When the framers of Confederation met to negotiate the shape of the new Dominion, no Aboriginal people were at the conference tables and Aboriginal issues were scarcely on the minds of the participants. In the end, the British North America Act of 1867 contained only a single line about Native peoples. "Indians and lands reserved for Indians" were designated a responsibility of the Dominion government among a list of its other powers in section 91. Behind the decision to make Aboriginal affairs a federal power was the concern of the Prime Minister, John A. Macdonald, and other Central Canadians interested in expanding agricultural settlement into the West that the Native people might prove antagonistic toward Canada’s designs for the region. Macdonald wanted the authority to deal directly with the situation and clear the way for future settlement.
No special provision was made initially for administering Aboriginal affairs. First the Secretary of State (to 1873) and then the Minister of the Interior were given responsibility for "Indian Affairs," clearly linking the project of interior settlement and development to Native policy. The government moved quickly to assert its control. It passed a bill in 1868 declaring that all revenue from the sale of Indian lands, or from the sale or lease of timber on those lands, would be put into a single fund over which the government would have sole jurisdiction.
The following year (1869), Macdonald’s government made the overall shape of its Indian policy even clearer with the passage of the Enfranchisement Act, a statute intended to encourage Native peoples to assimilate into Canadian society. This legislation was based in the pre-Confederation policies of the old British colonial office and the legislature of the old Province of Canada.
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.
Assented to 22nd May, 1868.
HER Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows :
1. There shall be a department to be called "The Department of the Secretary of State of Canada," over which the Secretary of State of Canada for the time being, appointed by the Governor General by commission under the Great Seal, shall preside ; and the said Secretary of State shall have the management and direction of the Department, and shall hold office during pleasure ...
5. The Secretary of State shall be the Superintendent General of Indian affairs, and shall as such have the control and management of the lands and property of the Indians in Canada.
6. All lands reserved for Indians or for any tribe, band or body of Indians, or held in trust for their benefit, shall be deemed to be reserved and held for the same purposes as before the passing of this Act, but subject to its provisions; and no such lands shall be sold, alienated or leased until they have been released or surrendered to the Crown for the purposes of this Act.
7. All moneys or securities of any kind applicable to the support or benefit of the Indians or any tribe, band or body of Indians, and all moneys accrued or hereafter to accrue from the sale of any lands or of any timber on any lands reserved or held in trust as aforesaid, shall, subject to the provisions of this Act, be applicable to the same purposes, and be dealt with in the same manner as they might have been applied to or dealt with before the passing of this Act.
8. No release or surrender of lands reserved for the use of the Indians or of any tribe, band or body of Indians, or of any individual Indian, shall be valid or binding, except on the following conditions :
- Such release or surrender shall be assented to by the chief, or if there be more than one chief, by a majority of the chiefs of the tribe, band or body of Indians, assembled at a meeting or council of the tribe, band or body summoned for that purpose according to their rules and entitled under this Act to vote thereat, and held in the presence of the Secretary of State or of an officer duly authorized to attend such council by the Governor in Council or by the Secretary of State; provided that no Chief or Indian shall be entitled to vote or be present at such council, unless he habitually resides on or near the lands in question ;
- The fact that such release or surrender has been assented to by the Chief of such tribe, or if more than one, by a majority of the chiefs entitled to vote at such council or meeting, shall be certified on oath before some Judge of a Superior, County or District Court, by the officer authorized by the Secretary of State to attend such council or meeting, and by some one of the chiefs present thereat and entitled to vote, and when so certified as aforesaid shall be transmitted to the Secretary of State by such officer, and shall be submitted to the Governor in Council for acceptance or refusal ...
