Crown over Indigenous lands and also marked . the beginning of
10
II
12
13
14
46% of the Indigenous peoples are Catholics, 36% are Protestants and 17% have "no religious affiliations". Out of these, 18% are Anglican denomination, 10% of United Church and 8% evenly distributed among other Christian Churches in Canada. James Frideres, Aboriginal Peoples in Canada: Contemporary Conflicts, 51
h edition (Ontario: Prentice Hall, 1998), p. 137.
J. Rick Ponting and Roger Gibbins, Out of Irrelevance: A Socio-Political Introduction to Indian Affairs in Canada (Canada: Butterworth and Company Limited, 1980) pp. 3-4. One can also read The Oxford History of the British Empire, Vol. II, (New York: Oxford University Press, 1998), p. 348. See also Jean Guillemin, 'The Politics of National Integration: A Comparison ofU.S. and Canadian Indian Administrations,' Social Problems, No. 24, 3, pp. 319 -322.
The Oxford History of the British Empire, 1998, Vol. II, p. 348.
Francis Jennings, The Invasion of America: Indians, Colonialism, and the Century of Conquest (NC: Chapel Hill, 1975), pp. 246-67. Taken from, The Oxford History of the British Empire, 1998, Vol. II, p. 349.
Andrew Armitage, 1995, p. 73.
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subjugation of Indigenous peoples as the lands outside the colonial boundaries was
"reserved" as "hunting grounds" for them. 15 This proclamation established a
hierarchical relationship over Indigenous peoples now brought under British
superintendent. The Royal Proclamation thus became a "prerogative" document, as
it established the legal base for the beginning of implementation of the British
Indian policy. 16
Historical Background to the Establishment of Colonial Rule
The Royal Proclamation of 1763 was originally conceived to meet pressing
military contingencies of the day as it followed the Seven Years War and was
signed in the same year as the Peace of Paris, whereby France ceded nearly all of
its title and claim to territories within the northern part of the American Continent.
In this war, First Nations assisted France due to mutual interest of the fur trade and
in order to protect their hunting grounds from the British pattern of agricultural
settlements. But the defeat of France threatened British North American
commercial interests by the Thirteen American Colonies' expansionist desires, the
defeated French in Quebec, and deteriorating British-Indigenous rehttions. 17 Thus,
the Royal Proclamation was Britain's response to these potential threats to its
recently acquired North American Empire18 and intended to signal to the
Indigenous peoples that the British would protect their interests in return for their
military support.
The Royal Proclamation provision assisted Britain to keep a check on the activities
of the Americans, French and Indigenous peoples and prevented formation of any
alliance between them against it. The proclamation laid out the basic tenets of
IS
16
17
18
It was drafted on the basis of advice from the colony concerning measures necessary to 'conciliate ... the Indian Nations, by every act of strict justice ... by affording them Protection from any Encroachment on the lands they have reserved to themselves or their hunting grounds.' Jack M. Sosin, Whitehall and the Wilderness (Lincoln: University of Nebraska Press 1 961 ), p. 51, quoting Lord Egremont, Secretary of State, correspondence with General Amherst, Commander in chief, Northern District. Taken from Andrew Armitage, 1995, p. 73.
Andrew Armitage, 1995, p. 74.
Indigenous groups in order to gain political, military and commercial benefit often used to side either with Britain or France. With the French defeat, Indigenous groups and Britain were now in direct confrontation with each other.
Leonard Jan Rotman, 1996, p. 27.
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Crown-Indigenous· relations in Canada including subsequent Indian ·legislation in
Canada. 19 The Royal Proclamation argues Harper:
" ... Laid the foundations of four great principles which became embedded in Canada's treaty system: that the Indians possess occupancy rights to all land which they have not formally surrendered; that no land claimed by Indians may be granted to whites until formally surrendered; that the government assumes the responsibility of evicting all persons unlawfully occupying Indian lands; and that surrenders of Indian lands may be made only to the Crown, and for a consideration. "20
Thus the Royal Proclamation not only recognized Indigenous rights to the land but
also established the government as a middleman in the settlement process; the
transference of land from First Nations to the incoming flood of colonizing
immigrant settlers could only come about thrcugh :the intervention of the
government. In this period the "Indian policy" was preoccupied by the need to
maintain Indigenous peoples as military allies. The Indian Department formed in
1755 was an arm ofthe colonial military authority with the Superintendent-General
reporting directly to the Commander-in-chief of the British forces. The Department
remained in military hands until 1799 when civil authority was established. In the
evolution of these policies, significant shifts were to occur between_ how they were
applied by the British Colonial Office and imperial military authority and later,
when responsibility for Indian policy was devolved to local Indian Affairs
bureaucrats and then to colonial governments.21
Until the colonies assumed almost total responsibility for the Indigenous peoples,
imperial policies were differentiated across British North America according to a
regional approach. In the Atlantic colonies, the Colonial Office attempted to
19
20
21
Ibid. p. 29.
Allen G. Harper, 'Canada's Indian Administration: The Treaty System', America Indigenia, 1947,7, 2, p. 134.
Many authors writing in the "internal colony" tradition do not make the distinction between Imperial and subsequent ColoniaVCanadian Indian policy. They appear to have been particularly influenced by L.F.S. Upton's, 'Origins of Canadian Indian Policy.' Journal of Canadian Studies 8, no. 3 (1973). A careful reading of Upton does not support his contentions that imperial Indian policy was totally self-serving, and provided the model, which was, "later generalized across the Dominion after 1867 and has guided the official conduct of Indian affairs down to the present day," p. 51. For a better study one can read, J. L. Tobias, 'Protection, Civilization, Assimilation: An Outline History of Canada's Indian Policy', Western Journal of Anthropology 8, No. 3 (1976).
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"insulate" the MicMacs on reserve until they were ready to assimilate. In Rupert's
Land it · was thought that the fur trade was already bringing about a useful
"amalgamation" of Indians and Whites - especially through miscegenation as
evidenced by the Metis - so the Hudson's Bay Company was left to its own
devices. On Vancouver Island and the adjoining mainland colony of New
Caledonia, the Colonial Office relied on locally administered settlements and
amalgamation in other areas. It was in the Central Canada that, besides
miscegenation, the greatest emphasis was placed on education in the broadest
civilizing sense to bring about amalgamation. Notwithstanding all these
differences, however, there was a belief in the Colonial Office that the best
interests of all the Indigenous peoples could only be assured through continuation
of the imperial connection. 22
The above analysis clearly shows that colonial authority was completely
fragmented with more control exercised at the Center of what was to later become
Ontario but in the interior frontiers Indigenous politics still reigned supreme. In the
eighteenth century, "there would never be one British policy toward Native
Americans, but rather a host of British people pursuing a variety of interests within
parameters set by historical experience, imperial structures, and finally, basic
characteristics of Indian political culture"?3 With each First Nations virtually a
republic by itself, to form an alliance meant involvement in Indigenous public,
participatory and consensual rituals and customs through exchange of goods or
wampum belts. Imperial rivalry forced diplomacy rather than war with First
Nations that assisted in economic exploitation of the Indigenous peoples and
agricultural expansion of the colonizing immigrant settlers.
