5) The Indian Act

[under construction]

[previous page: 4) Treaty Process]

Canada’s Indian Act has been the principal means of legislatively restricting rights associated with, and legal definitions of, Aboriginality.[1] Métis peoples are not described in conventional histories or political texts as falling under the Act. Nevertheless, by its reference to people ‘of Indian blood,’ particularly ‘children of Indian blood,’ historically the Act placed the power, to determine the lives of Métis individuals and to disrupt Métis communities, in the hands of Canadian bureaucrats.

~~~

 Origins

Canada’s Indian Act originated in 1868 as a statute that built on existing colonial (British) official statements regarding ‘Indians’ and laws.[2] It is still in operation. The Indian Act determined (and even with the Supreme Court decision of 8 March 2013, is still positioned to determine), who is ‘Indian’ in the eyes of the Canadian government, and who is not (whether by description or by default).[3]

~~~

Institutional Inconsistency: Tracing Definitional Changes over Time

The Indian Act has been modified on numerous occasions.[4] As a historically constructed document, it is not easy to understand, because framed in ambiguous terms. It has been “a statute of which few speak well.”[5]

  • To give one example of built-in malleability: from 1873 to 1876, the Act was structured so that any of its provisions, “from time to time,” might not apply to “Indians, or any tribe of them, or the Indian Lands, or any portion of them, in the North West Territories, or in the Province of Manitoba, or in the Province of British Columbia.”[6]
  • Or as an example of arbitrary application: in 1949, the Act was described as “loosely drawn and … replete with inconsistencies.”[7] One major inconsistency was introduced that year — when Canada and Newfoundland agreed to the Terms of Union, the Indian Act was not extended to the province, though it was operational in the rest of the country.[8]
  • As late as 1969 the Act was described as “‘legal hocus pocus’ that served only as a ‘divisive force.’”[9]

The terms of the Act divided children one from another, from home communities, and from related communities by particulates of ‘blood,’ fractions of Aboriginality, and in the case of Newfoundland and Labrador, an implied non-Aboriginality. While communities struggled to survive in light of the vagaries of the Act, it legislated the removal of their children to Canadian residential schools — including Métis children.[10]

Several provisions in the Indian Act determined whether children could or would be placed in government funded schools for ‘Indians.’

  • Chief among these was a provision asserted fairly consistently: the head of Indian Affairs, as Governor in Council, was empowered to determine on behalf of Canada how much funding would go towards the schools (which in turn determined how many children were wanted, or not wanted, in the schools). The power of the position steadily increased — though the title of the office would occasionally disappear to be replaced by a new one.

 • As of 22 May 1868 the position of oversight was held by the Secretary of State for the Provinces, who was also designated the Superintendent General of Indian Affairs.[11]

• In 1873, the title was changed to the Minister of the Interior, and his (all federal politicians at the time were male) attendant power was transferred to the newly created Department of the Interior, which had “the control and management of the affairs of the North West Territories.”[12]

• By 1876, the position was again referred to as that of a Superintendent General, but of the ‘Indian Branch’ of the Department of the Interior.[13]

• In 1880, the branch was officially named the Department of Indian Affairs (though it was still closely connected to the Department of the Interior in terms of personnel).[14]

• As of 1936, Indian Affairs became the responsibility of the Department of Mines and Resources, Northern Affairs Branch.

• From 1950 to 1965 the Department of Citizenship and Immigration was responsible.

· Meanwhile, as of 1953, the Department of Northern Affairs and Natural Resources had oversight over schools:

· from circa 1945 to 1955 via the separate establishments of the portfolios of Northern Affairs and of Indian Affairs — the latter was to oversee First Nations children and the former to deal with Inuit and Métis, although both made decisions affecting Métis children (sometimes in concert, other times not, usually in cooperation with the Churches operating the schools). [15]

• From 1966 to 2011, the Department of Indian Affairs and Northern Development was responsible.

• In 2011 the Department’s name became Aboriginal Affairs and Northern Development Canada — the change having “no impact on the mandate of the department or the Minister’s statutory responsibilities.”[16]

  • A second determining provision with respect to federally funded schools was not at all stable: the definition of children who were to attend the schools.

• For part of the history of the Indian Act, at some Canadian residential schools, eligibility for admission to a school depended on a child having ‘Indian blood.’

• At other times, at some schools, children were to be legally ‘Indian.’

While the definition of ‘Indian’ has been somewhat, though not entirely constant, the rules that allowed one to belong to the category ‘Indian’ varied dramatically at times.

From 1868, it was possible for ‘Halfbreed’/ Métis children to qualify as ‘Indian’ children, if they were “of Indian blood,” although there were conditions to be met. As of 1868, ‘Indian’ was defined by the Act as:

  • “All persons of Indian blood, reputed to belong to the particular tribe, band or body of Indians” who were recognized as “entitled to hold, use or enjoy the lands and other immovable property” that they inhabited. This Indianness extended to “their descendants.”
  • “All persons residing among such Indians, whose parents were or are, or either of them was or is, descended on either side from Indians” associated with the Band, “and the descendants of all such persons.”
  • “All women lawfully married to any of the persons” described above, the children of the marriage, “and their descendants.”[17]

Only men without ‘Indian blood’ were denied from the outset of the potential to become ‘Indians’ with a recognized entitlement to lands by way of lifestyle, association, and marriage. As far as Canada was concerned, a gendered entitlement to ‘Indian lands’ was the only measure of Indianness — superseding even consideration of ‘blood,’ as women who were in no way Aboriginal could become so by marriage.

By 22 June 1869, with the passage of An Act for the gradual enfranchisement of Indians, the Superintendent General had the power to confer Indianness, having been granted the right to award or deny ‘location tickets,’ which indicated a person was legally associated with a tract of land and could not be “summarily ejected” from it. The same Act introduced the notion that Indianness — “within the meaning” of the Indian Act — would be cancelled for Band daughters who married “any other but an Indian” and that their children would also not be ‘Indian, meaning that ‘Indian blood’ did not automatically assure entitlement to inhabit or benefit from any association with ‘Indian lands.’[18]

As of 1874, ‘Indians’ were defined by An Act to amend certain Laws respecting Indians as being those persons outlined above who additionally were paid annuities by Canada — which could only be obtained by way of having signed a treaty agreement.[19]

In 1876, the various legislations relating to ‘Indians’ that had been generated to that time were consolidated into one statute that applied “to all the Provinces, and to the North West Territories, including the Territory of Keewatin.”[20]

  • The idea of “irregular bands” was introduced, to describe a “body of persons of Indian blood” that had not signed a treaty but resided on lands that fell within the boundaries of Canada, even if only on a temporary basis.
  • By the definition of ‘Indian’ in the Indian Act of 1876, these people too fell under the authority of the Superintendent General as ‘non-treaty Indians’ — men “of Indian blood,” which included ‘Halfbreed’/ Métis and their children, and their lawful wives (and including illegitimate children, if the Band so decreed).

At this point, Band membership — irregular or regular — was a deciding factor when it came to Indianness.

Members of Bands were subject to a new consideration:

  • any adult member who “for five years continuously resided in a foreign country” could lose membership unless “discharging his or her duty” as a “professional man, mechanic, missionary, teacher or interpreter.”
  • Band membership had its limits: ‘Halfbreed’/ Métis were addressed by the Act, insofar as it decreed that no one ‘of Indian blood’ who “shared in the distribution of half-breed lands shall be accounted an Indian.”[21]

Some analysts have interpreted that last clause to mean Métis ceased to fall under the Indian Act as of 1876.[22] Such is not the case, however, when chronology is taken into consideration. At the time, the people eligible for the “half-breed lands” under discussion were only those referred to in the Manitoba Act — which was limited to matters within the boundaries of the province. Further, Manitoba scrip had not necessarily been distributed at this point (see 3) Scrip process, this site),[23] and there were many ‘Halfbreed’/ Métis living on lands beyond the bounds of the new province. There was nothing introduced in the Indian Act of 1876 that prevented ‘Halfbreed’/ Métis people from being counted as ‘Indian’ if they had taken treaty, or decided to take treaty in the future, or if they were widows of an ‘Indian,’ or if “the Superintendent-General, or his agent” decided to decree they were ‘Indians.’[24]

The Indian Act of 1876 did introduce one exceptionally onerous measure regarding anyone whom the Superintendent-General designated an ‘Indian’:

  • an ‘Indian’ was not a “person” unless, for some reason, the Superintendent-General decided they needed to be so.