11. The Governor in Council may, subject to the provisions of this Act, direct how, and in what manner, and by whom the moneys arising from sales of Indian Lands, and from the property held or to be held in trust for the Indians, or from any timber thereon, or from any other source for the benefit of Indians, shall be invested from time to time, and how the payments or assistance to which the Indians may be entitled shall be made or given, and may provide for the general management of such lands, moneys and property, and direct what percentage or proportion thereof shall be set apart from time to time, to cover the cost of and attendant upon such management under the provisions of this Act, and for the construction or repair of roads passing through such lands, and by way of contribution to schools frequented by such Indians ...
Following Confederation, the Canadian government moved to strengthen the provisions of the Gradual Civilization Act of 1857 in an effort to speed the assimilation of the Native peoples. The Act of 1869 sought to protect the status of reserve lands by further restricting the definition of who was regarded as an Indian. Now only persons of one quarter Indian blood could be acknowledged as having Indian status. The Act also worked to replace traditional tribal forms of government with administrative provisions more in keeping with English traditions. The office of chief was strengthened, and band council powers were increased to include the making of by-laws on matters affecting local public welfare. Bands were also empowered to employ an electoral system based upon three-year terms, if they chose to do so. A system of location tickets was established whereby an individual band member who chose to become enfranchised could receive land holdings on the reserve guaranteed to him and to his heirs in perpetuity. Canadian Natives expressed their dissatisfaction with the erosion of their traditional rights by largely refusing to participate in the government's plans for citizenship and assimilation. The Act also included provisions that systematically discriminated against Native peoples on the basis of gender since non-Indian women who married Indians acquired Indian status but Indian women who married non-Indian men lost theirs.
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.]
HER Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
1. In Townships or other tracts of land set apart or reserved for Indians in Canada, and subdivided by survey into lots, no Indian or person claiming to be of Indian blood, or intermarried with an Indian family, shall be deemed to be lawfully in possession of any land in such Townships or tracts, unless he or she has been or shall be located for the same by the order of the Superintendent General of Indian affairs; and any such person or persons, assuming possession of any lands of that description, shall be dealt with as illegally in possession, and be liable to be summarily ejected therefrom, unless that within six months from the passing of this Act, a location title be granted to such person or persons by the said Superintendent General of Indian affairs or such officer or person as he may thereunto depute and authorize ; but the conferring of any such location title shall not have the effect of rendering the land covered thereby transferable or subject to seizure under legal process ...
6. The fifteenth section of the thirty-first Victoria, Chapter forty-two, is amended by adding to it the following proviso:
“Provided always that any Indian woman marrying any other than an Indian, shall cease to be an Indian within the meaning of this Act, nor shall the children issue of such marriage be considered as Indians within the meaning of this Act; Provided also, that any Indian woman marrying an Indian of any other tribe, band or body shall cease to be a member of the tribe, band or body of which her husband is a member, and the children, issue of this marriage, shall belong to their father’s tribe only.” …
9. Upon the death of any Indian holding under location title any lot or parcel of land, the right and interest therein of such deceased Indian shall, together with his goods and chattels, devolve upon his children, on condition of their providing for the maintenance of their mother, if living; and such children shall have a life estate only in such land which shall not be transferable or subject to seizure under legal process, but should such Indian die without issue, such lot or parcel of land and goods and chattels shall be vested in the Crown for the benefit of the tribe, band or body of Indians, after providing for the support of the widow (if any) of such deceased Indian.
10. The Governor may order that the Chiefs of any tribe, band or body of Indians shall be elected by the male members of each Indian Settlement of the full age of twenty-one years at such time and place, and in such manner, as the Superintendent General of Indian Affairs may direct, and they shall in such case be elected for a period of three years, unless deposed by the Governor for dishonesty, intemperance, or immorality, and they shall be in the proportion of one Chief and two Second Chiefs for every two hundred people ; but any such band composed of thirty people may have one Chief; Provided always that all life Chiefs now living shall continue as such until death or resignation, or until their removal by the Governor for dishonesty, intemperance or immorality ...