The Royal Proclamation of 1763
The Royal Proclamation is a symbol of betrayal as well as hope for the Indigenous
peoples, because of the promises made by the British colonial power to respect
22
23
D.T. McNab, 'Herman Melville and Colonial Indian Policy in the Mid-Nineteenth Century.' In I. Gerry and A.S. Lussier (eds.), As Long as the Sun Shines and Water Flows. A Reader in Canadian Native Studies. Nakoda Institute Occasional Paper no. 1 (Vancouver: University of British Columbia Press, 1978).
The Oxford History ofthe British Empire, 1998, p. 349.
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Indigenous rights to Indigenous title and status as self-governing nations. But this
policy changed to assimilation in the name of civilising and protecting the
Indigenous peoples. 24
The Royal Proclamation recognized the rights of First Nations to Indigenous title:
"And whereas it is just and reasonable, and essential to our interests, the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of our Dominions and Territories as not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds. "25
The Royal Proclamation· also stipulated that the Crown's prior approval was
required for all acquisitions oflndigenous peoples lands:·
"And We do hereby strictly forbid, on Pain of our Displeasure, all our loving Subjects from making any Purchases or settlements whatever, or taking Possession of any of the Lands above reserved, without our special leave and Licence for that purpose first obtained. "
The Royal Proclamation also laid out a process of how Indigenous _lands should be
acquired for other purposes:
" .. .If at any Time any of the said Indians should be inclined to dispose of such Lands, the same shall be purchased only for Us in our Name, at some public meeting or Assembly of the said Indians, to be held for that Purpose by the Governor or Commander in Chief of our Colony ... "
The latter provision forms the basis of subsequent treaty making between First
Nations and representatives of the Crown. This process, together with other
language in the Royal Proclamation such as references to Indian "Nations",
provides one of the buttresses for contemporary Indigenous peoples demands that
Indigenous title should be negotiated on a "nation- to-nation" basis.
24
2S
J. Rick Ponting and Roger Gibbins, 1980, p. 27.
The 1763 Royal Proclamation is reproduced in Aboriginal Law, Cases, Materials and Commentary (Saskatoon, Saskatchewan: Purich Publishing, 1999), pp. 14- 16.
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The Royal Proclamation established a colonial governance system for the colonies
seized from France. It confirmed that relationships with First Nations and matters ·
of ·Indigenous lands were international matters, until international agreements
creating the basis for domestic relationships could be reached. The proclamation
also pronounced the Indigenous peoples to be under "Our (the Kings')
Sovereignty, Protection and Dominion".26 Till the 1760s', the British settlers
needed the support and assistance of Indigenous peoples in order to acquaint
themselves with alien geographical surroundings, for their military support against
other rival European powers and when Indigenous population began to decline due
..--to disease and wars it was the right time for the colonizing immigrant settlers to
assume the mantle of colonialists. "The Proclamation served the dual function of
denoting the Crown's assertion of suzerainty over Canada and affirming the
inherent sovereignty of the Aboriginal peoples". 27In this way Indigenous sovereign
and land rights became well entrenched by 1763. But at the same time Britain
"developed and implemented Indian policies to govern its relations with the Native
peoples and allow for the continued infusion of British settlers". 28 In other words,
"the Crown engaged in a precarious balance of internally promoting its colonialist
ideas while externally recognizing and respecting the independence and
sovereignty of the Native peoples". 29 The Proclamation resulted in a series ofland
based treaties that gave recognition to mutual assistance and friendship and
Indigenous title to land under traditional use and occupancy and it provided the
Crown with sovereign powers and the right to extinguish the "Indian title".30
The Royal Proclamation of 1763 has never been repealed. Many observers regard
it as a kind of "charter" of Indigenous rights because it implied the continuance of
the sovereignty that First Nations enjoyed before the coming of the Europeans.
Bruce Clark has argued "by not molesting or disturbing these political entities
26
2i
28
29
30
Frank Cassidy and Robert L. Bish, Indian Government: It's Meaning in Practice (Canada, Oolichan Books, 1989), p. 4. Hereinafter, Frank Cassidy and Robert L. Bish, 1989.
Leonard Ian Rotman, 1996, p. 38.
Ibid. p. 42.
Ibid. p. 47.
Augie Fleras and Jean Leonard Elliott, The 'Nations Within': Aboriginal State Relations in Canada, the U.S., and New Zealand (Toronto: Oxford University Press, 1992), p. 40. Hereinafter, Augie Fleras and Jean Leonard Elliott, 1992.
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[Indian Natiops], one necessarily lea~es them m a self-governing condition".31
According to Christopher Dunn, the legal protection of Indigenous lands meant
providing legal protection to Indigenous sovereignty and since the Royal
Proclamation has never been repealed, therefore, Indigenous peoples still have
inherent right to their lands. Keeping this in mind, in the present times, the
Canadian Parliament and the Courts cannot justify the non-existence of Indigenous
rights by balancing them against the civil liberties of other Canadians. 32 He goes
on to argue that the Royal Proclamation was an exercise of the King's "prerogative
power", which established the first constitutional framework for the newly
conquered British territories in North America and set the pattern for the "imperial
approach" t0 Indigenous affairs. This method granted the Indigenous peoples right
to continue to occupy their ancestral lands and prevented non-Indigenous
colonizing immigrant settlers from taking over these Indigenous lands that had not
been legally ceded to the imperial authorities. This clearly points to the important
fact that British North America was never treated as an "empty land" over which
the colonizing immigrant settlers had right to take over from the Indigenous
peoples and impose their own jurisdiction.33 Others disagree. According to John
Tobias, the Royal Proclamation is a "duality of recognition" and the beginning of
"assimilationist policy" as it gave the Crown the unilateral right to exercise its
sovereign powers over Indigenous lands. 34
The Colonial Policies
The birth of United States of America (1776) had twofold consequences. Firstly, it
brought in more colonizing immigrant settlers into Canada and Britain began to
sign treaties with First Nations for land surrenders. Between 1763 and 1800, 24
treaties were signed with different First Nations covering the fertile agricultural
lands along the north shore of Lake Ontario. The objective was to clear the land of
31
32
33
34
Bruce Clark, Native Liberty, Crown Sovereignty: The Existing Aboriginal Right of SelfGovernment in Canada (Montreal & Kingston: MeGill-Queen's University Press, 1990), p. 9.
Christopher Dunn, 1996, pp. 32- 33.
Ibid. p. 31.
Frank Cassidy and Robert L. Bish, 1989, p. 4.