Another amendment significantly reduced any advantages that might have been associated with being ‘Indian’ in terms of the settlement process.

  • Anyone who sought to be recognized as ‘Indian’ was barred from “having acquired or acquiring a homestead or pre-emption right to a quarter section, or any portion of land in any surveyed or unsurveyed lands in the said Province or Manitoba, the North-West Territories or the District of Keewatin.”[25] (Hence Matonekesekuawekemow/ John Colfield Sinclair’s difficulties – see 4) Treaty Process, this site.)

Incidentally, the Act of 1876 also introduced a new category of land ‘reserve.’ Canada had the right to create a “special reserve.” This was

“any tract or tracts of land and everything belonging thereto set apart for the use or benefit of any band or irregular band of Indians, the title of which is vested in a society, corporation or community legally established, and capable of suing and being sued, or in a person or persons of European descent, but which land is held in trust for, or benevolently allowed to be used by, such band or irregular band of Indians.”[26]

 In other words, a religious denomination could be granted a reserve — so long as it was inhabited by ‘Indians.’

On 15 May 1879, the Indian Act was again amended and again addressed ‘Halfbreed’/ Métis: they were to be “allowed to withdraw” from treaty “on refunding all annuity money received … under the said treaty, or suffering a corresponding reduction in the quantity of any land, or scrip, which such half-breed as such be entitled to receive from the Government.”[27] As mentioned in “4) Treaty Process” this site, a fair number of ‘Halfbreed’/ Métis people would subsequently decide to withdraw. Over the next two years alone, “over a thousand persons, regardless of ancestry, discharged from treaty to apply for scrip and three Treaty 6 First Nations in [what is now] Alberta ceased to exist as a result.”[28]

In 1880, an amendment decreed that no one who self-identified as ‘Indian’ would be allowed to take scrip (“the right to share in the distribution of any lands allotted to half-breeds”), unless:

  • he had settled on a “plot” and farmed or ranched it (and had not left it untended), making “permanent improvements prior to his becoming a party to any treaty”;
  • or he was an ‘Indian’ who had withdrawn from treaty before 1874.[29]

At the same time, economic advantages were withdrawn from those ‘Halfbreed/ Métis who to that point might have been considered ‘Indian,’ or who might have preferred to be ‘Indian,’ but who had set their sites on a professional career. Attaining an academic degree, or being admitted in any province “to practice law either as an Advocate or as a Barrister or Counsellor, or Solicitor or Attorney or to be a Notary Public,” or entering “Holy Orders,” or obtaining a license from “any denomination of Christians as a Minister of the Gospel,” could “ipso facto” (by having done so) lead to enfranchisement and the loss of rights conferred to other ‘Indians.’[30]

Other clauses of this Act, and the one that followed in 1881, made the choice to be ‘Indian’ less than final for women and children. As of 1880, the Superintendent-General had the power to exclude “natural children” — those born out of wedlock — under the age of two years from Band membership.[31]

The striking of women and children from treaty paylists was concerning to First Nations. Chief John Nowgallow of Birch River, Ontario, for instance, wrote to the Queen’s representative in Canada, Governor General John Campbell/ Marquess of Lorne, to plead the case of his daughter, Eliza, and her child. The two had been struck from the Birch River Band’s paylist, because she had married William Megnouabe, a “half-breed.” Nowgallow protested the inequity of his grandchild (and others besides), not receiving the annuity that had been a condition of taking treaty, while yet there were other “half-breeds” in Bands who were receiving the benefit. He counselled, “I hope you to give the money to all the halfbreeds as long as they have the Indian blood in them.”[32] The Department of Indian Affairs complied in this case, paying the annuities to Eliza’s husband via an Ojibwa and Ottawa Band of Manatoulin Island.

By 1886 an amendment to the Indian Act raised another consideration for ‘Halfbreed’/ Métis parents who were classified as ‘Indians.’ In the event that they died, the Superintendent-General was empowered to determine the living arrangements of their children by appointing whomever he chose “to take charge of such children and their property, and remove such person and appoint another, and so on as occasion requires.”[33]

The provision was potentially far-reaching as the Act of 1886 dictated that ‘Halfbreed’/ Métis parents could be classified as ‘non-treaty Indians’ if they followed “the Indian mode of life” — which was not defined and so was open to interpretation by the Department.[34] Loose wording in the Act meant determination of whether any particular ‘Halfbreed’/ Métis was ‘Indian’ or not was vulnerable to summary judgement and contradictory outcomes.

  • For example, if a family had traditionally lived on both sides of the border with the United States (in the course of procuring and trading in products manufactured from buffalo hunts for instance) and was associated with other such families, according to the Act they might be classed as an ‘irregular band’ of ‘Indians,’ no matter how temporarily they resided in Canada.
  • At the same time, the Act allowed that members of a Band might be classed as not ‘Indian’ if they “for five years continuously resided in a foreign country without the consent, in writing, of the Superintendent General or his agent.”[35]

It was in 1886 as well that the Act was enlarged to directly address Canada’s residential schools. The Governor in Council, was empowered to “establish an industrial school or a boarding school for Indians, or may declare any existing Indian school to be such industrial school or boarding school for the purposes of this section.”[36] Most notably, the Act decreed that “The Governor in Council may make regulations, either general or affecting the Indians of any province or of any named band, to secure the compulsory attendance of children at school” (meaning federal schools). According to the other provisions of the Act this could be interpreted as applying to such ‘Halfbreed’/ Métis as were regarded or reputed to be ‘Indians.’ Section 2 in fact extended the possibility of compulsory attendance to non-‘Indian’ children. Pupils are described in the Act not as exclusively ‘Indian,’ but more generally as “children of Indian blood.” [37] Thus, even without membership in a Band, ‘Halfbreed’/ Métis children seemed to fall under the purview of the school provision.

The Act provided additional regulations “which shall have the force of law,” over children who were legislated to attend the Canadian schools by virtue of ‘blood.’ The Department was empowered to secure the “the arrest and conveyance to school, and detention there, of truant children and of children who are prevented by their parents or guardians from attending.” Parents who did not comply with an order to send their children to a government school were subject to “punishment, upon summary conviction, by fine or imprisonment, or both.”[38]

Children “of Indian blood,” who were “under the age of sixteen years” could be conveyed to any “industrial school or boarding school, there to be kept, cared for and educated for a period not extending beyond the time at which such children shall reach the age of eighteen years.”

During this time the Governor in Council had sole authority to decide what was “best” for the children in terms of “annuities and interest moneys” that might be put towards “the maintenance of such schools respectively, or to the maintenance of the children themselves.”[39]

In 1887 the Act was further amended so as to give the Superintendent-General “final and conclusive” say in who was or was not an ‘Indian’ and to impose up to two weeks imprisonment on anyone summoned to answer questions on “any matter affecting Indians” who did not appear, or who refused to answer questions, or who did not produce requested documents.[40] This clause, and regulations regarding schools and students that were set in 1886, continued in force into the first decades of the twentieth century. Numerous amendments were added, however, which made searching through the Act and appended pages of changes, to interpret clauses in answer to specific questions, progressively more difficult as the years passed.

By 1920, the Indian Act and its amendments were again consolidated into one statute. At this time, the Act made clear that on all matters to which any Band might protest, “the regulations made by the Superintendent General shall prevail.”[41] It was also clear that the section regarding schools had both expanded and undergone some refining of terminology.

  • Compulsory attendance was no longer directed at all and any children of ‘Indian blood,’ rather it was only demanded of such children as were “Indians of any province or of any named band.”
  • Truancy was also no longer to be enforced against any children beyond those who were ‘Indian.’
  • The wording respecting children who were to attend industrial schools in a more voluntary capacity nevertheless still referred only to the necessity of pupils having “Indian blood.” The Act did not actually stipulate that the pupils had to be ‘Indians.’[42]
  • Additionally, the children “of Indian blood,” from infancy to sixteen years of age were still subject to “the committal by justices or Indian agents … to such industrial school or boarding school, there to be kept, cared for and educated” until they were eighteen years old.[43] They were not, however, to attend day schools on reserves, as these were intended solely “for the children of such reserve[s].”
  • Children of ‘Indian blood’ could likewise be excluded from “industrial or boarding schools for the Indian children of any reserve or reserves or any district or territory designated by the Superintendent General” to be solely for the instruction of reserve children.