13. The Governor General in Council may on the report of the Superintendent General of Indian Affairs order the issue of Letter Patent granting to any Indian who from the degree of civilization to which he has attained, and the character for integrity and sobriety which he bears, appears to be a safe and suitable person for becoming a proprietor of land, a life estate in the land which has been or may be allotted to him within the Reserve belonging to the tribe band or body of which he is a member ; and in such case such Indian shall have power to dispose of the same by will, to any of his children, and if he dies intestate as to any such lands, the same shall descend to his children according to the laws of that portion of the Dominion of Canada in which such lands are situate, and the said children to whom such land is so devised or descends shall have the fee simple thereof.
14. If any enfranchised Indian owning land by virtue of the thirteenth and sixteenth sections of this Act, dies without leaving any children, such land shall escheat to the Crown for the benefit of the tribe, band, or body of Indians to which he, or his father, or mother (as the case may be) belonged; but if he leaves a widow, she shall, instead of Dower to which she shall not be entitled, have the said land for life or until her re-marriage, and upon her death or re-marriage it shall escheat to the Crown for the benefit of the tribe, band or body of Indians to which he, or his father, or mother (as the case may be) belonged.
15. The wife or unmarried daughters of any deceased Indian who may, in consequence of the operation of the thirteenth and sixteenth sections of this Act be deprived of all benefit from their husband’s or father’s land, shall in the periodical division of the annuity and interest money or other revenues of their husband’s or father’s tribe or band, and so long as she or they continue to reside upon the reserve belonging to the tribe or band, and remain in widowhood or unmarried, be entitled to and receive two shares instead of one share of such annuity and interest money.
Statutes of Canada. 32-33 Victoria. Chapter 6. Ottawa: Canada. The Department of Justice, 1869. pp. 22-27.
Those policies were based on the fundamental belief that Aboriginal people were uncivilized but educable; the idea was to encourage gradual cultural change until Aboriginal men and women could be incorporated into Canadian society as full citizens. Today, we would use the term "assimilation" to describe this goal; then it was called "advancement" through a process of "civilization." However, policy-makers also believed that Native persons had to be "protected" against the less desirable aspects of Canadian society until such time as they were fully integrated. They would be made wards of the state, living on special lands reserved for them, under the watchful eye and tutelage of a government-appointed Indian agent. Eventually, when all Indians had become full citizens, according to the government, reserves and separate administration would no longer be needed and could be dismantled. In a curious contradiction, the policy aimed to assimilate people by first segregating them from the rest of Canadian society.
Special Native settlements already existed in the provinces of Ontario, Quebec, New Brunswick, and Nova Scotia prior to Confederation, and each colony had passed legislation from time to time for the administration of Indian affairs. However, the situation was different in the North-Western Territory and Rupert’s Land, acquired by the Dominion of Canada from the Hudson’s Bay Company in 1869, and different again in British Columbia, which joined Confederation in 1871. In these cases, the Canadian government had to negotiate the terms of its Indian policy; in doing so, it laid the groundwork for considerable future debate.
The rise of free trade following the Sayer trial had called into queston the ability of the Hudson's Bay Company to govern the far-flung territories of Rupert's Land, but the British Colonial Office had long been waffling over the issue of how to end the company's rule and establish colonial status. In 1865, John A. Macdonald agreed that Canada would take responsibility for these negotiations as a part of establishing the terms of Confederation. The state of Minnesota had fielded an offer of $10 million, and Canadian politicians feared the imminent loss of the transcontinental nation they envisaged should they fail to respond to the situation. William McDougall and George-Étienne Cartier negotiated on behalf of the Canadian government and eventually agreed to a price of £300,000 for the territory, with the HBC retaining five per cent of the land along the North Saskatchewan River and land around the existing trading posts in the northwest. Native and Métis residents of Rupert's Land were not consulted on these measures. As Cree chief Sweetgrass remarked, "We hear our lands were sold and we do not like it; we don't want to sell our lands; it is our property, and no one has the right to sell them."