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the Indigenous title acknowledged in the Royal Proclamation.35 .This period saw
· the change in Indian- treaties from the earlier being compacts of peace_ and
friendship to terms of land surrender. Secondly, USA's desire for westward
expansion alarmed the British authorities who now required men and resources to
protect the western regions of Canada.
In 1799, Department of Indian Affairs was placed under civil authorities who were
recent immigrants to Canada and, therefore, had no sympathy or desire to assist
Indigenous peoples. They were purely guided by the policy of self-appeasement.
By 1812, British immigration to Canada changed the demographic pattern to their
advantage and now . there was a more urgent desire to take control of the
Indigenous land and peoples. "Reciprocity and accommodation were replaced by a
system of internal colonialism and conquest-oriented acculturation".36 The
conclusion of the War of 1812 had ended the prospects for continued military
conflict between British and American forces and the stage was set for the
emergence of new policy directions. The British Empire now only needed
Indigenous lands but not the Indigenous peoples.37 Once the political benefits of
recognizing the Indigenous peoples as independent nations waned in the nineteenth
century, Britain who treated them as equals and described them as ·~nations" began
to describe and view them ~ "tribes" or "bands". 38
The Europeans myth of the Indigenous peoples being the "Noble Savage" began to
be used in this period with inherent political implications. The \Vestem colonialists
believed that Indigenous peoples were "noble" as man is naturally good but they
are "savage", as this nature emerges due to faults that exist in the Indigenous way
of organizing society in an uncivilized manner. As Rousseau had said: "God makes
all things good; man meddles with them and makes them evil". The attempt was to
show that under new western colonizing immigrant settlers governance systems
3S
36
37
38
The Indian Canadian (Ottawa: Indian and Northern Affairs, Minister of Supply and Services, 1986), p. 53.
Augie Fleras and Jean Leonard Elliott, 1992, p. 40.
J. Rick Ponting and Roger Gibbins, Out of Irrelevance: A Socio-Political Introduction to Indian Affairs in Canada (Canada: Butterworth and Company Limited, 1980), p. 4. Hereinafter, J. Rick Ponting and Roger Gibbins, 1980.
Leonard Ian Rotman, 1996, p. 51.
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savage .qualities of Indigenous peoples would eventually disappear leading to
radical re-organization of their society and personal outlook. This romantic myth
prevailed till the French Revolution in 1789. After the French Revolution, the myth
disappeared followed by increased missionary activities which painted, "the
evangelistic picture of an ignoble and degraded brute" followed by a conception of
the savage as "representative of the childhood of man, interesting because he
possessed the unrealized accomplishments of the child".39
In this way, in the emergence of Canada, both religion and science has played a
significant role in differentiating the colonizing immigrant settlers and the
Indigenous peoples. In the Western social and philosophical world, the idea of
super-ordination, fitness to govern, indolence and weakness in character has
persisted with remarkable tenacity.40
"The politics of culture in l:md-dispossession societies are guided by the twin historical facts - land loss and cultural tlevolving. Where Indigenous peoples have seen their land fall into the hands of settlers and invaders they have also had to withstand and recover from the insistent message that theirs was an inferior language and a primitive culture. In search for recognition the Indigenous cultural renaissance movements share sentiments and aims with other minorities, but the land basis of the politics of Indigenous peoples mark them off from, say urban minorities as the descendants of in-migrants. "41
Two ideas accepted by the dominant colonizing immigrant settlers' society have
led to poverty, cultural degradation, racial conflicts and widespread social
impoverishment in the Indigenous communities. One is the · theory of social
evolution - the principle that those people who possess the most "advanced"
technology and the "capacity of writing" are in the vanguard of the process of
"evolution", and thus have the right, inherent to their culture, and the
responsibility, to bring about the "development" of the "less advanced."42 The
other is the myth of the disappearance of the Indigenous peoples. Such annihilation
39
40
41
42
Michael Banton, Racial Theories, 2od edition (USA: Cambridge University Press, 1998), pp. 23-24.
Steven Fenton, Ethnicity, Racism, and Class (London: MacMillan, 1999), p. 86.
Andrew Armitage, 1985, p. 210.
Georges E. Sioui, For An Amerindian Auto History: An Essay on the Foundations of a Social Ethic (Montreal & Kingston: MeGill-Queen's University Press, 1992), p. xx
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was regarded as the logical" and normal outcome of the shock that occurs between a
highly "advanced'.' civilization and very "backward" one.43
This period also marked the beginning of pseudo-scientific concepts of racial
superiority versus inferiority, such as Social Darwinism. With the declining fur
trade, the migratory lifestyle followed by many First Nations no longer served a
useful economic purpose. So there was an effort to convert them into agriculturist
and Christians ("Bible and plough"). Missionaries and colonial officials also made
the case that they could better carry out their responsibilities for Indigenous
tutelage and wardship if First Nations were centralized in permanent settlements.
(The Jesuits hacl set up the first reserve settlements in New France during the
seventeenth century, but while the intent of these missionaries was to convert the
inhabitants to Christianity and agriculture, other aspects of native culture, such as
their language, were left alone and the state was not involved in these efforts). In
1830's a number of reserve were established in Upper Canada for First Nations to
be taught farming and to receive religious instruction and western education. This
was the beginning of reserve system as a "social laboratory" for civilizing
Indigenous peoples and preparing them to cope with the colonizing immigrant
settler society, soon to become a cornerstone of Colonial and then Canadian policy
towards the Indigenous peoples. 44
Thus began the policy of "assimilation" along with attempts to civilize and protect
them until they were completely assimilated with the western .culture and norm
also known as process of elimination of the "Indian problem". Colonial
administrators first transformed these paternalistic principles, and then the new
Dominion government formulated it into a fundamentally racist agenda for
43
44
Ibid. p. XX.
R. J. Surtees, 'The Development of an Indian Reserve Policy in Canada' Ontario History 61, no. 2 (1969), pp. 87 - 98. Upton suggests, that the initiative for this concerted, social engineering effort came from the Indian Department of the Central Canada's to preserve their own bureaucratic survival. Apparently, faced with imminent loss of employment because of repeated demands for cost-cutting, they convinced Colonial Office officials of the merits of a humane mission to civilize Indians by settling them on farm·s and making them educated and Christian. L F. S. Upton, 'Origins of Canadian Indian Policy,' Journal of Canadian Studies, 8, No.3 (1973).
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persecuting Indigenous peoples; The 19th century also marked the period of land
surrender treaties.