Re-making Métis-‘Indians’ via Enfrancisement

All along, throughout the Act’s existence, it had provided that “Indians could become persons by voluntarily enfranchising — renouncing Indian status.”[44]

From 1857, the British colonial law, An Act of Gradual Civilization, had promoted the idea that Aboriginal peoples would give up titles to land, cease speaking their languages, and renounce their cultural practices and previously held rights in return for British citizenship.[45] On reaching the age of majority, male children of parents who had opted for citizenship on such terms, would qualify to vote, to own property, to license a business, and to serve on a jury. They would be allowed to “buy liquor, and send their children to public school.”[46]

The possibility of obtaining the right to vote appears to have been held out as an incentive to enfranchise for a protracted period of time (though in practice not all people who were enfranchised necessarily attained the right to vote).[47] Despite being offered the right (theoretically at any rate) to determine their children’s future through voting, First Nations people overwhelmingly resisted enfranchisement. A good many ‘Halfbreed’/ Métis, who took treaty and persistently identified as First Nations, rejected the option as well. The Indian Act was progressively reworded to make the conditions of enfranchisement easier to attain.[48] It made little difference in terms of actual voluntary conversion rates.[49]

As of 1920 into the 1960s, principally in the North, ‘Halfbreed’/ Métis children would continue to become ‘Indian,’ by the ongoing treaty process. To keep the number of people receiving monies issued by the Department as low as possible, in 1920 (and reinforced in 1923), the Indian Act was revised to allow compulsory enfranchisement.[50] In consequence, two Bands with children would eventually be enfranchised “as a group.”[51] Although both moves were described as ‘voluntary’ by the Canadian government, the one has been contested by the previously described Michel Band of Alberta (see 4) Treaty Process, this site).[52] In 1928, the Michel band had its numbers reduced by enfranchisement after a review by the Department of Indian Affairs — members acceding because access to education that would lead to professional careers was of concern.[53]

Children ‘of Indian Blood’ and Redefining the Scope of Government Obligations

The Constitution Act of 1930, otherwise known as the Natural Resources Transfer Agreements [NRTA] between Canada and the western provinces of Alberta, Saskatchewan, Manitoba, and British Columbia saw complications accrue (characterized at the time as “scrambled eggs”), with respect to government responsibility towards “Halfbreed” and “other Indians” who were not ‘Status Indians’ under the Indian Act.

The point of the Constitution Act was to bring the West in line with the East by handing control of the natural resources (including undeveloped “waste lands”) within provincial boundaries over to the provincial governments. The Act covered other sorts of transfers as well, however, including an implied oversight of some Aboriginal people (in accommodating outstanding entitlements to land), and the building of schools to make education available throughout each province.[54] Canada agreed to “transfer to the Province the money or securities constituting that portion of the school lands fund,” that the federal government had set aside in its budget. Canada also agreed to transfer into provincial control the “school lands” that had been set out under the Dominion Lands Act. These transfers constituted federal support “of schools organized and carried on therein in accordance with the law of the Province.”[55]

The problem was that the federal government had outstanding obligations to Aboriginal people that it was proposing to walk away from and convert to provincial responsibilities. The provinces objected. Confusion ensued.

One of the terms of the transfer agreement stated that “after the transfer, the provincial governments would undertake all of the federal governments’ continuing obligations to third parties.” There were two “‘catch-all’ paragraphs” that seemed to imply that “unspecified outstanding federal obligations” were included, relating to “existing trusts, contracts, and other arrangements with third parties in relation to the public lands and resources that were being transferred.” This was interpreted to mean “outstanding Métis scrip notes in circulation that had not yet been redeemed.”[56] Aspects of that circumstance were debated at length (centering on what lands would be allotted), but core definitions were left vague. By extrapolation, it appeared that responsibility to some Aboriginal children, previously a federal matter, might devolve to the provinces. However, the NRTA did not specifically define the extent of the responsibility. It appeared scrip-holders “had rights against the federal government (in legal terms, a right in personam).” It appeared that scrip could be inherited and that money scrip was kept in an account by the Department of the Interior on behalf of claimants. This meant that some claimants were overseen by the Department of the Interior. But, there was no unambiguous statement in the NRTA about which Aboriginal people (scrip holders or not) were really ‘Indians.’

The federal government and the provinces did not develop a mechanism to address the problem of ongoing transfers of children in and out of ‘Indian’ designations. Arguments continued from 1930 into the twenty-first century on the issue of whether Métis were indeed separate from the “other Indians,” mentioned in the NRTA — the provinces claiming “the Métis are ‘Indians,’”  the federal government claiming “the Métis are not ‘Indians.’”[57]

The ambiguity introduced by the NRTA meant children ‘of Indian blood’ would continue to attend federal ‘Indian’ schools, despite wording in subsequent versions of the Indian Act that purported regulations to the contrary.

Re-making ‘Indians’ as ‘Halfbreed’/ Métis — again

The Indian Affairs Branch demonstrated an ongoing commitment to reducing the number of people who were ‘Indians.’ In 1942, for example, the Band lists of the Lesser Slave Lake Indian Agency came under scrutiny. The Branch determined that the “number of additions to treaty” was too extensive. About seven hundred people were therefore struck from the treaty lists “on the grounds that their parents or grandparents were white or Métis.”

People protested and the procedure was investigated by Alberta District Court Justice W.A. Macdonald.[58] He reviewed the treaty and scrip options for Treaties 1 and 8. His report of 1944 found that about “one-third of the people in question were descended from Métis who accepted scrip and were therefore rightly discharged from treaty.” He did however observe:

“When Treaty No. 8 was signed the Indians were well aware that the Government took a broad and liberal view with respect to the class of persons eligible for treaty. Many of them taken into Treaty at that time were themselves of mixed blood. They knew that individuals of mixed blood who had adopted the Indian way of life were encouraged to take treaty. They cannot reconcile the removal from the band rolls of a large number of individuals who have been in treaty for many years, with their understanding of the situation as it existed when the treaty was signed.”[59]

It was Macdonald’s opinion that the Indians Affairs Branch had removed 294 people merely because agents “thought” they were “half-breeds.” The Branch did not adopt his suggestion that all who had been wrongly removed from treaty lists be reinstated. Only 129 people were readmitted to treaty.[60]

Calculations and the Cost of ‘Indian’ Personhood: 50% = Dis-memberment

Although the Indian Act of 1951 removed the definition of a ‘person’ as “an individual other than an Indian,” the clauses of the Act underscored the resolve of the federal government to limit its responsibility to Aboriginal people.[61] For instance, a “minimum descent” rule was introduced to enlarge the grounds for exclusion from legal ‘Indian’ status.

Since 1869 the children of women who had out-married from a Band had been targeted for debarment. More children were now subject to exclusion by “the so-called ‘double mother clause’” that focused on their father and paternal grandfather’s marriages. The new rule held that children born into a Band were not fully ‘Indian’ if their mother and their father’s mother “were not born into Indian Band membership or status, regardless of their actual ancestry.” Such children were arbitrarily decreed to be of “less than 50 percent Indian descent.” At the age of twenty-one they were “no longer considered an Indian in law” and were “required to leave the reserve.”[62] Any children they might have were likewise not legally ‘Indian.’

The Act also introduced a membership listing process with such provisions as:

“7. (1) The Registrar may at any time add to or delete from a Band List or a General List the name of any person who, in accordance with the provisions of this Act, is entitled or not entitled, as the case may be, to have his name included in that List.

….

10. Where the name of a male person is included in, omitted from, added to or deleted from a Band List or a General List, the names of his wife and his minor children shall also be included, omitted, added or deleted, as the case may be.” [63]

The membership lists were publically posted, including on the reserves in “places where band notices are ordinarily displayed.”[64] Children were therefore publically divided, into those who were ‘real’ Band members, and those who were only temporarily tolerated residents. Parents and grandparents were publically represented as either ‘real Indians,’ or as the cause of a child’s othering and displacement from home and community.

As of 1951, children who were not ‘Indian’ children were no longer directly referred to in the Act (except to say why they were not ‘Indian’ children). As of that year as well, the idea that Métis and their children did not come under the provisions of the Indian Act — because not named as ‘Indians,’ nor included in any clauses by way of ‘Indian blood’ — can be said to have become textually entrenched (if not completely enforced).