When the Hudson’s Bay Company was formed in 1670, it was given legal responsibility for the civilian administration of a vast area of the northwest, but, since its primary concern was the fur trade, it was not interested in creating Indian reserves or encouraging people to learn to farm. The Canadian government had very different interests in the old Hudson’s Bay territory, a fact that was well known to people in the Red River settlement. Their concerns forced the government to establish the province of Manitoba in 1870, permitting a measure of local government in at least a small part of Rupert’s Land. As part of the bargain, the Dominion agreed to negotiate with the Indians of the area for title to their lands and to set aside 1.4 million acres of land (approximately 567,000 hectares) for children of "Métis heads of families." Following procedures that had been laid out by the British in the Proclamation of 1763, government representatives were sent first to Manitoba and then to other parts of the newly acquired territory to negotiate a series of agreements that have come to be known as the numbered treaties. The first was signed at Red River in 1871.
Although these treaties differed in specific detail, they all followed a basic pattern. In each, the Indians agreed to "cede, release, surrender and yield up to her Majesty the Queen, and her successors" all the lands described in the next section of the treaty. The Native peoples further promised to keep the peace and not to harass settlers. In return, the government promised to set aside tracts of land "for the sole and exclusive use of the Indians" and to provide annual payments ("annuities") of $5 per person and $25 for chiefs or $15 for headmen (men whom the government agreed to recognize as band leaders). Each treaty also had provisions for a one-time payment of gifts or expenses, a sort of signing bonus. Some treaties allocated annual amounts for expenditures on such things as twine (for fishing nets) or agricultural necessities. The treaties also contained vague references to education, with promises in some cases that the government would "maintain a school" on the reserves if people requested one. The process of negotiating and implementing these treaties did not go smoothly; these problems will be discussed in more detail later in this article. From the beginning, disagreements arose between Native people and the government over what was intended by, and included in, the treaty arrangements. One of the most fundamental disagreements was whether the treaties were agreements to share the lands and resources (as the Native people claimed), or agreements to give them up (as the government claimed).
The situation in British Columbia was somewhat different. Although a number of treaties had been negotiated with the Aboriginal peoples on Vancouver Island in the 1850s, these covered only very small tracts of land. The Native peoples had never officially ceded the mainland territory. Instead, miners, farmers, fishers, loggers, and other settlers had merely occupied the lands they wanted and denied that the original inhabitants had any further claim. The colonial government did not legally recognize Native villages as "reserves."
With the purchase of Rupert's Land, the Canadian government was well on its way to becoming a transcontinental nation. One obstacle remained, however. If Canada was to stretch along the 49th parallel to the Pacific Ocean, it would have to incorporate the colony of British Columbia into Confederation. Winning the colony's consent was not a foregone conclusion. British Columbia's political allegiance remained with Britain, whose navy protected the colony. Its economic links had been largely with the United States since the gold rush era of the 1850s. With the U.S. purchase of Alaska in 1867, annexation of the colony seemed an imminent threat. Moreover, Great Britain was reluctant to commit further naval resources to defend its far-flung colony. Influential members of the B.C. Assembly, such as Amor de Cosmos and John Robson, actively campaigned for an alliance with Canada, and British officials exerted their influence in support of Confederation. Prepared to be uncompromising in demanding favourable terms, B.C.'s three-member committee was pleasantly surprised when Canadian Prime Minister Sir John A. Macdonald and his Quebec lieutenant, Sir George-Etienne Cartier, agreed with alacrity to their demands: the assumption of the colony's debt, the implementation of responsible government, the commencement of a public works program, and the building of roads to connect the colony with the rest of the country. The Canadian representatives went one step further and agreed to start construction of a transcontinental railway within two years. British Columbia joined Confederation on 20 July 1871, stretching the new Dominion from sea to sea.