By the beginning of 19th century, use of First Nations as military allies had waned,
considerably due to disease, war and colonial expansion of Britain that had
decimated the Indigenous population and adversely affected their traditional
economic systems forcing them to be dependent on European manufactured
products.45 This period also marked the beginning of land conflict due to the fact
that decline in the Indigenous population opened up vast tracts of land for the
colonizing immigrant settlers to sell, hold and manage according to their western
conventiQns and laws. 46 At the same time, the fur trade centred on Montreal ended
and consequently the Indigenous peoples importance as commercial partners also
declined. The focus of imperial policy now shifted to facilitating agricultural
settlement - the population of colonizing immigrant settlers in Upper Canada
increased tenfold between the end of the War of 1812 and in the census of 1851.47
This is the period when Indigenous peoples were becoming irrelevant to the new
colonizing immigrant settlers and conflicts were emerging between hunting
gathering and the new agrarian economy. Irrelevance of Indigenous peoples
manifested into attitude of hostility over their social lifestyle. The period marked
the birth of stereotype images of Indigenous peoples and the latent colonizing
immigrant settlers' European superiority comes out into the open and becomes
active part of all the colonial policies and post-colonial policies. .
The Royal Proclamation of 1763 underwent a change in emphasis from the
protection of Indigenous peoples to their subjugation and Indigenous rights to land
was no longer protected or recognized by the Crown. The Crown's policy of
assimilation was to be achieved concurrently by means of the Indigenous peoples
4S
46
47
Leonard Ian Rotman, 1996, p. 37.
Andrew Armitage, 1995, p. 224.
By the second quarter of the 19th century, buffalo, whales, fur trade based on sea otter and fur seal was almost over due to over hunting in order to meet the growing demands of both the colonizing immigrant settlers and the European markets. At the same time, the discovery of gold in the Fraser River and then in Yukon created more problems for the Indigenous peoples.
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adaptive ·civilization from traditionalism to modernity and their temporary
protection thiough reserve system until they were ready to fend for themselves.48
Reserve System
Around the middle of the nineteenth century two important developments took
place. Firstly, there was the complete withdrawal of the Colonial Office
responsibility for the Indian policy. Secondly, there was a planned policy in
Central Canada of forcing the segregation of First Nations into reserves so they
could be systematically civilized in preparation for eventual assimilation in to the
co1onizing immigrant settler society. Centralizing Indigenous peoples in reserves
also had the incidental benefit of freeing their lands up for settlement. Reserves
were and still are a kind of disciplinary institutions, which gave power to the
federal government to control Indigenous peoples time, space, personality, and
values.
Reserves also forced the colonizing immigrant society to recognize Indigenous
peoples as human beings while at the ~arne time take over the control of their
lands, " ... it was the method whereby land could be stolen legally and not
blatantly",49 through the treaty system. The Indigenous peoples spiritual and not
the capitalistic usage of land made the settler set up an elaborate system of
administrative structures through the Indian Act and reserve system which was
meant to control their public and private lives on order to bring them at par with
the rest of the colonizing immigrant society.
Reserve system was introduced in 1830 along with the appointment of Indian
Agents who were responsible for protecting, guiding and advising Indian bands.
The reason for this shift in the policy was due to adoption of the notion of
48
49
J. L. Tobias, 'Protection, Civilization, Assimilation: An Outline History of Canada's Indian Policy'. The Western Canadian Journal of Anthropology 8, no. 3. (1976), pp. 13-20. Hereinafter, J. L. Tobias, 1976.
Vine Deloria Jr., Custer Died For Your Sins: An Indian Manifesto (New York: The MacMillan Company, 1971), p. 7.
73
"trusteeship"50 whereby Canada as a civilized· nation assigned itself a "fiduciary
responsibility" to oversee the affairs of its Indigenous "children" (normally called
"savage") which included· the right to exercise of "trust," control over the
Indigenous lands until they reached "maturity" and "competence". In other words,
the terms of treaties (or nation-to-nation relationships) were disregarded when they
came into conflict with the colonial imperatives. The notions of trusteeship helped
the colonizing immigrant settlers to unilaterally claim sovereign rights to new
territories that later found "legitimacy" in the legal system of the modem Canadian
State. 51
Reserve system evolved to incorpnrate four mutually reinforcing components: the ~
segregation of Indigenous peoples in settlements located on specially set-aside
reserve lands; special legislation to control most aspects of Indigenous life;
establishment of a large Indian Affairs bureaucracy with intrusive powers of
tutelage over their Indian "wards"; and state-sponsored Church proselytization and
teaching. 52
But reserve system was fatally flawed for two reasons; firstly, the goal of
assimilation was perversely intended to be achieved by segregating Indigenous
peoples, spatially, socially, economically and politically from the very colonizing
immigrant European society into which they -were supposed to be assimilated.
Secondly, when reserve system failed to achieve its desired results, the state
subjugated Indigenous peoples even more in an attempt to force. their assimilation
and in doing so alienated them further away from the colonizing hnmigrant settler
society.
50
51
52
"Trusteeship" was defmed during the 16th century by Spanish theologian Bartholome' de las Casas, and was later developed in Canada as legitimisation of the process of colonization. For further details read Sharon H. Venne, 198811989, p. 98.
Sharon H. Venne, Under the notion of trusteeship, the Canadian courts in St. Catherine Milling Case, (1889) 14 App. Cas. 46 (JCPC, aff'g.) (1887) 13 SCR 577 (SCC) and in Attorney General of Ontario v. The Bear Island foundation, et al, (1982) 13 ACWS (2d) 522, no. 1136, cases adopted the legal fiction of European ownership of Indigenous lands based on the notion of terra nullius. This meant that the colonial courts derogated Indian treaties, which had been entered into on the basis of international law by both parties, to domestic agreements of a nonlegal nature, subject to unilateral change by Canadian statute. Sharon H. Venne, 198811989, pp. 98-100.
Sharon H. Venne, 1988/1989, p. 98.
74
There was always disagreemi:mt with ·regard to the fact whether reserves should be
near the colonial settlements or away from-them. In 1856, the Royal Commission,
which studied the issue, concluded that forced isolation of the Indigenous peoples
was not helping in assimilating them but the Commission was optimistic about
their eventual civilization and assimilation. 53
Similar experiments were carried out with Indigenous education following the
Bagot Commission inquiry in 1842, education policy was re-orientated to
residential schools. New residential schools were established on a wide basis,
following experiments with earlier such institutions, which combined industrial
and agricultural training for Indigenous children together with religious
indoctrination. The new ·education system was enthusiastically supported by
missionaries who ran the schools and by Indian Department officials who were
convinced of their effectiveness in assuring assimilation. 54 According to Sharon H.
Venne, "it is difficult to perceive this as anything other than an extremely cynical
governmental plan to utilize Indian peoples' children as instruments with which to
undermine and permanently destabilize Indigenous societies."55 The imposed
social engineering by Indian Affairs bureaucrats and missionaries coincided with
the increasing hand over of responsibility for the Indigenous peoples to colonial
governments.
The union of Upper and Lower Canada in 1840 had no impact on Indian Affairs
for at this time there was no Canadian legislative framework for Indian Affairs,
which remained an Imperial concern in 1840 and largely stayed so until 1860. In
1850 the first Canadian acts were passed to protect Indian land from trespassers.