By 1958, in accordance with Section 112 of the 1952 version of the Indian Act, Indian Affairs judged that the remainder of the Michel Band should be forced to enfranchise.[65] The Minister appointed a Committee of Inquiry “as required by the compulsory enfranchisement provision.” By an Order in Council, on the recommendations of the committee, all members of the Band were enfranchised. Members of the Band appealed in 1956, and in 1959 the Canadian Parliament repealed the compulsory Band enfranchisement provision of the Act, “because it conflicted with the Canadian Bill of Rights.” Neither action brought the Michel Band back into legal existence however.[66] The Band children were among the “hundreds of thousands” of Aboriginal people forced by compulsory enfranchisement “to leave their communities, language and culture.”[67]

Over the following decades, enfranchisement provisions embedded in the Indian Act meant children of historical ‘Halfbreed’/ Métis ancestry, along with children of more recent parings of parents — who were defined by additional legislation and judicial findings as ‘racially’ or ‘ethnically’ distinct — “were externally dis-membered as Indian or non-Indian, status and non-status.”[68]

The Re-membering Process:

Not surprisingly, the 1960s and 1970s saw an increase in protests by both Non-Status Indians and Métis, with combined calls to redress the violence done to Aboriginality.[69]

The Native Council of Canada formed in 1971 out of the Métis Association of Alberta, the Métis Society of Saskatchewan, the Manitoba Métis Federation, and the BC Association of Non-Status Indians.[70] In 1979, under the leadership of Harry Daniels, the Council issued a “Declaration of Metis and Indian Rights” that stated in part:

“We believe it is our right as a people with a rich history and culture to preserve our identity while we participate as partners in the development of Canada. In the past we were denied this right. If we were to succeed in the eyes of the larger society we were expected to give up our identity and beliefs. We were expected to assimilate.”[71]

The declaration included the statement: “Metis Nationalism is Canadian Nationalism. We Embody the True Spirit of Canada and are the Source of Canadian Identity.” An explanation of the terms of the declarations stated,

“There can be no distinct Canadian identity nor can there be real national unity until Canadians accept their Aboriginal heritage. The Metis fact, not the French or English, represents the true basis of Canadian culture and identity.”[72]

Daniels is credited with convincing Justice Minister Jean Chrétien in 1981 to include Métis as one of the three peoples to be defined as Aboriginal in Section 35 of the Constitution Act of 1982. While the charter document re-placed Métis within an Aboriginal designation, the re-membering, because adhering to terms set during the process of colonialism, had the consequence of having “indelibly separated ‘Métis’ from ‘Indian’ as coherent and distinctly separate entities in the minds of the public (and many Indigenous people).” [73]

The Constitution Act of 1982 included the Canadian Charter of Rights and Freedoms which entrenched equality of rights that were effective as of 1985. Canada therefore was “compelled to address sexual discrimination in the Indian Act.”[74]

The Act was duly amended by Bill C-31 in 1985[75] to, among other things, “excise sexist discrimination that determined recognition of Indian status.”[76]

  • One amendment was designed to address the historical inequity of Status Indian women, who had married non-‘Indians,’ thereby losing status for themselves and their children. Section 12(1)(b) of the Act — the ‘marrying out’ rule — was repealed.[77] Women who had been denied status were to be reinstated as Treaty Indians and that status was to transmit to their children. Roughly 26,700 people were affected.
  • Unfair enfranchisement due to Section 12(1)(a)(iv) — the “double mother rule” — was also to be reversed. [78] An estimated 52,000 children who were ‘not Indians’ due to automatic enfranchisement during the 1920s through to the 1980s — and who might have been classified as Métis as a result — would again be ‘Indians.’ There was a possibility that they would recover Band membership, but only if Band membership rules were satisfied, or, “in the event that Bands cannot or do not take control of their membership, then the children in question would be given Band membership two years after royal assent of Bill C-31.”[79]
  • Bill C-31 also terminated status that had been conferred through marriage, rather than descent.  It has been estimated that the revisions saw 127,000 people have status restored, while 106,000 people lost status.[80]

Additional problems were created.

