2) ‘Indian’ Title

[previous page: 1) Racism as a Colonial Context]

In 1867, Section 91 (24) of the Constitution Act for the Dominion of Canada provided that the new government would have legislative jurisdiction over “Indians and lands reserved for the Indians.” At the time, in that document, the term ‘Indian’ was “synonymous with the term ‘Aborigines.’” Thus, in Canada, for the purpose of the Act, ‘Halfbreed’/ Métis people “were considered Indians.”[1]

In 1870, the Dominion government conceded the existence of a ‘Halfbreed’/ Métis “Indian Title” to lands when it passed Section 31 of the Manitoba Act.[2] In 1879 and 1883, the government again recognized a ‘Halfbreed’/ Métis “Indian title,” in passing the Dominion Lands Act(s). “Indian title” was a right that had to be “extinguished,” if government actions were to accord with the country’s constitutional and common laws regulating the relationship between Aboriginal peoples and the Crown.[3]

Paradoxically (but by no means accidentally), with these legislative enactments, ‘Halfbreed’/ Métis people were “recognized as ‘Indians’ … but as a result … their Indian title [eventually] was extinguished.”[4] In John A. Macdonald’s opinion, the wording of the Manitoba Act, was a necessary formality, but was not entirely accurate, because, in 1870, “the half-breeds did not allow themselves to be Indians.”[5] At best, his judgement was simplistic: the understandings of individuals connected to the Red River Settlement and the surrounding District of Assiniboia by 1870 were in fact more complicated than he acknowledged. In Assiniboia, opinions on who was or was not ‘Indian’ hinged on considerations that could vary, depending on the circumstances out of which such a question might arise.[6] Certainly, at the time of ratifying the Manitoba Act, the Legislative Assembly of Assiniboia (whose mixed heritage members proudly referred to themselves as “Halfbreed” when speaking English and “Métis” when speaking French),[7] made clear its position that persons of combined Aboriginal and non-North American descent claimed simultaneously “the rights and liberties of civilized people” and “claims derived from their Indian blood.”[8]

The Manitoba Act set out the position of ‘Halfbreed’/ Métis children as somewhat different from that of their parents. The Act determined that:

“such of the children as had Indian blood in their veins should receive grants of land … for a reserve. It was to be a reservation for minors, with Indian blood — but not for adults, for the latter are allowed every liberty of self-government and all the rights of white people. They have land already, or, if they have none, it is their own fault. Having, then, the rights and liberties of white people, adults, even with Indian blood, were allowed no special privileges. But with the children it was different. Those of age have the right to take up unoccupied lands wherever they like, and all that they now possess is theirs—paid or unpaid.”[9]

Thus, according to the Dominion government, ‘Halfbreed’/ Métis children of Red River were not yet as ‘white’ as their parents, but soon would be, by the distribution of 1,400,000 acres of land grants among them.[10]

The children, however, were not immediately transformed by virtue of the promised land grant to a ‘white’ status similar to that of their parents. Instead, there were extended delays.[11] There were also numerous legislative changes made to the Manitoba Act, in the form of Orders in Council passed by the Dominion government, which progressively insinuated differences of entitlement among ‘Halfbreed’/ Métis families.[12]

Some people — mainly those who were farmers or lived for the greatest part of the year on a Red River Settlement property — had their possession of land recognized. Other people did not have their possession of land recognized — mainly those who lived off the land while working as hunters, fishers, and wage labourers (and including young adults who had yet to establish an independent habitation for themselves). Nor were children accorded title to land that had been promised — ‘scrip’ was substituted instead.[13].

[next page: 3) Scrip process]

[1] Mark Stevenson, “Section 91 (24) and Canada’s Legislative Jurisdiction with Respect to the Métis,”  Indigenous Law Journal 1 (Spring 2002), 237, 238, 246, 250.