All Indian land and property came under the control of a Commissioner of Indian
land who could exercise and defend all rights of the landowner, including the right
to lease land and collect rents. A year later, additional legislation indirectly
excluded from Indian status, whites living among Indians and non-Indian males
married to Indian women. Thus important Canadian precedents began to be set,
53
54
55
J. L. Tobias, 1976, pp. 13- 20.
J. R. Miller, Skyscrapers Hide the Heavens: A History of Indian - White Relations in Canada, ZW edition (Toronto: University ofToronto Press 1989), p. 108. Hereinafter, J. R. Miller, 1989.
Sharon H. Venne, 1988/1989, p. 102.
75
such as this one distinguishing between "status" and "non-status" Indians that
would eventually be incorporated in the Indian Act of 1876.56
When minerals were discovered along the shores of Lake Superior and Lake Huron
in 1850s, more new land appropriation treaties were negotiated with Ojibway
Indians known as Robinson-Superior and Robinson-Huron treaties and more new
Indigenous reserves were established. Now began the period of Indigenous peoples
land appropriation for extraction of natural resources that continues till today in
• Canada in blatant disregard of all environmental concerns.
In 1856 two special commissioners wer~ appointed by the colonial government to
report on objectives that were to serve as mainstays of public policy in the years to
come: "... the best means of securing the future progress and civilization of the
Indian Tribes in Canada" and " ... the best mode of so managing the Indian
property as to secure its full benefit to the Indians, v.ithout impeding the settlement
of the country. This was the beginning of the primary policy components of
ci'<ilization and protection; the latter constrained by the recognition that colonizing
immigrant settlements would proceed regardless. 57
In ·1857, the United Canada's Assembly proposed that Indigenous peoples be
introduced to Western liberal virtues of private property ownership passed the
Gradual Civilization Act. The Act for the Gradual Civilization of the Indian Tribes
in the Canada's reads as follows:
"\Vhereas it is desirable to encourage the progress of Civilization among the Indian Tribes in this Province, the gradual removal of all legal distinctions between them and her Majesty's other subjects, and to facilitate the acquisition of property and of the rights accompanying it, by such individual Members of the said Tribes as shall be found to desire such encouragement and to have deserved it ... "58
The Act offered monetary, property and enfranchisement inducements to the
Indigenous peoples who would choose assimilation and cut their ties with tribal
S6
57
S8
J. Rick Ponting and Roger Gibbins, 1980, p. 5. See also Andrew Armitage, 1995, pp. 77- 78.
J. Rick Ponting and Roger Gibbins, 1980, p. 6.
J. R. Miller, Kahn-Tineta et all, Historical Development of the Indian Act (Ottawa: Department of Indian and Northern Affairs, 1978), p. 26.
76
societies - inducements that were to remain important components of Indian policy
for the next one hundred years 59 and continue to be even in the 21st century.
While some land was to be retained for the exclusive use of the Indigenous
peoples, the main intention of legislation was to establish "orderly" procedures by
which Indigenous - occupied land could be opened up for the colonizing immigrant
settler society. The Land and Property Act passed by the colonial government in
1860 dealt primarily with the procedures by which Indigenous lands could be
surrendered to the Crown. 60
An attempt to privatize Indigenous lands was also meant to reject Indigenous
authority by offering adult Indigenous males twenty freehold acres away from their
reserves, if they elected to become enfranchised as citizens of the colony and were
deemed sufficiently civilized. Attempts to privatize reserve lands struck directly at
the Indigenous peoples communal tradition and they refused to cooperate. The
Enfranchisement Act of 1869 was passed under the influence of assimilationist
policy with an attempt to impose individual property right in First Nations similar
to one that exists in non-Indigenous societies and thereby, create a government
based distinction between the Status and non-Status Indigenous peoples which was
specified in an earlier 1853 Indian Protection Act which was now amended to the
Enfranchisement Act.61 The colonial government blamed the failure of their
enfranchisement offer on traditional tribal leaders who \Yere increasingly seen as a
major impediment to assimilation. By the 1860's all the th,ree principles of
civilization, protection and assimilation originally introduced under imperial
guidance were now remodelled by the Dominion government in to the federally
controlled and supervised extremely racist reserve system. The goal of assimilation
was no longer just an end to be promoted but was to be enforced against the wishes
of Indigenous leaders, if necessary. The assimilation of Indigenous peoples was
also to be achieved by the contradictory means of their socio-spatial segregation on
reserves, so that they could more easily be civilized and protected. "Federal Indian
59
60
61
J. Rick Ponting and Roger Gibbins, 1980, p. 6.
Ibid. p. 6.
J. Rick Ponting and Roger Gibbins, 1980, p. 8.
77
policy... shaped from the beginning at least as much toward deculturation as
acculturation". 62
In 1860, the imperial government formally transferred responsibilities for the
Indigenous peoples to its colonial governments. And under the terms of the British
Nonh American Act 1867, overall control over reserves lands was ceded to the
federal government of the new Canadian Dominion. The national policies which
would be put in place by the federal government for dealing with the Indigenous
peoples drew largely from Central Canadian experience and their first target were
. ..traditional leaders who were viewed as uncooperative and deliberately opposing
government policy.
Reserves were and even now are those lands that are :set aside for the use and
benefit of a band. Currently there are 407 Indian reserves in Canada. Any
registered status Indian who is also a band member has the right to live on a
reserve and use these lands as long as the band has not adopted a residency by-law,
which limits or regulates the right to live on the reserve. 63 Reserve system made a
significant impact in changing the personality and values ofthe Indigenous peoples
and segregated them further from their ancestral lands, spiritual linkages and
Indigenous cultures. They now had government sponsored institutional identity
that divided them into ranks, class, grades and status and non-status Indigenous
peoples. The attempt was to impose colonizing immigrant settlers' European ethos,
culture and civilization.