  • First, “Criteria establishing Indian status did not eliminate sexist discrimination, but merely deferred it from one generation of women to their descendants.”[81] C-31 Sections 6(1) and 6(2) created two classes of Status Indian women: those with two registered ‘Indian’ parents, and those with one registered parent. In the latter class, a woman’s daughter might become fully ‘Indian’ in terms of Band membership, but the woman’s grandchildren would not, and they might lose status entirely.
  • Second, First Nations were divided along gender lines on issues such as: balancing control of membership within Bands against seeking autonomy from the federal government in terms of First Nations citizenship; obtaining residence on reserve; and gaining access to social services (both latter problems being difficult to resolve given that reinstatement of thousands of people onto Band lists in some cases “put more pressure on budgets for housing, education and health”).[82]
  • Third, the reversal of enfranchisement was not complete: ‘Indian’ status was restored to over 750 members of the Michel Band under Section 6, but Bill C-31 had no provision to restore the Band itself to status.[83]

~~~

The Indian Act accomplished little in the way of its purported goal of attempting to “absorb” ‘Indians’ “into the body politic” of Canada — that was really only a matter of granting all Aboriginal people the right to vote (obtained in 1960; see Timeline: Changes in Citizenship and Rights, Canada 1900-1945 [and Beyond]).

The Act has contributed immensely, however, to the politicization of Aboriginal communities as they attempt to redress the “distortions of identity,” that the Act has engendered.[84]

  • Significant numbers of ‘Halfbreed’/ Métis, who had taken treaty as First Nations — or their descendants — subsequently had that status undone, eventually becoming ‘non-status Indians.’ Thus, untangling “the cultural and historical mixed-blood meanings of Métisness” from the “legal issue of being non-status” has become very nearly “impossible.”[85]
  • Throughout Canada, people who self-identify as ‘Indian’/First Nations but who have been denied status or reinstatement of status have been in a position where joining a Métis organization is sometimes the only means of having their Aboriginality recognized and supported socially, culturally, and politically.[86]
  • While Canada maintains its authority to impose and uphold artificial criteria of belonging to manage the distribution of legal rights, the children of First Nations, Inuit Nations, and Métis Nations have suffered dislocation and disassociation and witnessed bitter division.[87]
  • The experiences of many Aboriginal children, whose ‘mixed’ ancestry defied notions of fixed identity, have also become ‘invisible’: when cultural and historical realities are legally denied, shared experience cannot be readily described (the paramount shared experience thereby becoming one of perpetually confronting the denial of a culturally rich history).[88]

Historically, Canada’s varied processes devised to subdue Aboriginality, meant that ‘Halfbreed’/ Métis were not uniformly recognized as Aboriginal people who fell under any one particular definition, their children were not officially demarcated as a clearly separate category of children. Laws and legislation only indirectly described ‘Halfbreed’/ Métis children, sometimes implying they were potentially ‘Indian,’ and at other times indicating they probably were not.

Such indirect references meant direct consequences for children could arise out of interpretation. Being ‘Halfbreed’/ Métis was not a biological condition, nor a static cultural condition. It was not a particular political, economic, or social condition systematically defined across Canada, or even within a province or territory. Interpretation, therefore, could vary widely. In such a circumstance, children were left unprotected by the very society and government that propounded the “protection” of Aboriginal peoples as a goal.[89]

[next page, under construction: Conclusion]


[1] Joseph Howe, Report of the Indian Branch of the Secretary of State for the Provinces (Ottawa: I.B. Taylor, 1872), stated, “The Acts framed in the years 1868 and 1869, relating to Indian affairs, were designed to lead the Indian people by degrees to mingle with the white race in the ordinary avocations of life.”

[2] See Jo-Anne Fiske and Evelyne George, “Seeking Alternatives to Bill C-31,” 2–3, for a precise description of the patriarchal nature of the previous laws, the consequences for women and children, and how patriarchy and gendered punishments were carried forward.

[3] Wendy Moss and Elaine Gardner-O’Toole, “Aboriginal People: History of Discriminatory Laws,” (November 1987; revised November 1991), note,

“The trend in Indian legislation over time was clearly to integrate the Indian (whether he wished to or not) by the dual mechanism of the ‘shrinking’ or increasingly restricted definition of the term ‘Indian’ and enfranchisement, or the removal of Indians from status as they acquired the attributes of ‘White’ civilization. The result today is that large group of natives outside the Indian Act: ‘non-status’ Indians.”

[4] Canadian Human Rights Commission “1.2. The Statutory Assault on Identity,” Balancing Individual and Collective rights: Implementation of section 1.2 of the Canadian Human Rights Act, 48, notes “The first consolidated Indian Act of 1876 was amended 20 times in the first 25 years of Confederation … [and] amended another 21 times by 1951.”

[5] Bill Henderson, “Notes on the Indian Act,” The Indian Act, R.S.C. 1985, c. I-5 (Annotated), BloorStreet.com (accessed 28 December 2013).

[6]Chap. 4. An Act to provide for the establishment of ‘The Department of the Interior’” (May 3, 1873) [nb: the web page is mistitled “CHAP. 4. An Act to further amend ‘The Indian Act, 1880.’”], notes, “This Act shall be construed as one Act with the Acts thirty-first Victoria, chapter forty-two, and thirty-second and thirty-third Victoria, chapter six.”  See also Canada, “An Act to amend and consolidate the laws respecting Indians, S.C. 1876, c. 18,” Library Services, AANDC (accessed 28 December 2013).

[7] Judge Macdonald, “Report,” (7 August 1944), to Hon. T.A. Crerar, Minister of Mines and Resources, cited in Madill et al, “Treaty Research Report – Treaty Eight.”

[8] See Maura Hanrahan, “The Lasting Breach: The Omission of Aboriginal People From the Terms of Union Between Newfoundland and Canada and its Ongoing Impacts,” paper prepared for the Royal Commission on Renewing and Strengthening Our Place in Canada (March 2003): 1, who notes

“The 1949 Terms of Union between Newfoundland and Canada made no mention of Aboriginal people in the new province. This deviated from standard practice when a jurisdiction joined the Canadian federation and First Nations people were registered, reserves created, and programs and services delivered. Because there was no mention of First Nations, the Indian Act was not applied in Newfoundland. This meant that the province’s Innu and Mi’kmaq were ineligible for the range of programs and services enjoyed by their counterparts in continental Canada. In fact, they did not exist in law and thus lacked the recognition as previously sovereign nations that their counterparts enjoyed elsewhere in Canada. Thus, their situation is unique in the country. Indeed, recognition for them and for the Inuit and their cousins, the Labrador Metis, has come very slowly and in piecemeal fashion. The omission has had lasting negative repercussions in Newfoundland and Labrador in terms of community health, community infrastructure, and land claims, etc.”

[9] Harold Cardinal quoted in F. Laurie Barron and James B. Waldram, eds., 1885 and After: Native Society in Transition (Regina: Canadian Plains Research Center, 1986), 282.

[10] Norma J. Hall, essay, “We Were Children: The Provision, Conduct, Legacy and Implications for Reconciliation of Residential Schooling for the Métis,” with appended list of schools, researched for the Truth and Reconciliation Commission, Canada (2012). Mark Kennedy, “At least 4,000 aboriginal children died in residential schools, commission finds: Truth and Reconciliation Commission officials expect toll to rise as more records reviewed,” News, Canada.com (3 January 2014), indicates just how onerous the consequences of being removed to a residential school could be.

[11] Canada, “CAP. XLII, Date: Assented to 22nd May, 1868. An Act providing for the organisation of the Department of the Secretary of State of Canada, and for the management of Indian and Ordnance Lands,” Library Services, AANDC (accessed 28 December 2013); and Canada, “An Act providing for the Organization of the Department of the Secretary of State of Canada. (May 22, 1868),” Library and Archives Canada [LAC] (accessed 28 December 2013).

[12]Chap. 4. An Act to provide for the establishment of ‘The Department of the Interior.’”

[13] Canada, “Act to amend and consolidate the laws respecting Indians, S.C. 1876, c. 18”; and “An Act to amend and consolidate the laws respecting Indians. (April 12, 1876),” LAC (accessed 28 December 2013).

[14] Canada, “Chap. 28 An Act to amend and consolidate the laws respecting Indians (Date: Assented to 7th May, 1880),” Library Services, AANDC (accessed 28 December 2013); and Canada, “Chap. 28. An Act to amend and consolidate the laws respecting Indians (Assented to 17th May, 1880),” LAC,  (accessed 28 December 2013).

[15] See “Historical Timeline, From 1700s to the Present,” Union of BC Indian Chiefs (accessed 28 December 2013); and “History,” Indian Affairs Annual Reports, 1864 – 1990, LAC (accessed 28 December 2013).  Other federal agencies with power over Métis children included: Federal Government health authorities (as of 1904 the Chief Medical Officer of Immigration and Indian Affairs, Departments of the Interior and Indian Affairs, followed by Health Canada as of 1945); the Federal Minister of Agriculture (because responsible for public health and quarantines); the Federal Justice System (regarding ‘juvenile delinquents’); and RCMP (particularly in the North).

[16]Change to the Department’s Name,” AANDC (accessed 28 December 2013).