When British Columbia entered Confederation in 1871, article 13 of the Terms of Union dealt with arrangements for Native people. Among other things, it required that the British Columbia government "convey" lands to Ottawa "from time to time" for "the use and benefit of the Indians"—in other words, to be set aside as reserves. Article 13 also included the very peculiar promise that the Dominion government’s Indian policy in British Columbia would be "a policy as liberal as that hitherto pursued by the British Columbian Government..." Since the old colonial policy could scarcely be construed as "liberal," the meaning of this clause has been the subject of considerable debate ever since.
In British Columbia, as elsewhere, the process of transition did not go smoothly. The Dominion government selected and surveyed reserves between 1876 and 1908, but the provincial government objected almost immediately to their size and locations, initiating a political debate that led ultimately to the appointment of a royal commission in 1913 to try to resolve the impasse. Some First Nations objected to Canada’s actions on different grounds. In 1887, for example, the Nisga’a of the northwestern interior of British Columbia declared that the real issue was the fact that they had never agreed to give up the land to the Crown in the first place. Obviously, this perspective implied that the whole process of allocating reserves was invalid. Native ownership of the land (Aboriginal title) had to be agreed upon first.
Meanwhile, the Canadian government was directing its attention to other aspects of its Indian policy. In 1876, it passed The Indian Act, a complex piece of legislation that consolidated and refined existing laws pertaining to Native peoples. The intention was to take the various laws of the old provinces of Upper and Lower Canada and apply them to the whole Dominion. In other words, the Act did not introduce any new policy, but rather reiterated older ideas and attempted to make the law more effective in encouraging Aboriginal people to give up their traditions and assimilate into Canadian society. As the Superintendent-General of Indian Affairs, David Laird, explained, the new legislation was intended "to prepare him [the Indian] for a higher civilization by encouraging him to assume the privileges and responsibilities of full citizenship." Native people were to be treated as children under the law, with the Canadian government acting as their guardian until such time as it deemed that they had been assimilated.
The Indian Act of 1876 was designed to consolidate existing laws regarding the Native peoples of Canada into an organized and consistent administrative framework within the federal system. Although heavily amended, the Indian Act remains in place to this day. The Act of 1876 further defined the terms "Indian," "band," "reserve," and other words that had been employed in previous legislation concerning Aboriginal peoples. The provisions in place for enfranchisement of Native people remained largely the same, with the addition of terms that entitled Native male university graduates of the professions to immediate citizenship privileges. This latter provision was amended in 1880 to remove the automatic extension of of the franchise, instead making it available on application. Previously existing rules regarding band government procedures were also revised, with an electoral system established for chiefs and band council members under a three-year term of office. Previously existing life chiefs stayed in office unless they were removed from office by the government. Native voters repeatedly used the electoral procedure to maintain traditional chiefs and councillors in office rather than moving toward the democratic process envisaged by the legislators responsible for the Indian Act. The local band council was ostensibly responsible for the maintenance of public health and facilities such as roads and schools, but the local Indian agent actually controlled the funds necessary for the implementation of such programs. The goal of the Indian Act of 1876 was the assimilation of Natives, and the legislation sought to educate Natives in Canadian economic and democratic processes while retaining tight governmental control of finances and other meaningful aspects of Native lives. Aboriginal peoples resisted the assimilative aspects of the Act, while often effectively using the legislation to enhance the means of livelihood dictated by changing circumstances.
The Act began with a complex, but explicit, definition of who the government was prepared to recognize legally as an Indian. The definition began with the statement that "any male person" (and his wife and children) "of Indian blood reputed to belong to a particular band" would be recognized as an Indian in the eyes of the law. The term "Status Indian" is now used to refer to these people. However, the Act then went on to list a number of exclusions such as illegitimacy and foreign residence. Among these exclusions was an article declaring that any Indian woman who married a non-Indian would cease to be recognized as an Indian. The assumption was that by marrying a non-Indian, she had assimilated and thus had no further need of government assistance. Based on these legal definitions, the government began the process of drawing up an official list of Status Indians across the country.