-Beyond the limits of_reserves, there was no identity or rights for the Indigenous
peoples. Reserves created artificial geographical distance between the Indigenous
peoples and non-Indigenous colonizing immigrant society and the Indian Act
further separated original inhabitants of the land, that is, Indigenous peoples from
the rest of the Canadians. In this way, legislation was increasingly used in the
62
63
Michael Dorris, 'Twentieth Century Indians: The Return of the Natives.' In Raymond L. Hall, (ed.), Ethnic Autonomy: Comparative Dynamics, the Americas, Europe, and the Developing World (New York: Pergamcn Press, 1979), pp. 66-84, 75, 76. Taken from Peter d'Errico, 'Native Americans in America: A Theoretical and Historical Overview'. A Journal ofNative American Studies, Wicazo Sa Review (1999), p. 19.
http://www .inac.gc .ca/faqslindex.htm I
78
nineteenth century as a means of controlling indigenous peoples through the
control of their land and resources.64 These new Indian policies were designed to
protect the Indigenous peoples from the evils apparently inherent in contact with
the colonizing immigrant society and land dealers, and to encourage the settlement
of Indigenous peoples in villages wherever the instruments of civilisation and
Christianity- schools, churches had been effectively applied. The eventual target
was the assimilation of Indigenous peoples into the colonizing immigrant settler
society.65
The effects of colonialism have resulted in serious social costs to Indigenous
peoples. It alm~st lost them the use of their languages and cultures. It took away
from them the right to control and use· their lands and resources by requiring that
surrenders only be made to the Crown. It attempted to abolish their political
identity to determine their membership and method of government. The cumulative
effect of British Indigenous policies was to weaken the Indigenous peoples and
their nations. 66
In 1860, the responsibility oflndigenous peoples was transferred from the Imperial
government to the Province of Canada. Then in 1867, the British North America
Act also known as the Constitution Act (section 91, subsection 24) gave the new
federal government ·the .authority to legislate on matters pertaining to "Indians and
Lands Reserved for Indians." Based on this authority, Parliament passed a series of
"Indian Acts". The Secretary of State for the Provinces became the
Superintendent-General of Indian Affairs.67 It is worth noting that although the
power to legislate for the administration of Indigenous lands was exclusively
federal, this was not so for Indigenous peoples themselves. 68
Section 91 (24) of the Constitution Act, 1867 conferred on the Parliament of
Canada the exclusive legislative jurisdiction to make laws with respect to "Indians,
64 Leonard Ian Rotman, 1996, p. 53. 65 J. Rick Ponting and Roger Gibbins, 1980, p. 5. 66 Leonard Ian Rotman, 1996, p. 63. 67 J. Rick Ponting and Roger Gibbins, 1980, p. 6. 68 Ibid. p. 7.
79
and lands reserved for the Indians."69 The Indian Act of 1868/0 as amended in the··
follo:wing year/1 provided:
"Section 15. For the purpose of determining what persons are entitled to hold, use or enjoy the lands and other immovable property belonging to or appropriated to the use of the various tribes, bands or bodies of Indians in Canada, the following persons and classes of persons, and none other, shall be considered as Indians belonging to the tribe, band or body of Indians interested in any such lands or immovable property:
Firstly, all persons of Indian blood, reputed to belong to the particular tribe, band or body of Indians interested in such lands or immovable property, and their clescendarits;
Secondly, all persons residing among such Indians, whose parents were or are, or either of them was or is, descended on either side from Indians or an Indian reputed to belong to the particular tribe, band or body of Indians interested in such lands or immovable property, and the descendants of all such persons; and
Thirdly, all women lawfully married to any of the persons included in the several classes hereinbefore designated; the children issue of such marriages, and their descendants. Provided always that any Indian woman marrying any other than an Indian, shall cease to be an Indian within the meaning of this Act, nor shall the children, issues· of such marriage be considered as Indians within the meaning of this Act; Provided also, that any Indian woman marrying an Indian of any other tribe, band or body shall cease to be a member of the tribe, band or body to which she formerly belonged, and become a member of the tribe, band or body of which her husband is a member, and the children, issues of this marriage, shall belong to their father's tribe only."
It meant that Indian status was to be obtained only through the male and not female
line. This continued till 1985 despite the enactment of Bill of Rights in 1960. 72The
Bill of Rights was meant to render inoperative any law of Canada that
discriminated against anyone on the grounds of race, national origin, colour,
religion or sex. But it was finally done only in 1985 after the inclusion of Charter
of Rights and Freedoms.
69
70
71
72
Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.), (R.S.C. 1985, App. II, no. 5). Taken from Thomas Isaac, Aboriginal law: Cases, Materials, and Commentary, 2nd edition (Saskatchewan: Purich Publishing, 1999), p. 216.
S.C. 1868, 31 Viet. C. 42.
S.C. 1869, 32 & 33 Viet. C. 6.
S.C. 1960, c. 44.
80
Continuing the ~similationist role of guardianship, the Enfranchisement Act of
1869 laid out a process of enfranchisement as a lure to assimilation and sought to
establish some measw-e of individual Indian property rights that would be
analogues to those prevalent in the non-Indian society. That Act also expanded
upon the status-nonstatus distinctions set out in the amended Indian Protection Act
of 1850.73
The Indian Act 1876
In 1763, Indigenous communities were "nations or tribes" and by 1867 they had
been placed unrler the jurisdiction of the federal government through the enactment
of the Indian Act.74The imposition ofthe Indian Act in 1876 meant that all aspects
of Indigenous existence came under governmental authority. The Indian Act did
everything that the Royal Proclamation had said not to do so. It imposed the
authority of the colonial pcwer.
Various scattered legislative provisions pertaining to First Nations were
consolidated into one comprehensive legislation, which is the direct forerunner of
today's Indian Act. Its codification of the reserve system was so complete that it
even circumscribed Iridian ethnicity largely by reserve boundaries. Thus, an Indian
was defined under the Act as "any male of Indian blood" (together with any
legally-married wife and child of such a person) reputed to belong to a particular
band, which in turn was defined as a body of Indians whose funds are held in trust
by the federal government or, most commonly, have reserves (or their equivalent)
held in trust by the Crown.
The Indian Act of 1876 brought all aspects of First Nations existence under the
federal government authority, which was clear in prescribing how reserve lands
could be managed, protected from encroachment and damage, subdivided, sued for
different purposes, and disposed or leased and how land revenues should be
invested. In other words, Indigenous landholdings became by legislation, devices
73
74
J. Rick Ponting & Roger Gibbins, 1980, p. 8.
Douglas Saunders, 'Self-Determination and Indigenous Peoples.' In Christian Tomuschat (ed.), Modern Law ofSelf-Determination (Boston: Martinus NijhoffPublishers, 1993), p. 55.
81
for assimilation and under "fiduciary" relationship the Minister of Indian Affairs
has been given the right to determine what is in the "best interest"· of the
Indigenous community.75 The Act also defined who could live on reserves, what
social and cultural practices they could carry on there, how they should be
educated and what form their political institutions should take. It introduced
"location tickets" as another enfranchisement device. Reserves were to be surveyed
into lots and then allocated by the Band Council to individual members who would
receive a form of title for their lots through location tickets and after a three-year
probationary period, be awarded citizenship (but this was largely thwarted by
Indigenous leaders who feared erosion of their Bands' communal lands and
imposition of municipal-type property taxation). Ir.. all, the 1876 Indian Act carried
forward the objective of complete the Indigenous peoples assimilation into
Canadian society, but also the contradictory logic of attempting to achieve this by
complete segregation ofthe Indigenous peoples from Canadian society.76
The Indian Act is a very colonial, control-oriented piece of legislation, which
places much discretionary power in the hands of the Minister of Indian Affairs, or
officials to whom he delegates it. 77 Sociologist Erving Hoffman has called the
Indian Act as a ·~otal institution" which can be described as· a situation of
asymmetrical power relations in which a bureaucratically organized custodial staff,
operating at a greater social distance from its clientele, exercises extensive
arbitrary control over whole blocks of people across a wide range of their daily
human needs. He says that total institutions, "are the forcing hquses for changing
persons". From being an empowering instrument, the paternalistic Indian Act has
75
76
77
Sharon H. Venne, 1988/1989, p. 102.