[17] Canada, “Act providing for the organisation of the Department of the Secretary of State of Canada”; and Canada, “Act providing for the Organization of the Department of the Secretary of State of Canada.” At the time, “Halfbreeds” were known to have been living on reserves in Ontario as Treaty Indians — the fact confirmed by a census taken in 1858. The census made particular reference to “persons … of mixed blood claiming relationship through the Mother.” To give a few examples, such persons were counted at: Nekickshegeshing, in Chief Wagemake’s Band; Shebanawaning, in Wabakekek’s Band; Spanish River, in Namassin’s and Nasquagabo’s Bands; Wenabejakoknum, near Lake Nipising, in Dokis’s Band; Lake Nipising HBC Post area, in Shabokeshich’s Band; Wanabitibing, in Tagawinini’s Band; Thessalon River, in Kiakonse’s Band; One Mile Island, in Mishiquanga’s Band; Partridge Point and Garden River, in Shinguacousi’s Band, which was overseen by his son Oguste, and in Now-quai-ga-bo’s family on the reserve. See Canada, Parliament, “Appendix No. 21, 21 Victoriae, A. 1858,” Sessional Papers No. 6, Journals of the Legislative Council of the Province of Canada: Being the First Session of the Sixth Provincial Parliament 1858, vol. 16 (Toronto: “printed at the ‘Leader’ and ‘Patriot’ Office,” n.d.)

[18] Canada, “CAP VI. An Act for the gradual enfranchisement of Indians, the better management of Indian Affairs, and to extend the provisions of the Act 31st Victoria, Chapter 42 (Assented to 22nd June, 1869),” LAC (accessed 28 December 2013).

[19] Canada, “Chap. 21. An Act to amend certain Laws respecting Indians, and to extend certain Laws relating to matters connected with Indians to the Provinces of Manitoba and British Columbia. Date: Assented to 26th May, 1874,” Library Services, AANDC (accessed 28 December 2013); and Canada “Chap. 21. An Act to amend certain laws respecting Indians, and to extend certain Laws relating to matters connected with Indians to the Province of Manitoba and British Columbia (Assented to 26th May, 1874),” LAC (accessed 14 March 201228 December 2013).

[20]Chap. 18. – An Act to amend and consolidate the laws respecting Indians (Assented to 12th April, 1876),” Library Services, AANDC (accessed 28 December 2013); and “Chap. 18. An Act to amend and consolidate the laws respecting Indians (Assented to 12th April, 1876),” LAC (accessed 28 December 2013).

[21] Ibid. Band daughters again would “cease to be Indian” if they married non-‘Indians’ (even though they could still collect annuities conferred by way of taking treaty). See also Constance Backhouse, “Historical Construction of Racial Identity and Implications for Reconciliation,” commissioned by the Department of Canadian Heritage for the Ethnocultural, Racial, Religious, and Linguistic Diversity and Identity Seminar Halifax, Nova Scotia November 1-2 (2001), 4. Moss and Gardner-O’Toole, “Aboriginal People: History of Discriminatory Laws.”

[22] See for example, Bonita Lawrence, “Real” Indians and Others: Mixed-blood Urban Native Peoples and Indigenous Nationhood (Lincoln: University of Nebraska Press, 2004), 86, 89, 90, who avers, the Indian Act created “‘Indian’ and ‘half-breed’ as two entirely distinct categories of Indigeneity, by not allowing those classified as ‘halfbreed’ to enter into treaties or to live on the newly created reserves.” She concedes, however, that “This standard [the Indian Act] used to distinguish Indians from half-breeds in western Canada has in fact been virtually meaningless since its inception.” She notes the two labels were only sometimes “irrevocable” once they were applied, by qualifying ‘irrevocable’ to mean “after 1885 and in theory.”

[23] Canada, “Act to amend and consolidate the laws respecting Indians”; and Canada, “Act to amend and consolidate the laws respecting Indians.” Camie Augustus, “Métis Scrip,” Our Legacy, University of Saskatchewan Archives (accessed 28 December 2013).

[24] Canada, “Act to amend and consolidate the laws respecting Indians”; and Canada, “Act to amend and consolidate the laws respecting Indians.”

[25] Ibid. Moss and Gardner-O’Toole, “Aboriginal People: History of Discriminatory Laws,” note,

“Section 70 of the 1876 Indian Act would seem clearly to represent a further aspect of the isolationist policy for unenfranchised Indians; i.e., the privileges and benefits generally available to the rest of society were to be withheld as inducements for these Indians to abandon their distinctive identities and adopt European ways. Under the heading ‘Disabilities and Penalties,’ section 70 of the 1876 Indian Act prohibited Indians from homesteading on the prairies.”

According to their interpretation,

“its clear intent was to prevent Indians who had signed treaties from receiving both a share of reserve land and a homestead. However, the provision expressly applied to non-treaty and treaty Indians alike and, in addition, most of the western treaties allowed for a maximum of 160 acres or 1 square mile per family of five (and proportionally less for smaller families) whereas federal homestead laws allowed free land grants ranging from 160 to 320 acres per head of family.”

In addition,

“Section 10 of the 1876 Act made it even clearer that a western Indian could not acquire a ‘free’ grant of Crown lands other than through a share of reserve land. Under this provision, any improved land possessed by an individual Indian that was to be included or surrounded by a reserve would simply be merged with the reserve land. The Indian then had the same ‘privilege’ as an Indian holding under a reserve location ticket.”

[26] Ibid.

[27] Canada, “Chap. 34. An Act to amend ‘The Indian Act, 1876.’Date: Assented to 15th May, 1879,” Library Services, AANDC, (accessed 28 December 2013); and “Chap.  34. An Act to amend ‘The Indian Act, 1876’ (Assented to 15th May, 1879),” LAC (accessed 28 December 2013). Lawrence, “Real” Indians and Others, 93, cites Ken Hatt (1986: 197) to note the Act was “amended to enable individuals who were ‘really’ half-breeds to withdraw from treaty.”

[28] Lawrence, “Real” Indians and Others, 93.

[29] Canada, “Act to amend and consolidate the laws respecting Indians”; and Canada, “Act to amend and consolidate the laws respecting Indians.” During the time that John Colfield Sinclair framed his argument with Indian Affairs, the only requisite for a man to be considered Indian was to have ‘Indian blood’ and belong to a band — if the band had taken treaty he was a Treaty Indian; if the band that had not taken treaty he was a “non-treaty Indian.” The Act of 1880, affirmed that his children were also eligible to be Indians, his lawful wife was automatically an ‘Indian.’ Additionally, the Act noted that “The Half-breeds who are by the father’s side either wholly or partly of Indian blood now settled in the Seigniory of Caughnawaga, and who have already inhabited the said Seigniory for the last twenty years, are hereby confirmed in their possession and right of residence and property, but not beyond the tribal rights and usage which others of the band enjoy.” Olive P. Dickason (1992:279), is cited in Lawrence, “Real” Indians and Others, 89, to support the opinion that “in 1880, the Canadian government modified the Indian Act to specifically exclude ‘half-breeds’ from coming under the provisions of the act, and from any of the treaties.”

[30]Legislation Concerning Canada’s First Peoples,” Canada’ First Peoples, Goldi Productions Ltd. (accessed 28 December 2013), asserts that it was not until the Indian Advancement Act of 1884 (an amendment) that “the Act … stripped any Indian of his rights under the Act who obtained a University Education or Ordination.”

[31] Canada, “Act to amend and consolidate the laws respecting Indians”; and Canada, “Act to amend and consolidate the laws respecting Indians.” See also Moss and Gardner-O’Toole, “Aboriginal People: History of Discriminatory Laws,” who note,

The Indian Act, 1880 had a … detailed provision, section 20, that also gave the Superintendent-General the power at any time to remove a widow from the administration and charge of reserve land (held under location ticket) and of any goods held by her on behalf of her minor children. The Superintendent-General was essentially an executor with extraordinary powers to remove at will any guardian (including the widow) of the children of a deceased Indian.”

[32] LAC, “Manitowaning Agency – Correspondence Regarding Chief John Nowgallow’s Daughter who has been struck from the Paylists because she has married a Half0Breed,” (1881), items  2, 4.

[33] See Canada, “Chap. 27. An Act further to amend the ‘The Indian Act, 1880’ (Assented to 19th April, 1884),” LAC (accessed 28 December 2013).

[34] Hatt (1986: 197), is cited in Lawrence, “Real” Indians and Others, 93, to support the statement: “new regulations were created ensuring that individuals who ‘led the mode of life of Indians’ were not to be granted discharge from treaty.” Nevertheless, in 1883 the Cape Croker band had passed a resolution to let two families of “French halfbreeds” into the band, but it was disallowed by Indian Affairs, which argued the women had married out. See LAC, “Cape Croker Agency – Correspondence Regarding the Admission to Two Half-Breed Families to the Cape Croker Band,” (1883), 1-8.

[35] Canada, “Chap. 43. An Act respecting Indians,” LAC,  (accessed 28 December 2013), is also known as ‘The Indian Act.’ 43 V., c.28, s.1.

[36] Ibid. [37] Ibid. [38] Ibid. [39] Ibid.

[40] Canada, “Chap. 33. An Act to amend ‘The Indian Act’ (Assented to 23rd June, 1887),” (accessed 28 December 2013).

[41] See Office Consolidation, The Indian Act 1906, As Amended by 910 Ed. VII, 1910 — C. 28. 12 Geo. V, 1911 — C.14. 4-5 Geo. V, 1914 — C. 35. 89 Geo. V, 1918 — C. 26. 9-10 Geo. V, 1919 — C. 56. 1011 Geo. V, 1920 — C. 50. Consolidated and Indexed (1920), also known as the Indian Act R.S., c. 43, s.1. [For link to text see note below.]

[42] I am not sure of the precise date. The Acts online are not all correctly cached or titled. See “6 Edward VII, An Act to amend The Indian Act (Assented to 13th July, 1906),” LAC  (accessed 28 December 2013), which appears actually to be the Office Consolidation, The Indian Act 1906, As Amended of 1920 cited in the preceding note.

[43] Office Consolidation, The Indian Act 1906, As Amended; see also  “Act to amend The Indian Act.”

[44] Henderson, “Notes on the Indian Act.”