[2] Ibid, 242.  Paul L.A.H. Chartrand, “Confronting the ‘Mixed-Blood Majic’: Towards a definition of ‘Metis’ for the purposes of section 35 of the Constitution Act 1982,” paper prepared for the Canadian/Indigenous Studies Association (CINSA) conference in Saskatoon, Saskatchewan, Canada, 2 June 2001 (2001), 23, notes, “the Manitoba Act 1870. Section 32 recognized the preemption rights of all persons, whether Metis or not, to individual lands, while section 31 recognized the Indian title of the Metis.”

[3] See Joseph Eliot Magnet, “Metis Land Rights in Canada,” section  2.1, Constitutional Law of Canada, University of Ottawa,  http://www.uottawa.ca/constitutional-law/metis.html#N_18 (accessed 8 February 2012). See also Stevenson, “Section 91 (24) and Canada’s Legislative Jurisdiction with Respect to the Métis,” 242, who cites Manitoba Act, S.C. 1870, c. 3; and Dominion Lands Acts, 1879 (U.K.), 42 Vict., c. 31; 1883 (U.K.), 46 Vict., c. 17.

[4] Stevenson, “Section 91 (24) and Canada’s Legislative Jurisdiction with Respect to the Métis,” 253. Paul Chartrand, “An Absolutely Uncritical Look at What has been Written about the Metis,” banquet speech, ‘1885 and After’ Conference, Saskatoon, 3 May 1985, Gabriel Dumont Institute of Native Studies and Applied Research. Virtual Museum of Métis History and Culture, http://www.metismuseum.ca/resource.php/06483 (accessed 2 February 2012), 6, notes “That recognition continued in government legislation and policy into the twentieth century.”

[5] John A. Macdonald quoted in Stevenson, “Section 91 (24) and Canada’s Legislative Jurisdiction with Respect to the Métis,” 254. Macdonald’s opinion was reiterated by Justice MacInnis in 2007. See Justice MacInnes quoted in  “Factum of the Intervener, The Attorney General of Alberta, Pursuant to Rule 42 of the Rules of the Supreme Court of Canada,” File No. 33880, In the Supreme Court of Canada (On Appeal from the Manitoba Court of Appeal), Between: Manitoba Métis Federation Inc., Yvon Dumont, Billy Jo De La Ronde, Roy Chartrand, Ron Erickson, Claire Riddle, Jack Fleming, Jack McPherson, Don Roulette, Edgar Bruce Jr. Fred Lundmark, Miles Allaire, Celia Klassen, Alma Belhemeur, Stan Guiboche, Jeanne Perrault, Marie Banks Ducharme and Earl Henderson, Appellants – and – Attorney General of Canada and Attorney General of Manitoba, Respondents – and – Attorney General of Alberta, Attorney General of Saskatchewan, Métis National Council, Métis Nation of Alberta, Métis Nation of Ontario, Treaty One First Nations, Assembly of First Nations, Interveners, Part III, Historical Context, page 4, point 14, http://www.metisnation.org/media/188842/mmf%20case%20-%20ag%20of%20alberta%20factum.pdf (accessed 11 February 2012). See also N.J. Ritchot, quoted in Norma J. Hall, ed., transcript, “Third Session, Day 2,” Legislative Assembly of Assiniboia, https://hallnjean2.wordpress.com/the-legislative-assembly-of-assiniboia/third-session-day-2/ (accessed 8 February 2012), who informed the Legislative Assembly of Assiniboia that in negotiating the Manitoba Act he had been “told by the Ministry that … the only ground on which … land could be given was for the extinguishment of the Indian title.”

[6] See Jill McConkey, “Law and Society in Red River,” M.A. thesis (Winnipeg: University of Manitoba, 2009), 53,  54 and n. 126,  55, 70, who indicates that under Hudson’s Bay Company oversight, and particularly in regulations proposed by the unpopular Recorder[/Judge] Adam Thom, being designated ‘Indian’ meant legal disbarment from accesses to liquor. In 1839 an ‘Indian’ was defined as “anyone generally recognized as such.” In 1845, Thom revised that definition so that “any reputed Indian or any member of an Indian nation, shall be held to be a real Indian to the utter exclusion of any evidence of parentage or descent.” Nevertheless, the offence of supplying liquor to Indians did not “affect any householder for possessing [liquor], as before, in the society of the Indian members of his own family.” Nor were those ‘Indians’ prosecuted, whose “dress and lifestyle” accorded with the norms of Red River settlers who were householders (those who wore “the halfbreed style trousers and shirt” and were “baptized and settled, and engaged in labour common among Metis [sic] in Red River”). Yet, by 1870, the Legislative Assembly of Assiniboia was devising liquor laws that would disallow the manufacture and sale of liquor on “any Indian reserve … not merely on the present Indian reserve [which included St. Peter’s Parish], but on any land which might be set apart as an Indian reserve.” See “Session 2, Day 8,” this site; see also, “Session 2, Day 9,” this site, and the call to appoint a Commissioner of Indian Affairs.

[7] See for example, Hon. James McKay, quoted in “Session 2, Day 2,” this site. As Riel (on behalf of the Red River settlers), had made clear to Commissioner from Canada, Donald A. Smith, they did not consider themselves to be ‘Half men’ and would not accept “half rights.” See Louis Riel, quoted in “Mass Meetings,” New Nation (21 January 1870), 3.

[8] Ritchot quoted in Hall, transcript, “Session 3, Day 2,” this site.

[9] Ibid. Ritchot added, “The Half-breed title, on the score of Indian blood, is not quite certain. But, in order to make a final and satisfactory arrangement, it was deemed best to regard it as certain, and to extinguish the right of the minority as Indians; and for that reason 1,400,000 acres were set aside by the Canadian Government for the Half-breed children of the country, to extinguish their admitted right as Half-breeds. This reservation does not in the least conflict with the 91st section of the general Act, where it is provided that certain tracts of land are to be reserved for, and owned by, Indians.”

Earlier, at the Convention of Forty/La Grande Convention, George Flett, representative for St. James’s Parish,  observed, “For my part, I am a Half-breed, but far be it from me to press any land claim I might have, as against a poor Indian of the country (hear, hear). Let the Indian claims be what they may, they will not detract from our just claims. We have taken the position, and ask the rights of civilized men. As to the poor Indian, let him by all means have all he can get. He needs it; and if our assistance will aid him in getting it, let us cheerfully give it (cheers). See “7th Day,” this site.

[10] Nor were the parents regarded as ‘poor.’ See James Ross, quoted in  “9th Day,” Convention of Forty/La Grand Convention, this site, who states “I cannot regard our natives and half-breeds as poor in the sense alluded to. I think our population is extremely well off, and will compare favorably with the rural population of any foreign country (cheers). I am proud of this and thankful for it. For poor people we must go to those foreign countries. I do not think that our people will ever be classed among that miserable class of paupers who have to be clothed and fed from day to day, and nurtured like children. We are well off—hardly a poor person within our whole limits. Almost every man has a house and land, horses and cattle. Thanks to our industry and intelligence, we have a settlement, composed of men not in the rank of paupers (cheers).”

[11] H. Douglas Kemp, “Land Grants Under the Manitoba Act,” MHS Transactions ser. 3, no. 9 (1952 – 1953 Season), http://www.mhs.mb.ca/docs/transactions/3/landgrants.shtml (accessed 8 February 2012).

[12] See Brad Milne, “The Historiography of Métis Land Dispersal, 1870 – 1890,” Manitoba History 30 (Autumn 1995), MHS, http://www.mhs.mb.ca/docs/mb_history/30/metislanddispersal.shtml (accessed 6 February 2012). See also Kemp, “Land Grants Under the Manitoba Act,” http://www.mhs.mb.ca/docs/transactions/3/landgrants.shtml (accessed 8 February 2012). The change was due to an Order in Council in 1871. It altered the land grant to children, their share of the total reduced in order to include “every half-breed resident in Manitoba” in their grant. It also called for an accurate census. Nothing was done, because surveys of lands, from which grants might be made (after it had been determined which lands were already owned), had not been completed. In the meantime, incoming settlers were allowed by the government to take up homestead entries — on unsurveyed, but already claimed land.

In January 1872, another Order in Council renewed the call for a census of people eligible for the ‘Half-breed’ grant, but it was ignored. Instead, an additional Order in Council in April 1872, recognized the previous census as valid and called for the Lieutenant Governor to begin selecting land to be reserved or distribution to Métis/ ‘Halfbreeds’ and to settle disputes that had arisen in consequence of newly arrived homesteaders. The Lieutenant Governor was not ready to begin distributing land until 1873. In April of that year a new Order in Council reverted to the position that “the children of half-breed heads of families alone” were entitled to share in the 1,400,000 acres. Although the process of distribution was begun in November 1873, the election of a new government in Ottawa brought the installation of a new Minister of the Interior, David Laird, who “ordered the procedure to stop.” By this point, by way of provincial legislation, ‘white’ Selkirk Settler heads of households, “or their children” were to be awarded grants while ‘Halfbreed’/ Métis heads of households had been denied such grants.

In 1874, the federal government removed the necessity of awarding land by legislating the scrip process into existence. “The legislation provided for a grant of 160 acres of land or of scrip for 160 dollars to the half-breed heads of families, fathers, mothers, or both as the case might be. By the Act, also, a grant of scrip for 160 dollars was made to all original white settlers, whether sponsored by Lord Selkirk or otherwise, who came to the Red River Settlement between the years 1813 and 1835, both inclusive, or to the children of such settlers, not being half-breeds.” The number of ‘white’ settlers and children to be granted an award, and the size of the award granted, rose. The number of ‘Halfbreed’/ Métis and children had reverted to the number proposed three years earlier. But, aside from incoming homesteaders, no one had received anything yet. In fact, the Minster of Justice in Canada had determined in 1874 that claims staked by ‘Halfbreed’/ Métis in compliance with a clause in the Manitoba Act recognizing “peaceable possession” were invalid.

An Order in Council in April 1875 and an additional Order in May 1875 created a Commission and authorized Commissioners from Canada to oversee scrip applications. On advice from the Department of the Interior to the Minister of Justice, the “peaceable possession” claims were to be considered on a case by case basis.

In 1876 an Order in Council was passed that determined scrip only would be issued — the land which had been held in reserve for distribution was ‘unlocked.’ Métis/ ‘Halfbreed’ individuals would have to compete with other settlers for tracts of land on a first come first served homesteading basis. In this year as well “halfbreeds” who had left Manitoba for the North-West Territories were to be allowed two years to apply for scrip.

[13] Roxanna Thompson, “Metis history in print,” Northern News Service Online, http://www.nnsl.com/frames/newspapers/2007-07/jul5_07met (accessed 28 February 2012),  states, “Scrip is an abbreviation of the term subscription receipt.” Frank Tough and Erin McGregor, “‘The Rights to the Land May Be Transferred’: Archival Records as Colonial Text — A Narrative of Métis Scrip,” in Natives & Settlers – Now & Then: Historical Issues and Current Perspectives on Treaties and Land Claims in Canada, ed. Paul W. DePasquale (Edmonton: University of Alberta Press, 2007), 36–38, define scrip as: “a term used to denote ‘a certificate, voucher, etc. establishing the bearer’s right to something’ (‘Scrip’). According to government officials then and now, Métis scrip, officially known as ‘Halfbreed’ scrip. was issued to Métis people with the intent of ‘extinguishing’ Indian title by granting land (or money) to individual Métis people. … The scrip process entailed more than government officials simply issuing coupons. … Because the individual interest in a scrip coupon could be converted to real interest in land, an elaborate system evolved to determine who was entitled to the coupons and how these coupons could be disposed of in ways that would meet the needs of scrip buyers. Put simply, paper could be converted into land. In a crude way, scrip might be regarded as compensation for surrendering proprietary interests in what we know today as ‘Aboriginal title.’”


Published: 18 March 2013

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