Chamberlin describes these contradictions in the 1876 Act as follows: "From its initial promulgation, there have been those who questioned the sanity of a piece of legislation which actively discouraged, and indeed in some areas positively prohibited, the assimilation of the Indians in to the social and economic life of the non-native population, while at the same time being the centrepiece of abroad policy of moving the Indians towards full citizenship and full participatio.n in Canadian life. By existing to regulate and systematize the relationship between the Indians and the majority society, the Act codifies and often exaggerates the distinction
-_which is its function eventually to eliminate". J. E. Chamberlin, The Harrowing of Eden (Toronto: Fitzhenry and Whiteside, I 975), p. 90.
J. R. Ponting and R.. Gibbins, 1980, p. 8- 14.
82
constrained Indians at every turn: ?8 Miller has· described it as "coerced
assimilation". 79
In amendments to the Indian Act in 1880, the Department of Indian Affairs (DIA)
was formally established with broad powers over Indians on (and even off)
reserves. In this way, all four components of the "reserve system" were put firmly
in place:
I) The segregation and containment of Indians on reserve lands with unique
federal Crown tenure of the special use and enjoyment of individual Bands.
2) Ethnically defined legislation of the Indian Act establishing federal regulatory
domain over most aspects of Indian political, economic and socio-cultural life.
3) Sweeping and intrusive powers oflndian wardship and tutelage entrusted to the
special purpose federal bureaucracy of the Department of Indian Affairs.
4) State endorsement of the Church's central role not only of Indian religious
instruction, but also for education and training. 80
The Indian Act of 1876 consolidated rather than departed from pre-existing
legislation in the provinces and territories that dealt with the Indigenous peoples.
Its importance comes from the fact that it pulled together existing legislation and
policy directives and cast them in. a document that was to dominate Indian Affairs
for the next century. The Indian Act touches virtually every aspect of Indian lives.
Section 141 of the Indian Act stated, "Every person who. . . rai.ses money for the
prosecution of a claim... shall be guilty of an offence and liable . . . to
imprisonment for a term not exceeding for two months". There were broadly two
aims of Canadian policy, firstly to expropriate the "assets" of Indigenous peoples
and secondly, to make Indigenous societies extinct.81
78 Erving Goffman, 1956, p. 6- 12.Taken from J. Rick Ponting (ed.) First Nations in Canada: Perspectives on Opportunity, Empowerment, and Self-Determination (Canada: McGraw-Hill Ryerson Limited, 1996), p. 433.
79 J. R. Miller, 1989, pp. 83 - 115. 80 J. R. Ponting and R. Gibbins, 1980. 81 Sharon H. Venne, 198811989, p. 103.
83
_,
It is the Indian Act and not the treaties that define the relationship ·between
Indigenous peoples and the broader Canadian society. Yet, it is the treaties arid not
the Act that protect land, hunting, fishing and trapping rights, to the extent that this
is done at all. The treaties and the Act are two sides of the same coin - while the
former provide a limited form of protection, the latter provides a comprehensive
mechanism of social control.82
The Indian Act fragmented the Indigenous population in Canada into legally and
legislatively distinct blocs experiencing quite different rights, restrictions and
obligations. But while the Indian Act only applies to Indians as defined by the Act,
the responsibilities and legislative prerogatives of the federal government are not
so limited. Therefore, while Parliament has the power to legislate for all
Indigenous peoples, under the Indian Act Parliament chooses to make laws only
for some.83
Band System
A Band is a group of Indigenous peoples for whose common use and benefit, lands
have been set apart and money is held by the Crown.84 It is a body of Indians
declared by the Governor-in-Council to be a band for the purpose of the Indian
Act. 85 The 1869 Indian Enfranchisement Act included provisions for replacing
traditional tribal governments with the British style municipal model. The
legislation was primarily directed to more "civilised" Bands in Central Canada but
quickly set the precedent for all Indian policy. The Act provided for externally
controlled procedures of democratic elections for chiefs and councillors who could,
however, be subsequently dismissed by Indian administrators if found wanting.
Powers could be delegated to these elected leaders for passing bylaws within their
respective reserves, but on specifically designated matters and subject to
ministerial veto, limitations which still largely stand today. Besides attempting to
82
83
J. Rick Ponting and Roger Gibbins, 1980, pp. 8-9.
Ibid. p. 9.
84 Currently there are 608 Bands in Canada and among Indian Bands; there are variations with respect to wealth, land, population, size, and proximity to non-native communities, culture,
"language, goals and needs. Indian Land Registry, Sept. 1997. 85 http://www .inac.gc.ca/fags/index.html
84
substitute troublesome traditional leaders with political institutions more amenable
to outside manipulation, imposition of the mimicipal model had the more general
assimilative purpose of replacing Indigenous traditions of collective governance
with liberal, individualistic practice. 86
Treaty Making
Treaty making was the main mechanism used for opening up Indigenous lands
across much of Canada except for in the western provinces of British Columbia.
Treaty making process was related to the Royal Proclamation requirement that
Indigenous title could not be removed without a proper treaty process undertaken
by the concerned authorities. So there were Robinson treaties of 1850 for regions
around Lake Huron and Superior; in 1871, the Canadian authorities began a half
century of treaty making with the Indigenous communities on Rupert's lands. Then
there are eleven "Numbered Treaties" 3igned between 1871 and 1921 which
opened up a vast area of Indigenous lands in three Prairie provinces- the Northwest
part of British Columbia, the Southeast comer of the Yukon, the Mackenzie Valley
in the Northwest Territories, and that part of Ontario which drains into Hudson
Bay. These lands were given for settlement purpose and to Canadian Pacific
Railway Company. This time, Indigenous peoples were completely defenceless
when their lands were appropriated by all possible illegal means.87
Treaty making was neither a mechanism nor a settlement process based on
agreements. According to the Royal Commission on Aboriginal Peoples (RCAP),
'in entering into treaties with Indian nations in the past, the Crown recognized the
86 According to Paul Tennant, "The insistence on imposing an elective form of government on Indians has been the most consistent, though least evident element in federal Indian policy since Confederation ... The Indiana philosophy was and is collective or corporate: the individual is seen as attaining his place and meaning within the traditions of the community and through performance of communal obligations ... The structures of band government were copied from the municipal model. A chief and a council, equivalent to a mayor and alderman, were to be elected by adult suffrage. Each adult was to have the right to seek elective office. Political equality, elections, and access to public office are central tenets of individualistic philosophies." P. Tennant, 'Aboriginal Rights and the Penner Report on Indian SelfGovernment' in M. Boldt and J. A. Long Eds. with Leroy Little Bear, 1985. See also Sharon H. Venne, 1988/1989) p. 101.
The Canadian Indian (Ottawa: Indian and Northern Affairs, Minister of Supply and Services, 1986), pp. 58- 59.
85
nationhood of its treaty partners." The most vocal . opponent of this line of
argument is Tom Flanagan who believes that treaties can only be established
between two sovereign states with fixed territorial boundaries and sovereign
powers. While in a world, 'populated by hunter- collectors the chiefs do not have
real authority over their tribes. Tribal societies are constantly changing due to
fission and fusion between families and clans as they exit, merge or form new
entities. Any agreement between tribes is only a personal pledge and not a
treaty. ' 88 It is for this reason, all these were merely agreements and not treaties in
the international sense. He infact, gives example of the Sioui case of 1990 where
the Court considered the treaty with Indians 'as an agreement sui generis which is
neither created nor terminated according to the rules of international law.'
Moreover, before 1982, the federal government had the power to change the
provisions of the such agreements which through 1982 treaty rights are now
"recognized and affirmed" in the Canadian constitution. 89
Tom Flanagan fails to understand that every time treaties were formed between the
two, it was related to certain political and economic measures. Political when the
colonizing immigrants wanted to expand agrarian settlements into the Western
regions without getting entangled into costly wars with First Nations and economic
for land under Indigenous control were not only most fertile but rich with natural
resources. At the same time, Indigenous peoples agreed to form treaties as they had
a different understanding of land based on the notion of sharing. Keeping these
factors in mind, RCAP that, "the unique nature of the historical treaties requires
special rules to give effect to the treaty nations understanding of the treaties. Such
an approach to the content of the treaties would require, as a first step, the rejection
of the idea that the written text is the exclusive record of the treaty." The
Commission also states that, "the treaty nations maintain that they did not agree to
extinguish their rights to their traditional lands and territories but agreed instead to
share them in some equitable fashion with newcomers." On the other hand,
88
89
Tom Flanagan, First Nations: Second thoughts? (Montreal and Kingston: MeGill-Queen's University Press, 2000), pp. 134-135. Hereinafter, Tom Flanagan, 2000.
Ibid. p. 135.
86
according to Tom Flanagan, "the term sharing has become the mantra of treaty
revisionism. "90
Augie Fleras and Jean Leonard Elliott consider the period of the Royal
Proclamation of 1763 as the only time when the colonizing immigrant society
acknowledged Indigenousness. This changed to the beginning of colonial and post
colonial assimilationist policies that were based on the thinking of "no more
Indians."91 Menno Boldt and J. Anthony Long characterized the period from 1867
onwards as the period of neo-colonialism, which was based on treaty system, and
expropriation of the Indigenous peoples land and established colonial and neo
colonial governance and control mP,chanism over them.92 J. Rick Panting considers
the same period as the beginning of paternalism and protectionism with a singular
aim of assimilating Indigenous peoples through the process of civilizing and
converting them into Christianity. The basic reason behind the enumeration act
was to equate Indigenous peoples with ir.unigrant settlers and this process
continued even in the 201h century.93
Andrew Armitage divides colonial period into four phases. In the first phase, the
primary aim being mercantilist which included extraction of wealth and
exploitation of natural resources with the assistance of First Nations and
establishment of immigrant settlers enclaves. The second phase was acquisitive as
Indigenous lands were taken over from the Indigenous peoples due to increasing
colonial rivalries between the European powers. The third phase witnessed real
commercial exploitation of Indigenous lands and resources along with
establishment more European settlements and increasing but deliberate missionary
zeal. After 1867, the final post-colonial phase saw the emergence of the
integration, which ushered the era of "internal colonialism". Under this significant
phase:
90
91
92
93
Ibid. p. 153.
Augies Fleras and Jean Leonard Elliott, 1999.
Menno Boldt, J. Anthony Long in Association with Leroy Little Bear (ed.), Quest For Justice: Aboriginal Peoples and Aboriginal Rights (Toronto: University of Toronto Press, 1985).
J. Rick Ponting, First Nations· in Canada: Perspectives on Opportunity, Empowerment and Self-Determination (Toronto: University ofToronto Press, 1997).
87
a) Gradual attempts to erode Indigenous land rights began to take place.
b) The Indigenous peoples were put into reserves thereby extinguishing their
. Indigenous identity.
c) Imposition of Western culture and the political system.
d) And all these factors combined together to make Indigenous peoples
"ethnic minorities" in their own land. 94 This resulted in the systematic
attempt at the destruction oflndigenous nationalism.95
Mid 18th and 19th centuries deprived First Nations of their land, independent self
governing political powers and rights. It brought about social and cultural
disruption of Indigenous community systems and traditions, end of their traditional
economy and usurpation of their community based sovereign powers. All federal
policies had a singular aim of eliminating both Indigenousness and Indigenous
peoples history by converting them through the process of assimilation into
colonizing immigrant settler society's little experimental toys.
This phase witnessed the process of assimilating the "Old World" of First Nations
into the "New World" of colonizing immigrant settlers through the policies of
extinction, protection, paternalism and then assimilation. These· policies were
implemented using various colonial methods of colonization like the right of
discovery which gave the colonizing immigrant settlers right of unilateral assertion
. of sovereign powers; theory of conquest gave them the right to impose the history
of the co_lonizing victors and establishment of reserves prpvided them the "
opportunity to impos~- western legal and governance structures through attempted
destruction of First Nations, Indian Act was meant to destroy Indigenous
governance systems and conversion to Christianity and residential school system
was meant to culturally uproot the Indigenous peoples in total violation of their
human rights. All these factors attempted in the homogenization of Indigenous
peoples, usurpation of their lands arid imposition of private property laws for
commercial and agrarian exploitation of Indigenous lands. Land loss meant loss of
Indigenousness, which incorporated within itself Indigenous peoples sovereign
94 Andrew Armitage, 1995, pp. 227 - 230. 9 s Leonard Ian Rotman, I 996, p. 51.
88
rights of original occupancy and this was compensated through the establishment
of reserve system. Cultural loss meant that Indigenous· peoples were no longer
unique and that they no longer · had right of self-determination, which was
compensated through the policy of assimilation under the Indian Act. In this way,
both reserve system and assimilation resolved the problem of Indigenousness
termed as the "Indian problem" and Canada was now open for all types of
immigrant settlers who now only required adhering to norms of the colonizing
immigrant settlers without entering into any treaty process. Indigenous land was no
longer Turtle Island, as it was now Canada under the control of colonizing
immigrant settlers.
89