[45] Olive Patricia Dickason, Canada’s First Nations: A History of Founding Peoples from Earliest Times (Norman: University of Oklahoma Press, 1992), 259, notes,

“Although those who became enfranchised lost the right to be classed as ‘Indians’ under the Act, that did not affect either their treaty rights (other than treaty payments) or their right to live on a reserve.”

Moss and Gardner-O’Toole, “Aboriginal People: History of Discriminatory Laws,” note,

“the enfranchisement of Indians was one of the major objectives of federal Indian legislation. Enfranchisement brought the end of special legal status and the end of legal acknowledgement of a separate Indian identity. To the government, it meant the end of its special legal obligations and the successful absorption of a minority culture. Enfranchisement has traditionally been equated with ‘civilization’; that is, it was equated with the abandonment of a culture perceived to be inferior and savage for a ‘superior’ European one. From a human rights perspective, enfranchisement policies, whether voluntary or compulsory, have had a number of objectionable aspects. Voluntary enfranchisement has required Indians to prove that they were civilized in order to leave the legal regime of the Indian Act and to exercise civil and political rights available to non-natives such as the right to vote or to homestead Crown land.”

[46] Dickason, Canada’s First Nations, 259.

[47] Moss and Gardner-O’Toole, “Aboriginal People: History of Discriminatory Laws.” After the initial confederation of 1867, provincial regulations in Canada determined who would vote in federal elections. Except for Newfoundland and Nova Scotia, the provinces used Acts of legislation to “in one way or another” disqualify ‘Indians’ from voting. The Acts did not define the term ‘Indian.’ Thus, depending on the time, place, and who was making up the voter’s list, enfranchised ‘Indians,’ people who opted out of treaty, and people who had taken scrip may have been denied the vote as well.

[48] Ibid, explain,

“As the maintenance of a dependent protected class came to be a large financial burden on the treasury, the pressure to reduce the size of the status group grew. The process of enfranchising was made progressively easier. The right of the band to consent to the enfranchisement of its members was eroded. Finally, the pressure to ‘integrate’ the Indians resulted in the compulsory enfranchisement legislation of 1920 and 1923.”

[49] See Canadian Human Rights Commission, “1.2. The Statutory Assault on Identity,” 48.  See also Darlene Johnston, “Forced Exclusion, Forced Belonging: The First Nations of Canada,” who notes,

“In 1947, when Parliament passed the first Canadian Citizenship Act, all persons then residing in Canada, who had been born in Canada, were recognized as ‘natural-born Canadian citizens’. All persons, that is, except for ‘Indians’ as defined under the Indian Act. You see, it would have been difficult to include as citizens a class of persons who were specifically excluded from voting in federal elections. A decade later, ‘Indians’ were retroactively deemed to be citizens, albeit in the category reserved for naturalized aliens, that is, ‘other than natural-born Canadian citizen’. Even so, it would not be until 1960, in the wake of the Canadian Bill of Rights being passed, that ‘Indians’ would be able to vote without first having to relinquish their treaty rights and sever their community ties.”

[50] Moss and Gardner-O’Toole, “Aboriginal People: History of Discriminatory Laws,” state,

“As the maintenance of a dependent protected class came to be a large financial burden on the treasury, the pressure to reduce the size of the status group grew. The process of enfranchising was made progressively easier. The right of the band to consent to the enfranchisement of its members was eroded. Finally, the pressure to ‘integrate’ the Indians resulted in the compulsory enfranchisement legislation of 1920 and 1923.”

Johnston, “Forced Exclusion, Forced Belonging,” notes,

“The persistence of communities with separate lands, languages and cultures, came to be seen by government officials as the ‘Indian problem’. In 1920, compulsory enfranchisement was proposed by Duncan Campbell Scott, Superintendent General of Indian Affairs: ‘I want to get rid of the Indian problem … Our object is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic, and there is no Indian question, and no Indian Department, that is the whole object of this Bill’.”

[51] Canadian Human Rights Commission, “Statutory Assault on Identity,” 48. The two bands referred to would be the Michel Band and the Sucker Lake Band, in Ontario, which “consisted of one family living on a small reserve on Manitoulin Island.” See Canada, Department of  Citizenship and Immigration, “Enfranchisement,” Report of Indian Affairs Branch for the Fiscal Year Ended  March 31 (Ottawa: Queen’s printer, 1958), 65, which dates the enfranchisments to 1958.  See also Indian Affairs Branch, Department of Citizenship and Immigration, A Review of Activities, 1948 – 1958 (Ottawa: Queen’s printer, 1959), 35-36. Frederick H. Abbott, Report of An Investigation Made In 1914 Under the Direction of the Board of Indian Commissioners (Washington DC: 1915), 44, notes,

“The Wyandottes of Anderson, a band of Huron stock were enfranchised in 1881. By education and intermarriage they had become civilized. One of their members had represented the County of Lambton in the Provincial Parliament. They were self-supporting and the experiment in enfranchising the whole band was not in any way hazardous. A few other bands in both provinces are ripe for like treatment, but it is not present policy of the Government to force Indians into full citizenship.”

[52] See P.E. James Prentice and Carole T. Corcoran, “Friends of the Michel Society Inquiry: 1958 Enfranchisement Claim,” report, Indian Claims Commission (1998), 1-50.

[53] “Michel Band History,” http://www.michelfirstnation.net/our-story.html (accessed 21 February 2012).

[54] William F. Maton, transcription, “Constitution Act, 1930, 20 – 21 George V, c. 26 (U.K.) An Act to confirm and give effect to certain agreements entered into between the Government of the Dominion of Canada and the Governments of the Provinces of Manitoba, British Columbia, Alberta and Saskatchewan respectively (10th July 1930),” The Solon Law Archive (accessed 28 December 2013). See also “The Alberta Natural Resources Act, Assented to April 3, 1930, Chapter 21, Alberta An Act Respecting the Transfer of the Natural Resources of Alberta, Also referred to as the Natural Resources Transfer Agreement (N.R.T.A.),” which states

“The term ‘Indians’ contained in the NRTA has been interpreted by the Alberta Court of Queen’s Bench in the Ferguson case (1994) to include non-treaty Indians and even Metis, with respect to harvesting rights so long as that person is of ‘Indian blood’ and following ‘an Indian mode of life’. However, in the Blais case (2003) the Supreme Court of Canada held that Metis are not Indian for the purpose of the NRTA.”

[55] Maton, transcription, “Constitution Act, 1930.”

[56] Nicole C. O’Byrne, “‘A Rather Vexed Question …”: The Federal-Provincial Debate over the Constitutional Responsibility for Métis Scrip,” Review of Constitutional Studies/Revue d’études constitutionnelles 12. 2 (2007): 216-253, particularly 217, 224, 223.

[57] Kristopher Crawford-Dickinson, “Indians and the Division of Powers in Canada,” power point lecture, York University (accessed 15 March 2012), slides 18-19.

[58] Madill, “Treaty Research Report – Treaty Eight.”

[59] Ibid. [60] Ibid.

[61] Henderson, “Notes on the Indian Act.” See also United Nations, Human Rights Committee, Selected decisions of the Human Rights Committee under the optional protocol: International Covenant on Civil and Political Rights, vol. 4, fortieth to forty-sixth sessions (October 1990October 1992) (New York: United Nations, 2004), 17. [62] Canadian Human Rights Commission, “Statutory Assault on Identity,” 48.

[63] Canada, “15 George VI. Chap. 29. An Act respecting Indians (Assented to 20th May, 1951),” LAC (accessed 28 December 2013).

[64] Ibid, states the list “shall be posted in a conspicuous place in the superintendent’s office that serves the band or person to whom the list relates and in all other places where band notices are ordinarily displayed.”

[65]Michel Band History.”

[66] Canadian Human Rights Commission, “Statutory Assault on Identity,” 48.

[67] Moss and Gardner-O’Toole, “Aboriginal People: History of Discriminatory Laws.” “Indian Act,” History, Okanagan Indian Band, http://www.okib.ca/history/indian_act.php (accessed 28 December 2013), comments as well on the White Paper of 1969, explaining,

“The move to assimilation culminated with the ‘White Paper’ of 1969. The proposal was presented by then Indian Affairs Minister Jean Chretien. It would have lead to the repeal of the Indian Act. However, it also would have led to the termination of treaties and any other special status granted First Nations people.”

Its defeat was

“seen by many as the most important political victory for Canada’s First Nations, however it was a mixed blessing. While the Chretien legislation was eventually withdrawn, the Indian Act remained in place and with it maintaining restrictions on First Nations. … While most of the ideas in the 1969 paper never came to fruition, the move to reduce the size and power of the federal Department of Indian and Northern Affairs went ahead — albeit in an ad-hoc way. Many of the powers once held by the department and the Indian Agent were quietly transferred to Band Chiefs and Band Councils. This move caused several internal problems that have never been addressed.”

[68] Kathy Absolon and Cam Willett, “Putting ourselves forward: Location in aboriginal research,” in Research and resistance: Critical, indigenous and anti-oppressive approaches, ed. Leslie Brown and Susan Strega (Toronto: Scholar’s Press, 2005), 115. See also Moss and Gardner-O’Toole, “Aboriginal People: History of Discriminatory Laws”; and Emma Larocque, Defeathering the Indian (Agincourt ON: Book Society of Canada, 1975), 17.

