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.

59

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.

60

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.

61

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.

62

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.

63

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).

64

"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.

65

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.

66

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.

67

[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.

68

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.

69

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

70

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).

71

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.

72

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