Among the provisions to "protect" Native people from the dangers of Canadian society, The Indian Act made it illegal to sell alcohol to an Indian. Indians were not to pay taxes on their reserve lands, and they could not mortgage these lands be mortgaged. Proceeds from sales of lands or resources were to go to the government-administered Indian fund, rather than to be placed under local control.
Local control was a major issue for the framers of the Act. In 1869, the Enfranchisement Act had introduced a procedure for electing chiefs and band councils to replace indigenous forms of leadership. The Indian Act restated those provisions and spelled out a variety of powers that these chiefs could employ, allowing for a small measure of local control in matters like road maintenance and school repair. However, the authority to impose these elective institutions rested with the government.
One of the most important sections of the 1876 Act pertained to the concept of enfranchisement, or the right to vote. Drawing on the Gradual Civilization Act of 1857, the idea was to induce Native people to leave their communities and establish themselves on privately owned family farms, living as fully assimilated members of Canadian society. Under the 1876 Act, a man could apply to the local agent of the department for a "ticket" that entitled him to a specific piece of land taken from his band’s reserve. However, he had to prove that he was "sober and industrious." If his behaviour was satisfactory to the agent during a probationary period of three years, he would then be given legal title to that land, and, after an additional three years, he would be given his share of the band’s funds. At that point, he would no longer be considered an Indian under the law and would be governed by Canadian law just like any other citizen. That status would include the right to vote. The government hoped that by this enfranchisement process, Indian reserves would ultimately be divided up into private property and there would no longer be people identifying themselves as "Indian."
One of the interesting aspects of The Indian Act was the distinction it drew between eastern Natives, who were believed to be more "civilized" because of their longer contact with Christian missionaries and European settlers, and the western nations, who were believed to be more "primitive" and hence in greater need of government protection. Aboriginal people in British Columbia, Manitoba, and the North West-Territories were explicitly exempted from the possibility of enfranchisement and limitations were placed on the evidence they might give in courts. In the eyes of the law, they were to be considered children for the foreseeable future.
The Potlatch ceremonies of the tribes along the Pacific coast of British Columbia were an intrinsic part of cultural, social, and religious life. The ability of local leaders to give away their goods to others established the measure of their greatness, but the result was often the impoverishment of community leaders. This practice stood in direct contrast to Western ideals of private property that dictated that those with the greatest accumulation of goods were the most highly regarded members of the community. Missionaries saw the Potlatch ceremonies as antithetical to converting Aboriginal people to Christianity and encouraged the authorities to ban such events. Discouragement of Native religious cultural rituals became part of the means by which the Department of Indian Affairs encouraged assimilation and attempted to impose adoption of the "Canadian" way of life on Natives. The banning of the Potlatch, in an amendment to the Indian Act in 1884, was one of the first overt official steps in the effort to erase Native culture.
The 1876 Indian Act emphasized regulations regarding property and government, but, beginning in 1884, a series of amendments brought the coercive powers of the law to bear on Aboriginal cultural practices as well. The first amendment was an attempt to ban the potlatch and tamanawas by imposing fines and prison sentences on participants. The potlatch was an important ceremony practised by West Coast peoples in which large quantities of goods were given away to guests at a great feast. It established, or reinforced, the host’s status in the community while redistributing wealth. The tamanawas was a religious dance. Christian missionaries who were trying to eliminate indigenous religious beliefs and traditions that ran counter to Christian values had lobbied government for years for assistance in ending these ceremonies.
When the 1884 law proved insufficient in its first test case in a British Columbia court, it was reworded in an 1895 amendment to The Indian Act. This amendment also extended the ban to include "any Indian festival, dance or other ceremony" at which goods were given away; the Act was now taken to include the Sun Dance practised by, among others, the Plains Cree, Plains Ojibwa and Blackfoot. Sometimes called the Thirst Dance, it was an important sacred ritual in which participants sought spiritual help or gave thanks for help received. Some forms of the dance also included a ceremony in which young men pierced the skin of their chests with skewers that were attached to ropes hanging from a central sacred pole. The men then danced while the skewers mutilated their flesh.