[69] See Judy D. Daniels, “Ancestral Pain: Métis Memories of Residential School Project,” originally prepared for the Métis Nation of Alberta (3 April 2003), in Chartrand, Logan, and Daniels, “Métis History and Experience,” 112; James Christoffer Balness, “Perceptions of parents in selected Metis communities concerning the composition of a desirable social studies program,” M.Ed. thesis (Winnipeg: University of Manitoba, 1980), cited in Larry N. Chartrand, “Métis Residential School Participation: A Literature Review,” 17; “Overview of the UNN,” United Native Nations (accessed 12 October 2011); Ralph T. Pastore, “The History of the Newfoundland Mi’kmaq” (accessed 28 December 2013); “1979 Declaration of Metis and Indian Rights,” http://web.archive.org/web/20110826172710/http://www.abo-peoples.org/Features/Declaration/dec.html (accessed 28 December 2013) describes CAP as “Representing off-reserve Indians and Métis people living in urban, rural and remote areas throughout Canada”; Canada, Indian and Inuit Affairs, Office of Native Claims, Northern Affairs Administration, 1979 – 1980 Annual Report (Ottawa: for Indian Affairs and Northern Department, 1980), 31, observes that the Dene Nation and the Metis Association of the Northwest Territories both sought to have grievances addressed. The government noted that “natives in the Valley saw themselves as essentially one people, sharing the same resources and living in the same communities,” and used that as an excuse to refuse to settle unless “the Dene and Métis to achieve a joint mechanism for the negotiation of their claims” and to cancel federal claims funding to both organizations.

[70] See “Harry Daniels, Métis, 1940 – 2004,” Native Leaders of Canada (accessed 16 March 2012); and Michael Poslums, “Congress of Aboriginal Peoples,” Canadian Encyclopedia, Institut Historica/Dominion Institute  (accessed 16 March 2012). The Canadian Métis Society gave rise to the Native Council of Canada, which was renamed the Congress of Aboriginal Peoples in 1993. “Since 1971,” Congress of Aboriginal Peoples Website (accessed 16 March 2012), lists the earlier name as the Aboriginal Congress of Canada’ “About Us,” Congress of Aboriginal Peoples Website, (accessed 16 March 2012), lists the founding name as the Native Council of Canada. See also “Tony Belcourt, Aboriginal Rights Leader and Advocate,” http://tonybelcourt.com/ (accessed 16 March 2012).

[71] Congress of Aboriginal Peoples, “1979 Declaration of Metis and Indian Rights.”

[72] Ibid.

[73] Lawrence, “Real” Indians and Others, 95.

[74] Fiske and George, “Seeking Alternatives to Bill C-31,” 1?, 5, 9, note,

“Sandra Lovelace took the issue before the United Nations Committee on Human Rights under the Optional Protocol to the International Covenant on Civil and Political Rights. On July 30, 1981 Canada, which had signed the convention in 1976, was found to violate Indian women’s rights ‘to enjoy their own culture … religion [and] language’ (Lovelace v. Canada, 1981). The 1985 amendments followed from the international embarrassment of this finding.”

[75] The Act was: Canada, 33rd Parliament, 2nd Session, “An act to amend the Indian Act – Bill C-31” (1985).

[76] Fiske and George, “Seeking Alternatives to Bill C-31.”

[77] Moss and Gardner-O’Toole, “Aboriginal People: History of Discriminatory Laws,” note that the section had originally been rationalized as a means to

“prevent the domination and exploitation of reserve communities by white men. Some question this claim, since Indian women could not regain Indian status even after divorce or death of their non-Indian husbands (except by remarrying an ‘Indian’).”

Bill C-31,” indigenous foundations, arts.ubc.ca (accessed 15 March 2012).

[78]Bill C-31.”

[79] Morris Manyfingers Jr. “Determination of Indian Band Membership: An Examination of Political Will,” Canadian Journal of Native Studies 6. 1 (1986): 64.

[80]Bill C-31.”

[81] Fiske and George, “Seeking Alternatives to Bill C-31,” v, note,

“In section 6, Bill C-31 created two classes of registration: 6(1) designates individuals deemed to have two parents with Indian status, while section 6(2) lists individuals with only one registered parent. For women to register their children, they now must disclose the father’s identity and prove his Indian status. Across Canada, Indian women have protested this policy. They object on a number of grounds, not the least of which is the intrusion into their personal lives. Disclosure of paternity can place them in social jeopardy, perhaps endanger them, and at the very least cause social conflicts where a man either denies paternity or refuses to acknowledge it to state authorities.”

[82] Ibid, v, 1, 6, state,

“Their children, having only one registered parent, gained the right to be placed on the Indian Register under section 6(2). Adult children with 6(2) status are not automatically registered in their mother’s band. Their membership depends on the membership rules applying to that band. If the band membership is regulated by Indian and Northern Affairs Canada (INAC), their membership is assured. However, under section 10, if the band regulates its own membership, it will regulate the inclusion of individuals registered under 6(2).” Additionally, “C-31 has not eliminated sexual inequality between girls and boys born to unmarried Indian men and non-Indian women between September 4, 1951 and April 17, 1985. Girls born in these circumstances are now entitled to be registered, but only under section 6(2). Sons born out of marriage to status fathers fare differently. In 1983, in Martin v. Chapman, the Supreme Court ruled that ‘illegitimate’ sons could not be treated differently than sons born in wedlock to status fathers. With this ruling, sons born to this combination of parents were entitled to be registered prior to 1985, and thus are now eligible to be registered as 6(1).” Further, they explain, “what is known as the second generation cut-off rule exacerbates women’s problems of identity, residence and membership. The rule constrains the rights of third generation descendants of reinstated women to band membership, on-reserve property, and other rights and privileges. In consequence of these status inheritance rules, as reinstated women age, they experience alienation from their children categorized as 6(2) status, whose First Nation membership is not protected by C-31. While C-31 provides that non-status, dependent children have the right to reside on reserves, no residency provisions are made for adult children whose aging parents become dependent on non-status children and grandchildren.” They add, “Discrimination with respect to entitlements that come with registration through the Indian Act remains a barrier to women’s equality within First Nations communities. Section 6(2) of the current Indian Act results in the termination of Indian status after two successive generations of intermarriage between status and non-status persons as defined by the Act. Descendants of out-marrying women do not have the same access to status as the descendants of men who married non-Indians. Women who have been reinstated are registered under section 6(1)(c) of the Act. Because their non-Indian male spouses have never acquired status, their children are registered as 6(2) and are prohibited from transferring status to the third generation unless they partner with someone who is also registered.”

See also “Indian Act,” www.okib.ca/history/indian_act.php (accessed 2 February 2012), notes “Jurisdiction over ‘Citizenship’ remains an issue of contention between First Nations and the federal government.”

[83]Michel Band History.”

[84] Fiske and George, “Seeking Alternatives to Bill C-31.” Manyfingers, “Determination of Indian Band Membership,” 64. “Since the creation of the Indian Act in 1868, the Federal Government of Canada has consistently imposed its own terms and conditions upon the Indian communities by defining those factors which comprise ‘Indianness.’”

[85] Thus, Lawrence, “Real” Indians and Others, 86, states, “it is impossible to accurately disconnect the cultural and historical mixed-blood meanings of Métisness with the legal issue of being non-status.”

[86] See Lawrence, “Real” Indians and Others, 85. The Labrador Métis.

[87] See Lawrence, “Real” Indians and Others, 86, who observes, “how Indianness is regulated in Canada has a central effect on how Métisness is understood, regardless of the various definitions adopted by Métis organizations in western Canada.” See also Paul Seesequasis, “The Republic of Tricksterism,” Grand Street 61, All American (1997); Saskatchewan Archives Board, IH-378, transcript disc 91, interview with David  James Harding, conducted by Murry Dobbin, trans. Heather Bouchard (11 August 1977), 1 – 24; and Saskatchewan Archives Board, IH-376, transcript disc 90, interview with Jean I. Goodwill, conducted by Murray Dobbin, trans. Heather Bouchard (3 July 1977), 1 – 21.

[88] Renisa Mawani, “Genealogies of the Land: Aboriginality, Law, and Territory in Vancouver’s Stanley Park,” Social and Legal Studies 14. 3 (2005): 316, notes,

“the legal pursuit for an Aboriginal essence is (im)possible for a number of reasons. For one, the law, backed by state power, has historically been central in determining who constitutes an Aboriginal person and a recognized community and in doing so, has created an otherness that can never fully be.”

[89] See John Leslie and Ron Maguire, eds., with Robert G. Moore, The Historical Development of the Indian Act, 2d ed. (Ottawa: Treaties and Historical Research Centre, Policy, Planning and Research Branch, Indian and Northern Affairs Canada, 1978), who illustrate that a first principle of British Indian policy in North America evident from 1670 was that of ‘protection.’ It was carried forward to the Royal Proclamation of 1763. The British North America Act of 1867 confirmed a ‘special status’ for Aboriginal people, with the Dominion government acting as a guardian of their interests — including their persons and their property. In reviewing Leslie and Mcquire’s text, it is difficult to find that the pattern implied by their collection of government policy from 1867 to 1945 is one of protection (along with ‘civilization’ and ‘assimilation’). Rather, contrary to overt assertions, but in keeping with what the innumerable contradictions of Canadian policy suggest, subjugation, extinction, and dispossession seem to be the underlying themes. See also Kennedy, “At least 4,000 aboriginal children died in residential schools, commission finds.”

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: